SN STUDIO PTY LTD
T/A "SN Architects"
STANDARD TERMS AND CONDITIONS
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The terms and conditions stated below are applicable to all projects which SN Studio T/A "SN Architects" engages in. It is agreed that all customers who have accepted the quote and engaged us to work on their project have read, understood and agreed to these terms and conditions.
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1. GENERAL
1.1 Entire Agreement
The agreement contains the entire agreement between the parties and no regard shall be had to any prior agreement in conflict or at variance with it or to any correspondence or other documents relating to the subject matter of the Agreement which may have passed between the parties prior to the execution of this Agreement.
1.2 Law
The Agreement shall be governed by and construed with reference to the law for the time being in force in New South Wales.
1.3 Stamp Duties
All stamp and other duties payable in respect of this Agreement shall be paid by the Client.
1.4 Assignment
Neither party shall assign this Agreement or any part thereof without the prior written consent of the other party.
1.5 Copyright
Copyright in all drawings, specifications and other documents and in the Project executed from them remains the property of the Architect.
The drawings, specifications and other documents provided by the Architect are the property of the Architect whether the Project for which they are made be executed or not.
The client is licensed to use the drawing, specifications and other documents for the Project for which they have been prepared. They shall not be used for any other Project except by Agreement with the Architect. The Architect may terminate the licence if the Client breaches its obligation to pay the Architect.
1.6 Extent of Liability
The liability of the Architect to the Client arising out of the performance or non-performance of the Architectural services, whether under the law of contract or tort shall be limited to the cost of rectifying the Works which are the subject of the Architectural Services and notwithstanding the foregoing, the maximum amount of liability of the Architect to the Client arising out of the performance or non-performance of the Architectural Services, whether under the law of contract or tort shall not exceed the greater of any amount payable under a professional Indemnity claim as defined in the Agreement or the agreed fee.
The Architect shall be deemed to have been discharged from all liability in respect of the Architectural Services, whether under the law of contract or tort at the expiration of 6 years from either the Date of Practical Completion of the Works which are subject to the Architectural Services or the termination of the Architectural Services; whichever is the earlier.
The Architect does not give any warranty nor accept any liability in relation to the performance or non-performance of the Architectural Services except to the extent, if any, required by law or specifically provided for in this Agreement. If apart from this Clause any warrant would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law hereby excluded.
All limitations of liability under this Agreement shall apply for the benefit of the employees, agents and Sub-consultants of the Architect to the same extent as they apply for the benefit of the Architect against the Client or anyone claiming through or under the Client. For the purpose of this Clause 1.6, the Architect is or shall be deemed to be acting as the agent or trustee of employees, agents and Sub-consultants, and with their authority.
The Architect may have liability and the Client may have rights under the provisions of the Trade Practices Act and similar State and Territory legislation, which imply warranties into some contracts and which cannot be excluded or modified. 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 such rights and liabilities in relation to the supply of any goods or services pursuant to this Agreement.
2. ARCHITECT'S RESPONSIBILITY AND AUTHORITY
2.1 Services
The Architect shall perform the services referred to in this Agreement. In the performance of the services, the Architect shall exercise reasonable skill and care in conformity with the normal standards of the practice of architecture.
2.2 Authority
The Architect shall act as the Client's agent in such matters as are set out or implied in this Agreement and as are set out or implied in the particular contract or contracts adopted for the Project. Where the Architect's service includes the administration of a contract, all instructions to the contractor shall be given by the Architect unless the contract specifically provides otherwise.
2.3 Estimates
Any opinion of probable cost or ‘guestimate’ prepared by the Architect is intended to be indicative only and in the event that they are in error then, whatever the magnitude or error, the Architect, its directors, agents and employees shall not be liable on contract, in tort for negligence or otherwise or any law generally for any loss or damage including economic loss suffered thereby.
If a firm cost estimate is required, the Client shall directly engage a quantity surveyor or other person to perform estimates or shall instruct the Architect to engage the quantity surveyor or other person to provide estimate as agent for the Client or, alternatively, the Client may perform its own estimates.
The Architect shall not be liable in contract, in tort for negligence or otherwise or at law generally for any difference between the actual cost of construction and any budget or estimated cost of construction for the Project.
2.4 Contingency sums
We advise clients to allow contingency sums when dealing with builders, consultants, contractors, suppliers and other providers in and associated with the building industry. Costs may alter due to changes in instructions, changes required by site conditions, insufficient information, incomplete documentation etc. The extent of possible cost adjustment pertinent to each discipline should be discussed with the architect.
2.5 Documents
The Architect shall not be liable for any delay in preparation of any documents where the delay resulted from any act or omission of the Client, or any person for whom the Client is responsible including secondary consultants, or from any other cause beyond the Architect's control or in relation to any documents which were not requested on reasonable notice.
2.6 Variations to Design
The Architect shall not make any material alteration, addition to or omission from the approved design without the consent of the Client, except in the case of urgency during construction, in which case he shall notify the Client promptly.
2.7 Specialist Contractors and Suppliers
Where the client directs that specialist contractors or suppliers shall design part of the Project, the Architect shall be responsible only for the integration of such design into the design of the Project as a whole. The Architect shall not be responsible for checking the work of specialist contractors or suppliers and shall bear no responsibility or liability whatsoever in contract or in tort for negligence or otherwise or any law generally in relation to the design of the specialist contractors or suppliers or for any failure of the Architect to notice or detect any error, omission, defect, inadequacy or unsuitability for the Project in such design. The Client's agreements with specialist contractors and suppliers shall require such specialist contractors or suppliers to co-ordinate their work with the work of the Architect, secondary consultants and other specialist contractors or suppliers.
2.8 Natural Stone
Where stone is supplied for the project, SN Studio T/A "SN Architects" require an undertaking from the stone supplier, signed by the client, stating that the client has "viewed the full range of colour, occurrence of veins and holes and fills and over a sufficient number and range of samples, to be satisfied that they understand the vagaries of the product and that they have a realistic expectation and understanding of the quality and range of the product to be supplied”. The stone supplier is required to manage the expectations of the Client and must have an agreement with the Client clearly stating the expectations of the product.
SN Studio T/A "SN Architects" will not enter into any discussions regarding the quality control of the product, unless this undertaking is provided.
2.9 Secondary Consultants
Where secondary consultants are appointed, the Architect shall direct them in relation to the provision and integration of their services.
Secondary consultants employed by the Client, whether appointed and paid directly by the Client or by the Architect as agent for the Client, shall be responsible to the Client. The Architect's responsibility to the Client in respect of such secondary consultants shall be limited to directing them and integrating their services.
The Architect shall not be responsible for checking the work of secondary consultants and shall bear no responsibility or liability in contract, or in tort for negligence or otherwise or at law generally in relation to the design, documentation or other work of secondary consultants or for any failure of the Architect to detect any error, defect, inadequacy or unsuitability for the Project.
2.10 Secondary Consultants appointed by the client
Where secondary consultants are employed by the Client, the Client shall ensure that they are acceptable to the Architect and that their terms of appointment include a condition giving the Architect authority to direct them and integrate their services.
2.11 Inspection
Where the services to be provided by the Architect include contract administration, the Architect shall make such inspections as may reasonably be necessary in order to be satisfied that the buildings or other works forming the Project are in general accordance with the contract which the Architect is employed to administer.
Work to be performed under the relevant contract by contractors for the Project is not part of the services to be performed and provided by the Architect pursuant to this Agreement.
Should supervision of work be required, a clerk of works may be employed by the client subject to acceptance of the person so employed by the Architect. The clerk of works may be paid directly by the Client or through the Architect as agent of the Client, and he shall be under the Architect's direction.
3. THE CLIENT'S RESPONSIBILITIES
3.1 Client's Instructions
The Client shall give to the Architect instructions adequate to define the Client's requirements, including specific details relating to program and budget.
3.2 Site Particulars, Information, Counselling and Advice
Unless provided otherwise in this Agreement, the Client is responsible for the provision of all legal, survey and other particulars concerning the site, including particulars of existing structures, services and features, sub-surface conditions and adjoining sites and structures and for the provision of information, counselling or advice not normally provided by Architects.
3.3 Submissions
The Client shall consider the Architect's submissions and give decisions and provide required information within a reasonable time so as not to delay the Architect's work.
3.4 Client's Representative
The client if a natural person may, and if other than a natural person shall, nominate in writing a single natural person to give instructions to the Architect with respect to the Project.
If the Architect makes reasonable objection to the appointment of any person as the Client's representative, the Client shall nominate another single natural person as its representative.
3.5 Publication
The Architect is granted the right to erect reasonable signage on the site and is further permitted to photograph the works and to publish his involvement in the project, with permission of the Client who shall not unreasonably withhold such permission.
3.6 Contingency sums
We advise clients to allow contingency sums when dealing with builders, consultants, contractors, suppliers and other providers in and associated with the building industry. Costs may alter due to changes in instructions, changes required by site conditions, insufficient information, incomplete documentation etc. The extent of possible cost adjustment pertinent to each discipline should be discussed with the architect.
3.7 Client to monitor DA & other Approval expiry dates
It is the Client’s responsibility to track expiry dates for DA’s, s96’s, Construction Certificates or other Authority Consents, including contributions, deferred commencement or other such conditions as may apply. It is noted that lead times to activate approvals require action some months prior to expiry. The Architect shall not be held liable for failure to monitor approval dates and/or action such approvals in a timely manner. We strongly recommend that the Client monitor and track all applicable expiry dates in order to avoid DA’s and other consents becoming extinguished.
3.8 Contributions, Bonuses & Levies
It is acknowledged by the Client that Development Applications & other development actions will attract Council and other Authority levies and charges, the size and nature of which can vary greatly.
The client specifically acknowledges that applications exceeding Council’s controls and/or seeking to utilise the various “bonus” clauses available may readily attract significant levies, charges and contributions to Council and other Authorities, including but not limited to Voluntary Planning Agreements, Affordable Housing Levies and Contributions, increased s94 levies and the like, in addition to the usual contributions.
The client acknowledges that SN Studio T/A "SN Architects" are not expert in such matters and shall inform and satisfy themselves through their own investigations at all times regarding the nature and size of any Council, Authority or other contributions, bonuses or levies that may be applicable at each stage in a project, and the impact that such may have on the project.
4. FEE CONDITIONS
4.1 Architect's Fees
The Architect shall be entitled to payment for the services provided under this Agreement in accordance with the rates, percentages and amounts set out in the Agreement previously.
The hourly rates set out in the Agreement shall be subject to adjustment by the greater of an increase in accordance with the consumer price index or an increase notified from time to time at the sole discretion of the Architect. The client shall be notified of any adjustment to the rates 14 days prior to the execution of any works by the Architect at adjusted rates.
Payment for services which involve an approval by an authority shall not be contingent upon any authority approval of the Submission or Application.
4.2 Termination Cancellation or suspension
If in relation to stages for which a fee is payable:
i) the Project is terminated, cancelled or suspended before the work for that stage has been completed, then the fee payable for that stage shall be paid in proportion to the work complete at such time; or
ii) the services for that stage have been completed but prior to submission to Council or delivery to the client the Project is terminated, cancelled or suspended, then the fee for that stage shall be payable as set out in the Agreement for that stage without reduction.
iii) Payments in terms of clause 5 shall apply in addition to the payments set out in i) and ii) above.
4.3 Disbursements
In addition to the Architect's fees, the Client shall reimburse the Architect for expenses reasonable and properly incurred in connection with the provision of the Architect's services under the Agreement.
4.4 Charge
The Client charges the land on which the buildings or other works which are the subject of this Agreement are to be erected with the payment to the Architect of all monies that are or may become payable to the Architect by virtue of the provisions of this Agreement or otherwise arising from the carrying out of the Architect's services.
4.5 Progress Payments
4.5.1. The Architect shall be entitled to payment at intervals commensurate with the service provided to the date of the Architect's progress claim.
4.5.2. If predetermined monthly payment amounts are indicated in Special Conditions, instead of payment in accordance with Clause 4.5.1, the Architect shall be paid in accordance with such amounts, subject to any adjustment applicable under the terms of this Agreement.
4.5.3. If at the completion of payment of the predetermined amounts the Architect has not received full payment for its services, the Architect shall then be entitled to further payments in accordance with Clause 4.5.1.
4.5.4. The Client shall pay the Architect the amount to which the Architect is entitled under the Agreement within the period or by the date set out in the Special Conditions and if no such period or date is shown within seven days of submission of the Architect's claim for payment.
4.6 Validity of Accounts
If no disputation or clarification is received by the Architect within seven days of rendering an account, then the amount shown therein shall be immediately payable and the parties expressly agree that no dispute whatsoever shall be subsequently entered into with respect to it.
4.7 Overdue Payments
If any monies due to the Architect remain unpaid after the date upon which or the expiration of the period within which they should have been paid, then interest at 12% per annum shall be payable thereon up to and including the date upon which the monies are paid and shall be compounded at monthly intervals, unless the client has upon receipt disputed the invoice in writing.
4.8 Suspension of Work
The Architect may (at its absolute discretion) cease work and refuse to perform further work while any of its tax invoices, plus accrued interest, remain overdue and unpaid.
4.9 Changes in Instructions and Protracted Services
If the Architect's work is increased due to changes in the Client's instructions or requirements or if the Architect's work is increased or his services are protracted due to causes beyond his control, then (unless the Architect's fee is already on an hourly rate basis) an additional fee shall be payable to the Architect at hourly rates for such increased work, unless some other basis is agreed. Should any such additional fee become or appear likely to become payable, the Architect shall notify the Client.
4.10 Overtime
If overtime work by the Architect is required to meet special circumstances and is authorised by the Client, then any extra expense thus incurred shall be payable to the Architect.
4.11 Deferred Services
If, due to the Client's instructions or lack of instruction, a break in the continuity of the Architect's services occurs, the Architect shall be entitled to payment of any extra cost of completing its services provided however that to the extent that the break in continuity of the Architect's services is due to a default or omission of the Architect the extra cost of completing the Architect's services shall be borne by the Architect.
4.12 Review
Where the Architect is required to take over work provided by or on behalf of the Client as a basis for the work or a part of the work for which he is engaged, he shall review the work so provided. If following this review it is necessary for the Architect to make good any deficiencies in such work, then an additional fee shall be chargeable at hourly rates, unless some other basis of payment is agreed upon.
Notwithstanding such review, or the failure of the Architect to carry out such review, the Architect shall have no responsibility or liability in contract or in tort for negligence or otherwise or of law generally in relation to the work so provided or for any failure to notice or detect any error, omission, defect or inadequacy in the work so provided or in relation to its suitability for the Project.
4.13 Special Contracts
If, subsequent to entering this Agreement, the Client decides to use special conditions of contract or a contract for the Project other than one of the standard lump sum contracts commonly in use in the building industry and, as a consequence, the Architect is required to carry out additional work to document or administer the Project, then the Architect shall be entitled to an additional fee on an hourly basis for the extra work involved.
4.14 Other Services
Unless otherwise agreed, the Architect shall be entitled to payment on an hourly fee basis for any services performed by the Architect, where the fee for such services is not stated in this Agreement. Hourly rates are applicable where travel time is charged.
4.15 Records
The Architect shall keep records of services provided on an hourly rate basis, additional services and disbursements and expenses pertaining to services on a generally recognised accounting basis. The Client or its authorised representative may inspect the records so kept at mutually convenient times by arrangement with the Architect
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5. GOVERNMENATL APPROVALS
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5.1 SN Studio T/A "SN Architects" will use its best endeavors 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 SN Studio T/A "SN Architects" and the Designer endorses the Design.
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5.2 The Client acknowledges and agrees that SN Studio T/A "SN Architects" cannot, and does not, make any guarantee, warranty or representation:
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that any Design or any part of any Services will be approved by any responsible authority; or
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to the outcome of the application of any Approval Requirements to the Design or any part of the Services.
5.3 Subject to next clause if drawings or documents provided or produced by SN StudioT/A "SN Architects" for the purpose of satisfying Approval Requirements do not satisfy those Approval Requirements, SN Studio T/A "SN Architects" 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.
5.4 Previous clause does not apply to any drawings or documents that do not satisfy Approval Requirements because of anything that, in SN Studio T/A "SN Architects" reasonable opinion, has been included, done, or omitted, by or on behalf of the Client against SN Studio’s advice.
6. TERMINATION
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This Agreement may be terminated at any time by either party on the expiration of reasonable notice in writing or immediately on insolvency or liquidation proceeding against either party.
Upon termination of this Agreement, the Architect shall be paid for all work it has carried out up to date of termination.
6.1 In accordance with Clause 4.2, the Architect shall also be entitled to all expenses reasonably incurred by it in contemplation of the provision of the balance of the services to be provided by the architect under this Agreement, to all expenses reasonably incurred by the Architect as a consequence of the termination of this Agreement and to compensation at the percentage rate (stated in the Special Conditions to the Terms of Business), of the fees applicable to the remainder of the services which were to be performed by the Architect at the date of termination UNLESS this Agreement has been terminated upon failure by the Architect to either remedy any substantial failure to perform or observe any provision of this Agreement, or to give sufficient cause as to why such failure should not be remedied within, in either case fourteen (14) days of written notice from the client requiring that such failure be remedied, in which case the Architect's right shall be limited to payment for the work carried out up to the date of termination.
6.2 Either party ("Non-Defaulting Party") is entitled by written notice to the other party (“Defaulting Party”) to terminate the Architect’s Agreement should the Defaulting Party is in default of any of the terms and conditions in this Agreement and fails to rectify that default within thirty (30) days after the Non-Defaulting Party has given written notice to the Defaulting Party specifying such default and requiring rectification.
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NSW ARCHITECTS CODE OF PROFESSIONAL CONDUCT
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Code of Professional Conduct provides architects and their clients with a statement of the standards required of architects when engaged to provide architectural services.
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Nominated architect: Soroosh Moshksar Reg No:11278
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