1800 957 153 [email protected]

This document sets out particulars of the work we are to perform for you, how we will charge for our services and otherwise outline the terms and conditions of our engagement.

 

  1. Introduction
    1. Agreement provisions – The agreement incorporates the general terms and conditions in this document and the details on your Invoice.
    2. Interpretation – A reference to Plans and Specifications means the plans and specifications provided by you for the purpose of us providing an estimate of the materials required for construction of improvements contained in those plans and specifications. The estimate of materials is referred to in this agreement as the Bill of Quantities. An estimate of building costs using average prices for typical buildings can also be performed and is referred to in this agreement as an Elemental Estimate.
    3. Precedence – If there is any inconsistency between the provisions of this agreement a descending order of precedence will be accorded to:
      a) the general terms and conditions in this document;
      b) the details on the Invoice;
      c) specific instructions from the Client;
      d) the contents of the Plans and Specifications,
      so that the provision in the higher ranked document, to the extent of the inconsistency, will prevail.
  2.  Client
    1. Client – The client, who will give us instructions and who will be responsible for payment of our fees is the recipient of the Invoice.
  3. The Work
    1. Work to be performed – Pursuant to the Plans and Specifications and instructions provided by you, we will perform the type of work identified on the Invoice.
    2. Scope of Work – The nature and scope of the work is the provision of  a Bill of Quantities or an Elemental Estimate for a dwelling house and other improvements (if applicable) described by the Plans and Specifications provided by you and any other instructions provided by you.
    3. Acknowledgement – You warrant the Plans and Specifications are correct, full and complete and contain all information and details upon which you require a Bill of Quantities or Elemental Estimate. We take no responsibility for any loss arising if the Plans and Specifications are incomplete or contain errors. You take full responsibility for, and shall pay and indemnify us in respect of all losses that arise (and incurred by either party to this agreement) if the Plans and Specifications are incomplete or contain errors.
  4. Persons who will Perform the Work
    1. Our company representatives – The person you should contact regarding the work will be made known to you at the commencement of the work.
    2. Sub-Contractors
      1. You acknowledge we may engage suitably qualified and experienced sub-contractors to assist in the performance of the work. You will provide your instructions to us, and must not (without our prior approval) communicate directly with our sub-contractors unless that occurs through emails directed to us or through our web portal.
      2. We warrant that each sub-contractor will perform the work at all times in a proper, professional and diligent, manner and in accordance with any applicable laws and regulations of any governmental and other authorities having jurisdiction.
      3. Further, we warrant that each sub-contractor has and shall have the necessary qualifications, training and expertise necessary for him or her to perform his or her assigned duties.
  5.  Fees
    1. Basis of Fees Charged – Our fees will be calculated on the basis or at the rate identified on our website, unless another fee has been agreed upon (Clause 5.2) Our rate includes any costs incurred by us to engage sub-contractors and for time spent carrying out secretarial and support services.
    2. Fee estimates – We may at our discretion offer an upfront estimate of the fee we will charge you. You acknowledge that the fee estimate provided to you has been prepared on the basis of any initial Plans and Specifications, information and documents supplied by you. We reserve the right to increase our fees if you request work outside the scope of our instructions or you provide any variations to Plans and Specifications, information and documents supplied by you.
  6.  Invoices
    1. All invoices submitted by us to you will be valid tax invoices in a form which complies with GST legislation.
    2. An Invoice for the deposit is to be paid prior to commencement of Bill of Quantities work.
    3. An Invoice for the final amount is to be paid prior to receipt of the Bill of Quantities or Elemental Estimate .
    4. We may at our discretion extend the due date of Clause 6.2 and/or Clause 6.3. If we do, you acknowledge that we may, in addition to and without prejudice to any other rights contained in this agreement or otherwise at law,
      a) cease performing any work if an invoice remains unpaid after the due date for payment; and
      b) charge interest on all monies outstanding at an annual rate equal to the Cash Rate Target set by the Reserve Bank of Australia plus 7.5% and that interest shall be calculated daily from the date on which monies outstanding were due to the date on which payment by you is made (both inclusive) including the relevant Interest.
  7. Goods and Services Tax
    1. All fees referred to in this agreement, unless otherwise indicated, are exclusive of GST and represent the GST exclusive supply price. If GST is payable in relation to any goods or services we supply, an amount of 10% will be added to the GST exclusive supply price.  The GST amount is payable by you at the time our tax invoice (as that term is defined in the GST legislation) (Tax Invoice) is given to you.
  8. Amendment of this Agreement
    1. Any amendments to this agreement must be made in writing.
    2. Without diminishing the scope of Clause 8.1, you acknowledge any amendment to the Plans and Specifications, once the original documents have been supplied, must be submitted to us in writing and we may (acting reasonably) notify you of an adjustment to our fees if the amendment causes additional work for us.
    3. If we notify you of a variation you can accept the variation by:
      a) notifying us in writing; or
      b) continuing to instruct us.
  9. Termination of this Agreement
    1. We may terminate this agreement and cease performing work for you if you:
      a) breach the agreement and such breach remains unresolved for 7 days following our notification to you of the breach;
      b) require us to act unlawfully or unethically;
      c) fail to pay any invoices in accordance with Clause 6; or
      d) if you are insolvent or placed in external administration.
    2. We will give to you at least 7 days’ notice of our intention to terminate the agreement.
    3. If this agreement is terminated by us we are entitled to all valid outstanding fees up to the termination and will be entitled to retain possession of any Plans and Specifications, documents and files (in any form) until payment of those valid fees. If the work is partly performed at the time this agreement is terminated, we will determine, acting reasonably, what percentage of the total fees shall apply.
    4. If this agreement is terminated by us and provided you have paid all valid outstanding fees up to the termination, we shall do all things to assist with the smooth transition of the work to you or a new service provider and will provide to you all Plans and Specifications, documents and files (in any form) in our possession.
  10. Duties
    1. Our duties are:
      a) to ensure we and our agents, sub-contractors and employees will perform the work at all times in a proper, efficient, timely and diligent manner and in accordance with any applicable laws and regulations of any governmental and other authorities having jurisdiction.
      b) to keep you informed of the progress of the work being performed;
    2. Your duties are:
      a) to ensure the Plans and Specifications are full and complete and contain all information and details upon which you require a cost estimate.
      b) to make reasonable efforts to be available to give us instructions in relation to the work to be carried out, including replying promptly to any emails we send requesting further information from you;
      c) to keep us advised at all times of contact details. We will not be responsible for your losses if we cannot contact you or if you do not give us instructions when we need them.
  11. Limitation of Liability
    1. Subject to Clauses 2 and 11.3, our liability for any loss or damage suffered by you in connection with this agreement (other than by the negligence or wilful misconduct of us) is limited, at our election to:
      a) the fees paid by you to us under this agreement prior to you first suffering loss or damage in connection with this agreement; or
      b) re-performance of the work performed.
    2. Subject to Clause 3, we are not liable for any Consequential Loss however caused, suffered or incurred by you in connection with this agreement.
    3. Other than where the loss or damage suffered by you was caused by our negligence or wilful misconduct, if the Competition and Consumer Act 2010 (Cth) or any other legislation implies a condition or warranty into this agreement in respect of services supplied, and our liability for breach of that condition or warranty may not be excluded but may be limited, Clauses 1 and 11.2 do not apply to that liability and instead our liability for such breach is limited to us supplying the services again, paying the cost of having the services supplied again, or otherwise compensating you in an amount, or in a way, that is the minimum required by law.
    4. For the purposes of this Clause, 11.2 Consequential Loss means consequential loss and:
      a) indirect loss;
      b) loss of revenues;
      c) loss of reputation;
      d) loss of profits;
      e) loss of actual or anticipated savings;
      f) lost opportunities, including opportunities to enter into arrangements with third parties; and
      g) loss or corruption of data.
  12. Intellectual Property
    1. Ownership of material
      a) Provided you have complied with your obligations to pay our fees we grant to you a non-exclusive, irrevocable, global licence to use any material (including, but not limited to documents, reports, technical information, studies, plans, charts, drawings, calculations, tables, schedules and data stored by any means) produced by us in the performance of the work.
      b) For clarity, the material described in Clause 1.1(a) remains our property and nothing in this agreement grants to you any interest in that material apart from the licence granted in Clause 1.1(a).
    2. Return of your property – Provided you have complied with your obligations to pay our fees, we shall return all property in our possession, belonging to you, at the conclusion of our services or upon your earlier request.
  13. Governing law and jurisdiction
    1. The laws of Queensland govern this agreement.
    2. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Queensland and courts competent to hear appeals from those courts.
  14. Force Majeure
    1. We will not be:
      a) in breach of this agreement as a result of; or
      b) liable for,
      any failure or delay in the performance of our obligations under this agreement to the extent that such failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of you.
    2. For the purpose of this clause, a Force Majeure Event means any occurrence or omission outside our control that hinders or delays the performance of the work by us or our sub-contractors and includes:
      a) a physical natural disaster including fire, flood, lightning or earthquake;
      b) war or other state of armed hostilities (whether war is declared or not), insurrection, riot, civil commotion, act of public enemies, national emergency (whether in fact or in law) or declaration of martial law;
      c) strike, lock-out, stoppage, labour dispute or shortage including industrial disputes that are specific to us or our subcontractors;
      d) confiscation, nationalisation, requisition, expropriation, prohibition, embargo, restraint or damage to property by or under the order of any government agency; and law taking effect after the date of this agreement.
  15. Confidentiality
    1. Obligations of confidence – Both parties agree to keep confidential, and not to use or disclose, other than as permitted by this agreement, any Confidential Information of the other party provided to or obtained by that party prior to or after entry into this agreement.
    2. Exclusions – The obligations of confidence in Clause 15.1 do not apply to Confidential Information:
      a) that is required to be disclosed by applicable law, or under compulsion of law by a court or Government Agency or by the rules of any relevant stock exchange or regulator, as long as the disclosing party: (i) discloses the minimum amount of Confidential Information required to satisfy the law or rules; and (ii) before disclosing any information, gives all available notice to the other party and takes all reasonable steps (whether required by the other party or not) to maintain such Confidential Information in confidence;
      b) that is in the public domain otherwise than as a result of a breach of this agreement or other obligation of confidence; or
      c) that is already known by, or rightfully received, or independently developed, by the recipient of that Confidential Information free of any obligation of confidence.
    3. Restriction on disclosure
      a) Each party may use and disclose Confidential Information of the other party only: (i) with the prior written consent of the other party; or (ii) to that party’s directors, agents, professional advisors, employees, contractors and permitted sub-contractors solely for the exercise of rights or the performance of obligations under this agreement.
      b) If either party discloses Confidential Information under Clause 15.3(a), that party must ensure that such information is kept confidential by the person to whom it is disclosed and is only used for the purposes of performing the work or complying with an obligation under this agreement.
    4. Meaning of Confidential Information – For the purpose of this clause, Confidential Information of a party means the terms of this agreement and any information:
      a) relating to the business and affairs of that party;
      b) relating to the customers, clients, employees, sub contractors or other persons doing business with that party;
      c) which is by its nature confidential;
      d) which is designated as confidential by that party; or
      e) which the other party knows or ought to know, is confidential, and includes all trade secrets, knowhow, financial information and other commercially valuable information of that party.
  16. Dispute Resolution
    1. This Clause 16 applies to any dispute which arises between us and you in connection with this agreement.
    2. Dispute notice
      a) If either party considers that a Dispute has arisen, it may issue a notice to the other party, setting out reasonable particulars of the matters in dispute.
      b) Subject to Clause 16.6, the parties must not commence or maintain any action or proceeding in any court, tribunal or otherwise regarding a dispute without first giving a dispute notice and complying with the provisions of this Clause.
    3. First level discussions – The parties must promptly hold discussions between representatives of each party after the issue of a dispute notice to attempt to resolve the dispute.
    4. Second level discussions
      a) If the dispute has not been resolved within five business days after the commencement of first level discussions, the parties must attempt to resolve the dispute by holding discussions between a senior executive of your company and our sole director.
      b) If the dispute has not been resolved within ten business days after commencement of second level discussions, the parties shall mediate the dispute in accordance with Clause 16.5.
    5.  Mediation
      a) The parties must mediate the issue identified in the dispute notice in accordance with the mediation rules of the Institute of Arbitrators and Mediators Australia Mediation and Conciliation Rules except where inconsistent with this agreement.
      b) The mediator must be agreed on by the parties within 5 business days after conclusion of the second level discussions or, failing agreement within that time, nominated by the Chair of the Queensland Chapter of the Institute of Arbitrators and Mediators in Australia at the request of either party.
      c) The role of any mediator is to assist in negotiating a resolution of the issue identified in the dispute notice. A party is only bound by a mediation outcome if that party so agrees in writing.
      d) The mediation concludes when: (i) the parties agree in writing on a resolution of the issue identified in the dispute notice; or (ii) a party, not earlier than 20 business days after appointment of the mediator, has given 5 business days notice to the other party and to the mediator, terminating the mediation, and that 5 business days has expired without all the parties agreeing in writing on a resolution of the issue identified in the dispute notice.
      e) If the mediation concludes in accordance with Clause 16.5(d) (ii), either party may pursue its rights and remedies under this agreement as it sees fit.
    6. Court proceedings – Notwithstanding anything in this Clause 16, a party may at any time commence court proceedings in relation to a dispute or claim arising in connection with this agreement where that party seeks urgent interlocutory relief.
  17.  General
    1. Acceptance of our terms and conditions – By paying the Invoice or continuing to instruct us after you have been provided with a copy of this agreement, you are taken to have read and accepted the terms and conditions of this agreement.
    2. Assignment and novation – Neither party to this agreement may assign, in whole or in part, or novate its rights and obligations under this agreement without the prior consent of the other party, which consent must not be unreasonably withheld.
    3. Counterparts – This agreement may be executed in any number of counterparts and all counterparts together make one instrument.
    4. Entire agreement – This agreement represents the parties’ entire agreement, and supersedes all prior representations, communications, agreements, statements and understandings, whether oral or in writing, relating to its subject matter.
    5. Further assurances – Each party must do all things and execute all further documents necessary to give full effect to this agreement and refrain from doing anything that might hinder the performance of this agreement.
    6. Waiver
      a) The failure of a party at any time to require full or partial performance of any provision of this agreement does not affect in any way the right of that party to require that performance subsequently.
      b) A single or partial exercise of or waiver of the exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy.
      c) A right under this agreement may only be waived in writing signed by the party granting the waiver, and is effective only to the extent specifically set out in the waiver.
    7. Negation of agency – Unless expressly stated otherwise, this agreement does not create a relationship of employment, trust, agency, joint venture or partnership between the parties.
    8. Severability – Each provision of this agreement will be read and construed as a separate and severable provision or part and if any provision is void or otherwise unenforceable for any reason then that provision will be severed and the remainder will be read and construed as if the severable provision had never existed.