Copyright Definitions
In this Agreement, the following words shall have their corresponding meaning unless the context requires otherwise:
“Co-lab” means Co-lab Architects Pty Ltd, its successors and assigns or any person acting on behalf of and with the authority of Co-lab Architects Pty Ltd.
“Agreement” means this Agreement including any schedule and any other agreement expressed to be supplemental to this Agreement and all other amendments to such a document.
“Business Day” means a day on which the major trading banks are open for ordinary business in the state in which Co-lab has its principal place of business, excluding a Saturday, Sunday, or public holiday.
“Client” means the person/s, entities, or any person acting on behalf of and with the authority of the Client requesting Co-lab to provide the Services as specified in any proposal, quotation, order, invoice, or other documentation, and:
if there is more than one Client, is a reference to each Client jointly and severally; and
if the Client is a partnership, it shall bind each partner jointly and severally; and
if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and
includes the Client’s executors, administrators, successors and permitted assigns.
“Consultant and “Sub-contractor” means any person or persons engaged by Co-lab to provide specialised works on behalf of the Client with respect of the Project.
“Fee” means the Fee payable for the Services as agreed between Co-lab and the Client in accordance with clause 8 of this Agreement and Item 4 of the Schedule to this Agreement.
“Incidental Items” means any goods, documents, designs, drawings, or materials supplied, consumed, created, or deposited incidentally by Co-lab in the course of Co-lab conducting, or supplying to the Client any Services.
“Interest Rate” means the interest rate calculated in accordance with clause 21.1 of this Agreement.
“Project” means the project as specified in Item 1 of the Schedule of this Agreement for which the Services are provided by Co-lab to the Client.
“Services” means all Services supplied by Co-lab to the Client at the Client’s request from time to time and more particularly as described in Item 2 of the Schedule to this Agreement.
“Term” means the term of this Agreement as specified in Item 3 of the Schedule of this Agreement.
“Writing” includes printing, typing, lithography and other modes of reproducing words in a visible form and “written” has a corresponding meaning.
“Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Agreement, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including, but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.
“GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).
Construction
In this Agreement, unless the context requires otherwise:
Numbers. Words importing the singular include the plural and vice versa.
Gender. Words importing any gender include the other genders
Statutory amendments. A reference to a statute, ordinance, code, or other law includes regulations and other statutory instruments under it and consolidations, amendments, re-enactments, or replacements of any of them (whether of the same or any other legislative authority having jurisdiction).
Joint obligations. An obligation incurred in favour of two or more parties shall be enforceable by them jointly and severally and vice versa.
Parts of Agreement. References to this Agreement include its recitals, clauses, schedules, and annexures.
Headings. Headings shall be ignored in construing this document.
Plurals. The singular shall include the plural and vice versa and words importing one gender shall include every gender and a reference to a person shall include any other legal entity of whatsoever kind and vice versa.
Acceptance
The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by Co-lab.
In the event of any inconsistency between the terms and conditions of this Agreement and any other prior document or schedule that the parties have entered into, the terms of this Agreement shall prevail.
Any amendment to the terms and conditions contained in this Agreement may only be amended in writing by the consent of both parties.
The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with Co-lab and it has been approved with a credit limit established for the account.
In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, Co-lab reserves the right to refuse delivery.
Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.
Change in Control
The Client shall give Co-lab not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees or business practice). The Client shall be liable for any loss incurred by Co-lab as a result of the Client’s failure to comply with this clause.
Cost
From the commencement of this commission the Client and Co-lab shall jointly determine and agree on a realistic amount for the Total Project Budget and from this, determine the anticipated Indicative Cost of Works in consideration of the Scope of Works. The Cost of Works as herein defined shall be adjusted during project progress in accordance with any advice obtained from the Client’s cost consultant, tenders received for the construction of the Works and/or any other adjustments required to determine the final Cost of Works.
Cost of Works
The “Cost of Works” is exclusive of GST and is defined as the final cost of all works designed by Co-lab and by the Consultants as co-ordinated by Co-lab.
The Cost of Works includes the cost of all service installations, built-in and loose furniture and equipment appertaining to the Project building, as co-ordinated by Co-lab and included in the documentation, together with the cost of all materials as though they were new. The cost of Works includes the cost of any, and all equipment, material, labour, and cartage associated with any part of the works when provided by the Client but assessed by Co-lab as if these additional items were provided by the contractor/builder or other separate contractor.
Total Project Budget
The “Total Project Budget” is defined as the Cost of Works together with all other costs associated with the Project. Other costs in the Total Project Budget includes, but is not limited to, any changes in the Cost of Works as per clause 8.2, Co-lab’s Fee, Consultant fees, other professional fees, authority fees and charges, GST and, when not included in the Cost of Works, landscaping costs and/or loose fittings and furniture.
Fee and Payment
At Co-lab’s sole discretion, the Fee shall be either;
as indicated on invoices provided by Co-lab to the Client in respect of Services supplied; or
Co-lab’s quoted Fee (in additional to reimbursable expenses) as per Item 4 of the schedule or any other agreement as to fees which, subject to clause 8.2, which shall be binding upon Co-lab provided that the Client shall provide their acceptance in writing within thirty (30) days.
Co-lab reserves the right to change the Fee in the event of a variation to Co-lab’s Fee as agreed by the Client pursuant to clause 8.1 of this Agreement. In the event the Client requests changes after commencement of the Services then Co-lab (at its sole discretion) shall be entitled not only to vary the Fee but the term of the Agreement. All variations shall be in writing detailing the reason for the variation, the impact on the Fee, term and/or the scope of the Agreement and shall be signed by both parties. The Client shall be required to respond to any variation submitted by Co-lab within ten (10) working days. Failure to do so will entitle Co-lab to add the cost of the variation to the Fee. Payment for all variations must be made in full at the time of their completion.
At Co-lab’s sole discretion, a deposit may be required.
The Client agrees to indemnify Co-lab for all costs and expenses (including, but not limited to, disbursements, postage, search fees, couriers and the like expenses), incurred by Co-lab in connection with the provision of the Services. Co-lab shall fully document all such expenses for submission to the Client.
Time for payment for the Services being of the essence, the Fee will be payable by the Client on the date/s determined by Co-lab, which may be:
before commencement of the Services;
by way of instalments/progress payments in accordance with Co-lab’s payment schedule and may submit a detailed payment claim at intervals not less than monthly for Services performed up to the end of each month. The value of Services so performed shall include the reasonable value of authorised variations;
the date specified on any invoice or other form as being the date for payment; or
failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by Co-lab.
Payment may be made by cash, cheque, bank cheque, electronic/on-line banking, credit card (a surcharge per transaction may apply), or by any other method as agreed to between the Client and Co-lab.
Co-lab may in its discretion allocate any payment received from the Client towards any invoice that Co-lab determines and may do so at the time of receipt or at any time afterwards.
The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by Co-lab nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify Co-lab in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as Co-lab investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in Co-lab placing the Client’s account into default and subject to default interest in accordance with clause 21.1.
GST and other taxes and duties that may be applicable shall be added to the Fee except when they are expressly included in the Fee.
Extension of Contract Period
Co-lab shall as per clause 8.2 above be entitled to claim an extension to the term of the Agreement in the event of delays resulting from any matter whatsoever which is not entirely under the control of Co-lab. These matters shall include, but are not limited to delays caused by:
response(s) to information request(s) made by Co-lab to the Client not being available when required;
approval authorities’ response times for requests for preliminary decisions/information;
information from Consultants, councils or referral agencies not being available when required;
changes to the design brief being requested by the Client;
time taken by the approval authority for the granting of required approvals; or
any other variation to the Agreement.
Compliance with laws
The Client and Co-lab agree that both parties shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the provision of Services by Co-lab.
The Client shall obtain (at the expense of the Client) all licences and approvals that may be required to enable Co-lab to provide the Services.
Provision of Services
Any time specified by Co-lab for delivery of the Services is an estimate only and Co-lab will not be liable for any loss or damage incurred by the Client as a result of delivery being late. However, both parties agree that they shall make every endeavour to enable the Services to be supplied at the time and place as was arranged between both parties. In the event that Co-lab is unable to supply the Services as agreed solely due to any action or inaction of the Client then Co-lab shall be entitled to charge a reasonable fee for re-supplying the Services at a later time and date and the Client shall be liable for those costs.
Each stage of the Services shall be signed off by the Client prior to proceeding with the next stage as a record of the Services at that stage.
Notwithstanding anything contained elsewhere in this Agreement, Co-lab and the Client hereby expressly agree that:
the contractor and/or builder is responsible for the supervision of the works during the construction state and that the contractor/builder is required (under the provision of the relevant Building Act) to warrant the work, upon completion, to be fit for purpose; and
Co-lab does not supervise the construction of the works or provide supervision services as part of this Agreement. During the construction stage Co-lab will inspect the works to ensure compliance with the contract documents and perform all duties as required of Co-lab and defined in the building contracted selected for the Project.
Nominated Consultants and Sub-contractors
Co-lab shall engage Consultants/Sub-contractors as specified in the quotation acting solely as agent on behalf of the Client and the following shall apply:
Co-lab shall be entitled to enter into contracts with such Consultants/Sub-contractors in the name of the Client; and
the Client shall be responsible for all payments to such Consultants/Sub-contractors; and
where Co-lab pays the Consultant’s or Sub-contractor’s account on behalf of the Client, the Client shall reimburse Co-lab for the payment of the Consultant’s or Sub-contractor’s account together with an account-handling fee within ten (10) days from the date of submission of the account by Co-lab to the Client; and
if the Client does not reimburse Co-lab within ten (10) days from the date of submission of the account in accordance with subparagraph (c) above, Co-lab shall be entitled to;
charge interest at the Interest Rate from the date of payment of the Consultant’s or Sub-contractor’s account by Co-lab to the date of reimbursement to Co-lab by the Client; and/or
charge an administration fee as allowed by this Agreement.
Co-lab does not warrant the accuracy or quality of the Consultant’s or Sub-contractor’s work or warrant that the recommendations of the Consultant/Sub-contractor are appropriate or adequate or are fit for their purpose or that they are not given negligently. The Client agrees that they shall not make any demand on Co-lab or commence any legal proceedings against Co-lab and Co-lab shall have no liability, whether in negligence or otherwise, to the Client in relation to any work performed by the Consultant/Sub-contractor.
At the option of the Client notified to Co-lab in writing, the Client shall engage relevant Consultants required for the Project (after consultation with Co-lab) and shall be liable for all payments to such Consultants.
Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Co-lab’s Consultants or Sub-contractors without the authority of Co-lab.
Co-lab’s Obligations
Co-lab warrants that it has the necessary skills, competence, and experience to undertake and complete the Services and shall at all times apply such skills, competence and experience in performance of the Services.
Co-lab accepts that it shall be appointed and shall be entitled to act as the Client’s agent for the purposes of the Project for the term of this Agreement.
Co-lab represents that Co-lab, and its directors maintain current registration with the Architects Registration Board and maintains current professional indemnity insurance.
If the Client shall instruct Co-lab to change the scope of the Services, Co-lab shall promptly notify the Client in writing of any variation in Fees pursuant to clause 8.2 of this Agreement. The Client agrees that additional fees may be payable.
Co-lab shall keep full records of the Services provided in the manner determined by Co-lab and shall provide to the Client with updates with respect of the Services at the time and in the manner determined by Co-lab in Co-lab’s absolute discretion.
Client’s Obligations
The Client appoints Co-lab as its agent for the purposes of the Project for the term of this Agreement.
The Client shall provide to Co-lab all documentation and other information as and when requested. The Client acknowledges that the ability of Co-lab to provide the Services is dependent upon the Client complying with this sub-clause.
The Client acknowledges that if their requirements change during the term of the Agreement, the Fee may be subject to change.
The Client warrants that the site of the Project complies with all relevant laws and regulations and undertakes to appoint consultants to identify, handle and/or remove any hazardous or toxic materials or substances which may be located on the site of the Project, prior to the commencement of this Agreement.
Risk
Irrespective of whether Co-lab retains ownership of any Incidental Items all risk for such items shall pass to the Client as soon as such items are delivered to the Client and shall remain with the Client until such time as Co-lab may repossess the Incidental Items. The Client must insure all Incidental Items on or before delivery.
Co-lab reserves its right to seek compensation or damages for any damage, destruction or loss suffered in relation to the Incidental Items as a result of the Client’s failure to insure.
The plans, specifications (including CAD plans) and other information provided by the Client and/or external consultants (including, but not limited to, engineers, surveyors, and other consultants etc) to Co-lab are accurate. The Client acknowledges and agrees that in the event that any plans, specifications (including CAD plans) or information provided by the Client and/or external consultants (including, but not limited to, engineers, surveyors, and other consultants etc) is inaccurate:
Co-lab accepts no responsibility or liability for any loss, damages, or costs however resulting from these inaccurate plans, specifications or other information;
Co-lab is entitled to suspend or terminate the supply of Services to the Client if there is a material change to the scope of Services as a result of inaccurate plans, specifications or other information; and
Co-lab will not be liable to the Client for any loss or damage the Client suffers because Co-lab has exercised its rights under this clause.
The Client accepts that where natural materials have been selected for a Project, such materials may change in appearance or dimension following exposure to climatic conditional and this is normal behaviour for these materials.
Co-lab does not guarantee the appearance, dimensions, consistency of colour and/or texture of any natural materials selected following approval of samples of the particular natural materials by the Client.
Upon completion, the Client accepts that every building will require ongoing maintenance of its fabric, systems, finishes and equipment. The building owner is responsible for the ongoing and regular maintenance of a building.
Title
Co-lab and the Client agree that where it is intended that the ownership of Incidental Items is to pass to the Client that such ownership shall not pass until:
the Client has paid Co-lab all amounts owing for the Services; and
the Client has met all other obligations due by the Client to Co-lab in respect of all contracts between Co-lab and the Client.
Receipt by Co-lab of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared, or recognised and until then Co-lab’s ownership in the Incidental Items or rights in respect of the Services shall continue.
It is further agreed that:
the Client is only a bailee of the Incidental Items and must return the Incidental Items to Co-lab immediately upon request by Co-lab;
the Client holds the benefit of the Client’s insurance of the Incidental Items on trust for Co-lab and must pay to Co-lab the proceeds of any insurance in the event of the Incidental Items being lost, damaged or destroyed;
the Client must not sell, dispose, or otherwise part with possession of the Incidental Items. If the Client sells, disposes, or parts with possession of the Incidental Items then the Client must hold the proceeds of sale of the Incidental Items on trust for Co-lab and must pay or deliver the proceeds to Co-lab on demand.
the Client should not convert or process the Incidental Items or intermix them with other goods, but if the Client does so then the Client holds the resulting product on trust for the benefit of Co-lab and must dispose of or return the resulting product to Co-lab as Co-lab so directs.
the Client shall not charge or grant an encumbrance over the Incidental Items nor grant nor otherwise give away any interest in the Incidental Items while they remain the property of Co-lab; and
the Client irrevocably authorises Co-lab to enter any premises where Co-lab believes the Incidental Items are kept and recover possession of the Incidental Items.
Personal Property Securities Act 2009 (“PPSA”)
In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.
Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:
all Incidental Items previously supplied by Co-lab to the Client;
all Incidental Items will be supplied in the future by Co-lab to the Client and the proceeds from such Incidental Items; and
all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest, or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to Co-lab for Services – that have previously been provided and that will be provided in the future by Co-lab to the Client.
The Client undertakes to:
promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up to date in all respects) which Co-lab may reasonably require to;
register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;
register any other document required to be registered by the PPSA; or
correct a defect in a statement referred to in clause 17.3(a)(i) or 17.3(a)(ii);
indemnify, and upon demand reimburse, Co-lab for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;
not register a financing change statement in respect of a security interest without the prior written consent of Co-lab;
not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Items in favour of a third party without the prior written consent of Co-lab.
Co-lab and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.
The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
Unless otherwise agreed to in writing by Co-lab, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.
The Client must unconditionally ratify any actions taken by Co-lab under clauses 17.2 to 17.5.
Subject to any express provisions to the contrary (including those contained in this clause 17), nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.
Security and Charge
In consideration of Co-lab agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).
The Client indemnifies Co-lab from and against all Co-lab’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising Co-lab’s rights under this clause.
The Client irrevocably appoints Co-lab and each director of Co-lab as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 18 including, but not limited to, signing any document on the Client’s behalf.
Defects, Warranties and the Competition and Consumer Act 2010 (CCA)
The Client must inspect Co-lab’s Services on completion of the Services and must within seven (7) days notify Co-lab in writing of any evident defect in the Services or Incidental Items provided (including Co-lab’s workmanship) or of any other failure by Co-lab to comply with the description of, or quote for, the Services which Co-lab was to supply. The Client must notify any other alleged defect in Co-lab’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow Co-lab to review the Services or Incidental Items that were provided.
Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).
Co-lab acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.
Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, Co-lab makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. Co-lab’s liability in respect of these warranties is limited to the fullest extent permitted by law.
If the Client is a consumer within the meaning of the CCA, Co-lab’s liability is limited to the extent permitted by section 64A of Schedule 2.
If Co-lab is required to rectify, re-supply, or pay the cost of re-supplying the Services under this clause or the CCA, but is unable to do so, then Co-lab may refund any money the Client has paid for the Services but only to the extent that such refund shall take into account the value of Services and Incidental Items which have been provided to the Client which were not defective.
If the Client is not a consumer within the meaning of the CCA, Co-lab’s liability for any defective Services or Incidental Items is:
limited to the value of any express warranty or warranty card provided to the Client by Co-lab in Co-lab’s sole discretion;
otherwise negated absolutely.
Notwithstanding clauses 19.1 to 19.7 but subject to the CCA, Co-lab shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:
the Client failing to properly maintain or store any Incidental Items;
the Client using the Incidental Items for any purpose other than that for which they were designed;
the Client continuing to use any Incidental Item after any defect became apparent or should have become apparent to a reasonably prudent operator or user;
interference with the Services by the Client or any third party without Co-lab’s prior approval;
the Client failing to follow any instructions or guidelines provided by Co-lab;
fair wear and tear, any accident, or act of God.
Intellectual Property
Where Co-lab has designed, drawn, or developed Incidental Items for the Client, then the copyright in any Incidental Items shall remain the property of Co-lab. Under no circumstances may such designs, drawings and documents be used without the express written approval of Co-lab.
Designs, drawings, or sketches, furnished by Co-lab, dummies, models or the like devices made or manipulated by Co-lab or made from Co-lab’s original design, or from a design furnished by the Client, remain the exclusive property of Co-lab unless otherwise agreed upon in writing. They shall not be used for any purpose other than that nominated by Co-lab and no ideas obtained there from may be used without the consent of Co-lab. Co-lab shall be entitled to compensation from the Client for any unauthorised use of such items.
The Client shall not be entitled to use Co-lab’s name nor the name of any director, employee, or agent of Co-lab on any marketing or like material for the Project unless Co-lab provides their written consent.
Where the Client provides Co-lab any materials including sketches, photographs, drawings, plans or concepts upon which Co-lab is to base the work (including, but not limited to incomplete work from a previous architect engaged by the Client), the Client grants Co-lab a licence to use and reproduce any of the materials for the express purpose of completing the work under this Agreement. The Client shall also indemnify and keep indemnified Co-lab at all times against all actions, proceedings, claims, demands, liabilities, either express or implied, and all costs, losses, losses of profit, damages and expenses whatsoever which may be taken against Co-lab or incurred or become payable by Co-lab resulting or arising from any claim or infringement of any patent, registered design, trademark, copyright or any other property interest of a third party which may result out of the use by Co-lab of the materials.
Designs submitted by Co-lab on a speculative basis shall remain the property of Co-lab. They shall not be used for any purpose other than that nominated by Co-lab and no ideas obtained there from may be used without the consent of Co-lab. Co-lab shall be entitled to compensation from the Client for any unauthorised use of such sketches and dummies.
Designs, drawings, or sketches, furnished by Co-lab, dummies, models or the like devices made or manipulated by Co-lab or made from Co-lab’s original design, or from a design furnished by the Client, remain the exclusive property of Co-lab unless otherwise agreed upon in writing.
Co-lab shall retain the original designs. The Client is entitled to one set of designs as a record of the Service and shall not be entitled to an electronic copy of the designs.
The Client is licensed to use any materials, documents and drawings designed by Co-lab to produce the Project for which the documents were intended, provided that:
the entitlement applies only to the site or that part of the site to which the design relates;
Co-lab has completed the particular stage or stages of the Services for which Co-lab has been commissioned; and
Fees properly due to Co-lab in accordance with this Agreement have been paid.
In the event the Services are terminated during any particular stage of the Services, then the Client shall only be licensed to use those documents and drawings which have been completed for the previous stages of the Services. The documents and drawings for the partially completed stage may only be used with the written consent of Co-lab which consent may include, but not be limited to, conditions in relation to payment of fee, including license fees, recognition of Co-lab, responsibility for incomplete documents and drawings and any other conditions which Co-lab deems fit. Such consent shall not be unreasonably withheld.
Where the Client wishes to reproduce the design on another site or another part of the site, then the Client may only do so with the written consent of Co-lab which consent may include, but not be limited to, a condition in relation to the payment of an additional fee as Co-lab deems fit.
The Client agrees that Co-lab may (at no cost) use for the purposes of marketing, publication in journals, exhibitions, awards or entry into any competition, any photograph, video, or record by any and all means, the Project during all stages of the commission.
Default and Consequences of Default
Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at Co-lab’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.
If the Client owes Co-lab any money, the Client shall indemnify Co-lab from and against all costs and disbursements incurred by Co-lab regarding legal costs on a solicitor and own client basis, internal administration fees, Co-lab’s contract fees owing for breach of these terms and conditions, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.
Further to any other rights or remedies Co-lab may have under this Agreement, if a Client has made payment to Co-lab, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by Co-lab under this clause 21 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Agreement.
Without prejudice to any other remedies Co-lab may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Co-lab may suspend or terminate the supply of Services to the Client. Co-lab will not be liable to the Client for any loss or damage the Client suffers because Co-lab has exercised its rights under this clause.
Without prejudice to Co-lab’s other remedies at law Co-lab shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Co-lab shall, whether or not due for payment, become immediately payable if:
any money payable to Co-lab becomes overdue, or in Co-lab’s opinion the Client will be unable to make a payment when it falls due;
the Client has exceeded any applicable credit limit provided by Co-lab;
the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.
Cancellation
Without prejudice to any other remedies Co-lab may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Co-lab may suspend or terminate the supply of Services to the Client. Co-lab will not be liable to the Client for any loss or damage the Client suffers because Co-lab has exercised its rights under this clause.
Co-lab may cancel any Agreement to which these terms and conditions apply or cancel delivery of Services at any time before the Services are delivered by giving twenty (20) business day’s written notice to the Client. On giving such notice Co-lab shall repay to the Client any sums paid in respect of the Fee for Services which have not yet been performed by Co-lab. Co-lab shall not be liable for any losses or damages (howsoever arising) from such cancellation.
In the event that the Client cancels delivery of the Services the Client shall be liable for any and all loss incurred (whether direct or indirect) by Co-lab as a direct result of the cancellation (including, but not limited to, any loss of profits).
Privacy Policy
All emails, documents, images or other recorded information held or used by Co-lab is Personal Information, as defined and referred to in clause 24, and therefore considered Confidential Information. Co-lab acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). Co-lab acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by Co-lab that may result in serious harm to the Client, Co-lab will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.
Notwithstanding clause 23.1, privacy limitations will extend to Co-lab in respect of Cookies where the Client utilises Co-lab’s website to make enquiries. Co-lab agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:
IP address, browser, email client type and other similar details;
tracking website usage and traffic; and
reports are available to Co-lab when Co-lab sends an email to the Client, so Co-lab may collect and review that information (“collectively Personal Information”)
If the Client consents to Co-lab’s use of Cookies on Co-lab’s website and later wishes to withdraw that consent, the Client may manage and control Co-lab’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.
The Client agrees for Co-lab to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g. name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by Co-lab.
The Client agrees that Co-lab may exchange information about the Client with those credit providers and with related body corporates for the following purposes:
to assess an application by the Client; and/or
to notify other credit providers of a default by the Client; and/or
to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or
to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.
The Client consents to Co-lab being given a consumer credit report to collect overdue payment on commercial credit.
The Client agrees that personal credit information provided may be used and retained by Co-lab for the following purposes (and for other agreed purposes or required by):
the provision of Services; and/or
analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or
processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or
enabling the collection of amounts outstanding in relation to the Services.
Co-lab may give information about the Client to a CRB for the following purposes:
to obtain a consumer credit report;
allow the CRB to create or maintain a credit information file about the Client including credit history.
The information given to the CRB may include:
Personal Information as outlined in 24 above;
name of the credit provider and that Co-lab is a current credit provider to the Client;
whether the credit provider is a licensee;
type of consumer credit;
details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);
advice of consumer credit defaults (provided Co-lab is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and Co-lab has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);
information that, in the opinion of Co-lab, the Client has committed a serious credit infringement;
advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).
The Client shall have the right to request (by e-mail) from Co-lab:
a copy of the Personal Information about the Client retained by Co-lab and the right to request that Co-lab correct any incorrect Personal Information; and
that Co-lab does not disclose any Personal Information about the Client for the purpose of direct marketing.
Co-lab will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Agreement or is required to be maintained and/or stored in accordance with the law.
The Client can make a privacy complaint by contacting Co-lab via e-mail. Co-lab will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.
Building and Construction Industry Security of Payment Act 2002
At Co-lab’s sole discretion, if there are any disputes or claims for unpaid Services then the provisions of the Building and Construction Industry Security of Payment Act 2002 may apply.
Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Security of Payment Act 2002 of Victoria, except to the extent permitted by the Act where applicable.
Architects Act 1991 and Architects Regulations 2015
Nothing in this Agreement is intended to have the effect of contracting out of any applicable provisions of the Architects Act 1991 or the Architects Regulations 2015, except to the extent permitted by those Acts where applicable.
Dispute Resolution
If a dispute arises between the parties to this Agreement, then either party shall send to the other party a notice of dispute in writing adequately identifying and providing details of the dispute. Within fourteen (14) days after service of a notice of dispute, the parties shall confer at least once, to attempt to resolve the dispute. At any such conference each party shall be represented by a person having authority to agree to a resolution of the dispute. In the event that the dispute cannot be so resolved either party may by further notice in writing delivered by hand or sent by certified mail to the other party refer such dispute to arbitration. Any arbitration shall be:
referred to a single arbitrator to be nominated by the President of the Institute of Arbitrators Australia; and
conducted in accordance with the Institute of Arbitrators Australia Rules for the Conduct of Commercial Arbitration.
Nothing in this Agreement shall require the either party to proceed with arbitration pursuant to clause 27.1 in the event the dispute is not resolved at mediation and either party, at their option, commence proceedings.
Indemnity
Except as is specified in clause 19 the liability limitations of Co-lab, it partners, associates, and employees shall be limited to the amount of the cover provided under the Architect’s Professional Indemnity Insurance Policy
The Client agrees to indemnify Co-lab, its partners, associates, employees and any other person who may be sought to be made liable in excess of the limit of liability described in clause 28.1 in respect of any activity arising from or connected with these terms in respect of any claim of whatever kind that may be made by any person and any costs and expenses that may be incurred by Co-lab because of such a claim.
Co-lab shall be deemed to have been discharged from all liability in respect of the Services, whether under the law of contract or tort, on the expiration of, unless otherwise agreed, one year from the date of either practical completion or the termination of the Services, whichever is the earlier date.
Trusts
If the Client at any time upon or subsequent to entering into the Agreement is acting in the capacity of trustee of any trust (“Trust”) then whether or not Co-lab may have notice of the Trust, the Client covenants with Co-lab as follows:
the Agreement extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;
the Client has full and complete power and authority under the Trust to enter into the Agreement and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;
the Client will not without consent in writing of Co-lab (Co-lab will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:
the removal, replacement or retirement of the Client as trustee of the Trust;
any alteration to or variation of the terms of the Trust;
any advancement or distribution of capital of the Trust; or
any resettlement of the trust property.
General
Each party will perform such further acts and execute and deliver all such further documents or instruments as are or become necessary to give effect to the terms of this Agreement.
Both parties warrant that they have the power to enter into this Agreement and have obtained all necessary authorisations to allow them to do so, they are not insolvent, and that this Agreement creates binding and valid legal obligations on them.
The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced, or impaired.
The rights, powers or remedies provided in this Agreement are cumulative and not exclusive of the rights, powers, remedies provided by law independently of this Agreement.
If any provision of this Agreement is invalid, illegal, unlawful, or otherwise incapable of being enforced, all other provisions of this Agreement shall nevertheless remain in full force and effect and be valid and fully enforceable and no other provision of this Agreement shall be construed to be dependent upon any provision unless so expressed in this Agreement.
These terms and conditions and any contract to which they apply shall be governed by the laws of Victoria in which Co-lab has its principal place of business and are subject to the jurisdiction of the courts in Victoria.
Co-lab may licence and/or assign all or any part of its rights and/or obligations under this Agreement without the Client’s consent.
The Client cannot licence or assign without the written approval of Co-lab.
Co-lab may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Agreement by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of Co-lab’s sub-contractors without the authority of Co-lab.
The Client agrees that Co-lab may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for Co-lab to provide Services to the Client.
Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules, or measures being enforced by Governments, including, but not limited to, any Government imposed border lockdowns, etc, (“Force Majeure”) or other event beyond the reasonable control of either party.
This Agreement constitutes the entire Agreement between the parties with respect of the subject matter and contains all the representations, undertakings, warranties, covenants, and agreements of the parties. This Agreement supersedes all prior negotiations, contracts, arrangements, understandings, and agreements with respect to such subject matter. There are no representations, undertakings, warranties, covenants, or agreements between the parties express or implied except as contained in this Agreement.
