Part 1 – The Project

Item 1. The Parties

This agreement is made between Buildpoint Australia Pty Ltd (Victorian Building Authority Registered Building Practitioner Number CDP-AD 56596, ABN 87 165 827 412), located at Ground Floor, 470 St Kilda Rd, Melbourne, Australia. Buildpoint can be contacted via phone at 1300 787 552 or email at info@buildpoint.com.au.

The job attribution details shall be as per your quotation and project brief, which you accept as our limited scope.

Item 2. Agreement Date

This agreement is dated as specified in the client-provided details.

Item 3. Project Address

If different from the mailing address, the project address is as specified by the client.

Item 4. Description of Works

The scope of work is based on your initial enquiry, telephone discussion, and brief provided as part of your quote.

Item 5. Client Details

The client is required to enter the following details at the end of this document/webpage:

• Name: [To be provided at the end of the page]
• ACN/ABN: [To be provided at the end of the page]
• Mailing Address: [To be provided at the end of the page]
• Phone Number: [To be provided at the end of the page]
• Email Address: [To be provided at the end of the page]

By submitting these details, the client acknowledges acceptance of the terms outlined in this agreement.

Part 2 – The Fee Schedule

All monetary amounts include GST unless specified otherwise.

Item 6. Basis of Payment

The Fee shall be invoiced as a Percentage, Lump Sum, Square Metre Rate or Hourly Rate. Lump Sum shall be the default unless otherwise specified in your quotation.

Item 7. Percentage Basis

Where the Percentage Basis applies, the Fee shall be based on the estimated total construction cost.

Item 8. Estimated Total Construction Cost

To be determined once the Buildpoint design acceptance form has been completed.

Item 9. Lump Sum Fee

The lump sum fee shall be as per your quote number [insert required field] provided.

Item 10. Hourly Time Charge Rates (Including GST)

• Principal $350 per hour, billed in 15 minute increments.
• Draftsperson $160 per hour, minimum 4 hours.
• Support Staff, technical / administrative / non-technical, $120 per hour, billed in 15 minute increments.

Item 11. Stage Payments

• 11.1 Full payment upfront for all jobs less than $5,000.
• 11.2 For all jobs over $5,000, a 50% deposit upon engagement and the 50% balance upon design acceptance and prior to release of the final working drawings and documentation.

Item 12. Disbursements

• 12.1 Car travel, airfares and living away from home allowance at cost plus a 30% handling fee (Excl. GST).
• 12.2 Obtain current title information including covenants and other instruments (must be less than 14 days old) $350 including GST.
• 12.3 Obtain sewerage / stormwater asset / any property information required, minimum $350 including GST per application or as per issued invoice.
• 12.4 Plan printing, colour or black and white, any sheet size, $15 including GST per sheet.

Part 3 – The Design Service

Preliminary Design Services may include

• Preparation of Brief.
• Production of Preliminary Layout Sketches.
• Preparation of Indicative Budget by others, extra service and fees apply.
• Preliminary Feasibility Study, extra service and fees apply.

Site Analysis Services may include

• Assistance in selection of site if included in your quote.
• Perform basic onsite measure if required.
• Sketch basic existing conditions plans (detailed version by licensed land surveyor).
• Consultation with your local authority.
• Engage licensed land surveyor on owner behalf to pick up existing feature survey and detailed existing conditions including site levels to AHD if required, at extra service fee.

Planning Design Development may include

• Preparation of Preliminary Concept Sketches suitable for subsequent detailed development.
• Budget considerations of anticipated Construction Cost, extra service and fees apply.
• Consultation with Relevant Authorities.
• Discussions with Neighbours and other Interested Parties, extra service and fees apply.
• Indicative rendering presentation / marketing drawings limited to total 3 views.
• Isometric Perspectives limited to total 3 views.

Planning Applications & Submissions may include

• Appointment of Consultants, where appropriate.
• Preparation of Presentation Drawings for Town Planning.
• Lodge relevant application forms.
• Complete statutory advertising requirements.
• Negotiation with planning application objectors.
• Assistance with planning appeals.

Design Development and Working Drawings may include

• Appointment of consultants, where appropriate.
• Preparation of advanced stage of design development.
• Review & refinement of advanced stage with clients.
• Preparation of working drawings including electrical layout.
• Preparation of detailed drawings, indicative internal elevations.

Tendering and Negotiation of Contracts - (PROJECT MANAGEMENT) Extra Service may include

• Completion of Tender Documents.
• Selection of Invited Tenderers.
• Call for Tenders.
• Analysis of Tenders including compliance and/or variations.
• Negotiation with Tenderers.
• Notification to Successful Tenderer and Unsuccessful Tenderers.
• Preparation of Contract Documents between Client and Builder.
• Preparation of Contract Documents between Client and Consultants.
• Liaison with Successful Builder and Client.
• Liaison with Consultants.
• Attendance at Contract Signing.

Site Attendance and Contract Administration (PROJECT MANAGEMENT) - Extra Service may include

• Consultation with Relevant Authorities.
• Liaise with Consultants.
• Lodge Permit Application Forms.
• Co-ordinate all Relevant Documentation.
• Assistance with Building Appeals/Modifications.
• Attendance at Site to Monitor Progress of the Project.
• Monitoring of the Project to Ensure Consistency with the Design requirements.
• Administration of the Contract between Client and Builder.

Post Project Completion Services (PROJECT MANAGEMENT) – Extra Service may include

• Completion of all aspects of Contract Administration.
• Review of any Defects for the purpose of the Defects Liability Period under the Builder's Contract.
• Review of any applicable Warranties and Guarantees.

Part 4 – Nominated Consultants - Extra Service may include

The Client may have already engaged, or authorises the Building Designer to engage, the Consultant services selected below under Clause 12 of Part 5.

• Building Surveyor.
• Geotechnical Engineer.
• Land Surveyor.
• Landscape Designer.
• Structural Engineer.
• Civil Engineer.
• Town Planner.
• Cost Consultant/Quantity Surveyor.
• Electrical Engineer.
• Fire Services Engineer.
• Interior Design.
• Interior Decorator.
• Mechanical Engineer.
• Energy Assessor (NatHERS / 7-Star).
• BAL Assessor.

Part 5 – Terms and Conditions of Engagement

1. The Agreement

This Agreement is made between the Building Designer named in Item 1 of Part 1 and the Client named in Item 5 of Part 1, on the date stated in Item 2 of Part 1.

2. Definitions

In this Agreement, except where the context or subject otherwise requires:

• Administrator means performing the roles selected under the heading "Site Attendance and Contract Administration" in Part 3;
• Agreement means this agreement between the Building Designer and the Client;
• Building Designer means the person, partnership or corporation stated in Item 1 of Part 1;
• Claim means any cause of action, allegation, claim, demand, debt, liability, suit or proceeding of any nature howsoever arising and whether present or future, fixed or unascertained, actual or contingent, or at law (including negligence), in equity, under statute or otherwise;
• Client means the person, partnership or corporation stated in Item 5 of Part 1;
• Client Information means all documents (including sketches, photographs, drawings, plans or concepts) supplied by the Client to the Building Designer upon which the Building Designer is to base the Design Services and/or Works;
• Copyright means all rights in respect of the Documents arising under the Copyright Act;
• Copyright Act means the Copyright Act 1968 (Cth), as amended;
• Corporations Act means the Corporations Act 2001 (Cth), as amended;
• Design Services means the services to be supplied by the Building Designer to the Client as selected in Part 3;
• Documents means any works (as defined in the Copyright Act) created by the Building Designer in the course of providing Design Services including (without limitation) all plans, drawings, drafts, revisions and other documentation relating to the Works;
• Estimated Total Construction Cost means the Client’s estimate of the Total Construction Cost as referred to in Item 8 of Part 2;
• Fee means the amount payable by the Client to the Building Designer set out in clause 9 and Items 6 to 11 of Part 2, as payable and adjusted (if at all) in accordance with this Agreement, plus any disbursements payable under clause 10;
• Governmental Agency means:
  • a. a body corporate or an unincorporated body established or constituted for a public purpose by Commonwealth or State legislation, or an instrument made under that legislation;
  • b. a body established by a Minister of the State of Victoria, including departments; or
  • c. an incorporated company over which the Victorian Government exercises control;
• Insolvency Event means any of these events in relation to a party (Defaulting Party):
  • a. where the Defaulting Party is a body corporate:
    • 1. the Defaulting Party becomes an externally administered body corporate under the Corporations Act;
    • 2. steps are taken by any person towards making the Defaulting Party an externally administered body corporate (but not where the steps taken consist of making an application to a court and the application is withdrawn or dismissed within 14 days);
    • 3. a controller (as defined in section 9 of the Corporations Act) is appointed to any of the property of the Defaulting Party, or any steps are taken for the appointment of a controller (but not where the steps taken are reversed or abandoned within 14 days);
    • 4. the Defaulting Party is taken to have failed to comply with a statutory demand within the meaning of section 459F of the Corporations Act; or
    • 5. a resolution is passed for the reduction of capital of the Defaulting Party or notice of intention to propose such a resolution is given, without the prior written consent of the other party to this Agreement;
  • b. where the Defaulting Party is a natural person:
    • 1. the Defaulting Party authorises a registered trustee or solicitor to call a meeting of his or her creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of his or her creditors;
    • 2. a person holding a security interest in assets of the Defaulting Party enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets;
    • 3. the Defaulting Party commits an act of bankruptcy;
• Intellectual Property Rights means any statutory and other proprietary right in respect of inventions, innovations, patents, utility models, designs, circuit layouts, mask rights, copyright (including future copyright), confidential information, trade secrets, know-how, trademarks and any other right in respect of intellectual property;
• Legislation means:
  • a. acts, ordinances, regulations, by-laws, orders, awards and proclamations of the State of Victoria and the Commonwealth of Australia;
  • b. authorisations by authorities which have the force of law; and
  • c. standards, codes and guidelines which have the force of law;
• Nominated Consultants means the consultants nominated by the Client as listed in Part 4;
• VBA Building Practitioner Number means the registration number granted to the Building Designer by the Victorian Building Authority under the Building Act 1993 (Vic), being CDP-AD 56596;
• Total Construction Cost may include all of the following:
  • a. the final adjusted contract price payable to the building contractor under the building contract for the Works;
  • b. the final adjusted contract price payable to other contractors and/or consultants engaged to supply and complete the Works;
  • c. the final adjusted contract price payable to other contractors for any other associated site-works which the Building Designer was required to take into account in performing the Design Services; and
  • d. all fittings, fixtures and equipment relating to the Works;
• Unexpected Event affecting a party means anything outside that party’s reasonable control that the affected party is not able to either prevent or remove at reasonable cost, including strikes not involving its employees, fires, internet viruses or attacks, electrical outages, storms, floods, earthquakes, wars, riots, acts of terrorism or a pandemic declared by a Governmental Agency;
• Works means the specific project or undertaking to be performed at the address stated in Item 3 of Part 1 in respect of which the Building Designer is engaged to supply the Design Services; and
• Wrongful Conduct means any act or omission of a party which is:
  • a. negligent, deceitful or otherwise tortious;
  • b. misleading or deceptive or likely to mislead or deceive;
  • c. unconscionable;
  • d. in breach of its obligations or warranties under this Agreement or contrary to any representation made in this Agreement; or
  • e. in breach of any applicable law regulating the rights, liabilities and remedies of persons.

3. Nature of Agreement

3(a) The Building Designer's engagement under this Agreement shall commence on the date stated in Item 2 of Part 1, and shall conclude on the earlier of:

• the date the Design Services are completed;
• the date the Building Designer's final tax invoice is paid;
• the date the Works are complete; or
• the date of termination under clause 13(b) or clause 20.

3(b) The Building Designer shall perform the Design Services for the Client in accordance with this Agreement.

3(c) The Client shall pay the Fee to the Building Designer in accordance with this Agreement.

4. Design Services

4(a) The Building Designer shall supply the Design Services using the reasonable skill and care of an ordinary building designer in the circumstances of the Building Designer at the time the Design Services are supplied.

4(b) The Client shall ensure that all requests, decisions and instructions required by the Building Designer from the Client are supplied accurately and within a reasonable time, not exceeding 5 business days, so as not to cause delay to the Design Services provided under this Agreement.

4(c) A maximum of 3 drafts will be issued during the initial drawings concept stage. Any further drafts, changes or amendments required for any reason shall cost $1,500.00 plus GST per draft. A draft is defined as any drawing document emailed or issued by our office for client or other body examination and review. A revision is when changes are requested to an issued draft.

4(d) The Building Designer does not make statutory decisions on behalf of local councils, Municipal Building Surveyors (MBS), Relevant or Private Building Surveyors (RBS), or the Victorian Building Authority (VBA), and does not control approval timelines. The Building Designer cannot guarantee a successful town planning outcome, building permit outcome, statutory dispensation or approval timeframe. The Building Designer shall be indemnified against any third party delays, costs, fees or damages arising from authority processes.

5. Building Notices, Building Orders and Statutory Enforcement

Where the Building Designer is engaged to represent, consult, prepare documentation for, or manage responses on behalf of the Client regarding any Building Notice, Building Order, Emergency Order, Show Cause Notice or Stop Work Order issued under the Building Act 1993 (Vic) or associated regulations, the following applies:

5(a) No guarantee of outcome. The Building Designer makes no representation, warranty or guarantee that its representations, technical submissions or design solutions will result in the cancellation, revocation, variation or favourable resolution of the notice or order.

5(b) Statutory discretion. Statutory authority and final determination rest solely with the issuing Municipal Building Surveyor (MBS), Relevant Building Surveyor (RBS), Council, or the Building Appeals Board (BAB).

5(c) Owner liability. The Client remains solely responsible and liable for all compliance costs, consultant fees, council levies, statutory fines, rectification or demolition works, and any subsequent enforcement action ordered by an authority.

5(d) Indemnity. The Client indemnifies and holds harmless the Building Designer against any claims, losses, legal costs, liabilities or damages arising from the outcome or execution of any Building Notice or Building Order process.

6. Appointment as Project Manager / Administrator

6(a) Where the Design Services include the Building Designer acting in the role of project manager or Administrator, the Building Designer shall act as the agent of the Client at all times and not as an independent certifier or assessor.

6(b) The project management service is the Building Designer acting on behalf of the owner and includes the following:

• Assisting in the selection of a registered Domestic Builder and monitoring building works progress.
• Holding the builder accountable for quality and achieving project milestones.
• Acting as the Client’s agent with the Relevant Building Surveyor (RBS) and local governing authorities.

7. Authority to Act as Agent

The Client expressly authorises the Building Designer to act on behalf of the Client for the purpose of making any application, appeal or referral under the Building Act 1993 (Vic), the Planning and Environment Act 1987 (Vic), the regulations under those Acts, and any other Legislation that affects the approval process, the scope of the Design Services, or the project management services.

8. The Works

8(a) The Client shall ensure that, prior to commencement of any on-site building work to which the Design Services relate, a building permit in relation to the Works has been issued and is in force under the Building Act 1993 (Vic).

8(b) The Building Designer does not warrant or represent to the Client that the design produced under this Agreement can be constructed for the Estimated Total Construction Cost. The Client will obtain its own independent advice as to the estimated and actual costs of constructing the design.

9. Payment of Fees

9(a) The Client shall pay to the Building Designer the Fee on the basis specified in Item 6 of Part 2, which will be one of the following.

9(b) Percentage Basis. Where the Fee payable is based on a percentage of the Estimated Total Construction Cost, the Fee shall be calculated in accordance with Item 7 of Part 2. Where the Total Construction Cost is higher than the Estimated Total Construction Cost, the Fee shall be increased so that it is calculated as a percentage of the Total Construction Cost. Where the Total Construction Cost is lower than the Estimated Total Construction Cost, the Fee shall continue to be calculated as a percentage of the Estimated Total Construction Cost.

9(c) Square Metre Rate. Where the Fee is calculated on a square metre rate, it is based on the total gross floor area created or altered, including all structures whether attached or unattached, such as outbuildings, sheds, verandas, pergolas, alfrescos, carports and garages. The Fee is computed as the total sum of the new gross floor area, encompassing both the existing and proposed building floor areas, internally and externally.

9(d) Lump Sum Basis. Where the Fee payable is based on a lump sum, the Fee shall be the lump sum amount stated in Item 9 of Part 2.

9(e) Project Management Fixed Term Fee. The agreed fee is the agreed quote amount, divided into equal monthly instalments unless quoted otherwise.

• Pro-rata and non-refundable start. The first month’s payment is calculated on a pro-rata basis from the date of commencement and is payable in advance. All fee payments made are strictly non-refundable, subject to clause 22.
• Ongoing period. Following the initial agreed fixed term, the agreement transitions to a month-to-month basis at the same monthly rate, unless the project manager advises otherwise, until the project is concluded or terminated.
• Invoice cycle. Invoices will be issued on the 5th day of every month.
• Payment terms. All project management invoices must be paid in full within 72 hours of the issue date.
• Fee exclusions. All third party costs are excluded from the project manager’s fee. The Client is solely responsible for consultant fees (engineers, land surveyors, third party building inspections and similar), all governing body fees, all council levies, all permit application costs, and building permit levies.

9(f) Hourly Time Charge Basis. Where the Fee is payable on an hourly time charge basis, the rates payable by the Client to the Building Designer shall be as stated in Item 10 of Part 2. The Building Designer shall keep accurate time records to substantiate the Fee claimed on an hourly time charge basis.

9(g) If the Fee is to be paid in stages, the Fee will be paid at the stages and in the proportions or amounts specified in Item 11 of Part 2.

9(h) If the Fee is not to be paid in stages, the Client must pay the Fee progressively. The Building Designer will submit an account to the Client on the 1st of each month for payment of a proportion of the Fee referable to the value of the Design Services supplied during the preceding calendar month, plus all disbursements incurred during that month. Payment of the account is due on the 15th day of the month.

9(i) If the Client does not pay the Fee in accordance with this Agreement, the Building Designer, after providing the Client with a Notice of Client Default, and in addition to any other remedy available against the Client, may by notice to the Client suspend supplying any further Design Services pending payment, or may terminate this Agreement in accordance with clause 20.

9(j) The Client indemnifies the Building Designer in respect of all costs, losses and damage incurred in respect of non-payment of the Fee, including legal costs on an indemnity basis, debt recovery agency costs and court expenses incurred in recovering the Fee.

10. Disbursements

10(a) The Client shall reimburse the Building Designer for disbursements reasonably incurred, as stated in Item 12 of Part 2, for the purposes of supplying the Design Services in accordance with this Agreement.

10(b) Where a disbursement costs more than the allocated amount, the balance must be paid in full plus a 30% service fee (Excl. GST).

11. Changes in Legislation

If a change in Legislation necessitates a change to the Design Services, the difference shall be added to or deducted from the Building Designer's Fee in accordance with clause 18.

12. Nominated Consultants

12(a) Where the Client has not engaged the Nominated Consultants directly, the Building Designer shall act as the agent of the Client to engage the Nominated Consultants. All Nominated Consultants will be engaged by the Client pursuant to written contracts between the Client and the Nominated Consultants. The terms on which the Nominated Consultants are engaged shall not be inconsistent with the terms of the Building Designer's engagement under this Agreement.

12(b) The Client shall be responsible for all payments to Nominated Consultants.

12(c) If the Building Designer pays the Nominated Consultant or an authority on behalf of the Client, the Client shall reimburse the Building Designer for the payment, plus a service fee calculated at 30% (Excl. GST) of the paid amount, as a disbursement under clause 10.

12(d) Any consultant fee less than $1,800 (Excl. GST) shall attract a minimum $500 (Excl. GST) Buildpoint service fee per consultant.

12(e) If a consultant has not been engaged by our office, the Building Designer shall not liaise with that consultant unless otherwise agreed in writing.

12(f) The Building Designer does not warrant or make any representation to the Client that any Nominated Consultant is appropriate or suitable for the Works, that the scope of the services to be provided by a Nominated Consultant is appropriate or suitable, or as to the accuracy or quality of a Nominated Consultant's services.

12(g) The Building Designer shall have no liability to the Client in contract, tort, under statute or otherwise arising out of or in connection with the engagement of a Nominated Consultant or any services supplied by a Nominated Consultant. The Client shall not make any demand on the Building Designer or commence any legal proceedings against the Building Designer arising out of or in connection with any services supplied by a Nominated Consultant.

13. Engagement of Consultants

If the parties have not nominated or provided for the engagement of Nominated Consultants in Part 4, and during the performance of this Agreement the Building Designer is of the opinion that a consultant or consultants should be engaged, the following applies:

13(a) Where the Client provides written consent to the consultant being engaged, the consultant shall be engaged on the same basis as set out in clause 12, and clause 12 shall apply to the engagement.

13(b) Where the Client does not agree to a consultant being engaged, either the Client or the Building Designer may terminate this Agreement by notice in writing to the other party.

13(c) Where this Agreement is terminated under clause 13(b), the Client shall pay to the Building Designer the sums due to date in accordance with this Agreement, together with an amount for loss of an expectation of profit in contemplation of completing the Design Services.

14. Moral Rights, Copyright and the Client's Licence to Use the Documents

14(a) The Client must not infringe any Intellectual Property Rights when supplying Client Information.

14(b) The Building Designer must not infringe any Intellectual Property Rights when supplying the Design Services under this Agreement.

14(c) Each party shall take all necessary action to ensure that it does not cause the other party to infringe any other person’s rights, including Moral Rights, under the Copyright Act.

14(d) Copyright in the Documents prepared by the Building Designer under this Agreement is owned by the Building Designer, and reproduction in whole or in part of the Documents without the permission of the Building Designer will constitute an infringement of copyright under the Copyright Act.

14(e) The Client is granted an irrevocable licence to use the Documents prepared by the Building Designer solely to produce the Works for which they are intended, at the site to which the design relates, provided that:

• the Client has paid all amounts due and payable to the Building Designer in accordance with this Agreement, regardless of termination of this Agreement by either party for any reason; and
• the Building Designer has completed the Design Services commissioned by this Agreement.

14(f) Subject to further written permission from the Building Designer, the Building Designer does not grant the Client a licence to use the Documents other than in accordance with clause 14(e). No licence is granted to allow a third party who is a subsequent owner or developer of the site to use the Documents.

14(g) The Building Designer may consent to allow a third party who is a subsequent owner or developer of the site to use the Documents, which may include payment of an additional sum to cover the costs, losses and expenses of the Building Designer, as determined by the Building Designer.

14(h) The Client shall ensure that clause 14(e) is included in any contract of sale of the site to which the Documents relate.

14(i) For the avoidance of doubt, the parties agree that the Client shall not reproduce the Documents or reproduce the design on another site without the written consent of the Building Designer, which may include payment of an additional sum as determined by the Building Designer, and the Client shall not make, or allow to be made, any modification to the design of the Works as embodied by the Documents without the written consent of the Building Designer.

14(j) The Documents prepared by the Building Designer remain the property of the Building Designer, and the Building Designer shall retain the Documents. The Client is entitled to one copy of the final set of drawings forming part of the Documents as a record of the Works, provided either as a hard copy or as an electronic PDF copy. The Client is not entitled to any electronic CAD file copy of any of the Documents, including native drawing files such as Revit (.rvt) or AutoCAD (.dwg). Native electronic drawing files remain the proprietary intellectual property of the Building Designer and will not be released unless governed by a separate written intellectual property transfer agreement and fee.

14(k) In accordance with Part IX of the Copyright Act, the Building Designer shall be given full attribution for the design of the Works as embodied by the Documents, and all promotional material, advertising and media releases prepared by the Client or the builder of the project shall identify the Building Designer.

14(l) The Building Designer has a right of integrity of authorship in the Documents. All promotional material, advertising and media releases prepared by the Client, the builder, or any other third party relating to the Works shall not subject the Building Designer’s work to derogatory treatment under the Copyright Act.

15. Unauthorised Use of the Building Designer’s VBA Building Practitioner Number

15(a) The Client shall not use the Building Designer’s VBA Building Practitioner Number for any reason whatsoever without the express written consent of the Building Designer, describing the exact purpose for which the number is to be used.

15(b) The Client shall not be entitled to use any Document to which the Building Designer’s VBA Building Practitioner Number has been affixed, including any amended drawing or statutory application, without obtaining the express written consent of the Building Designer.

16. Indemnities and Limitations of Liability

16(a) Where the Client supplies Client Information to the Building Designer, the Client shall indemnify and keep indemnified the Building Designer and its officers, employees and agents (those indemnified) at all times against all actions, proceedings, claims, demands and liabilities, express or implied, which may be taken against those indemnified, and for all costs, losses, losses of profit, damages and expenses incurred or which become payable by those indemnified, that result or arise from any claim for infringement of any patent, registered design, trademark, copyright, Moral Rights, or any other property interest of a third party which may result from the use by those indemnified of the materials provided by the Client on which the Design Services and/or Works are based.

16(b) The Client indemnifies those indemnified from and against any loss or liability incurred by those indemnified, loss of or damage to property of those indemnified, or loss or expense incurred by those indemnified in dealing with any Claim against it, including legal costs and expenses on a party/party basis and the cost of time spent, resources used or disbursements paid by those indemnified, arising from any Wrongful Conduct by the Client in connection with this Agreement.

16(c) The Client’s liability to indemnify those indemnified under clauses 16(a) and 16(b) will be reduced proportionately to the extent that any Wrongful Conduct of those indemnified caused or contributed to the relevant liability, loss, damage or expense.

16(d) The indemnities contained in this clause 16 are subject to and are not intended to limit the operation of, or contract out of, any law with respect to proportionate liability; do not extend to that part of any loss or damage that arises from a separate causative event; and do not require the Client to indemnify those indemnified in an amount that would exceed any limitation of liability contained in this Agreement.

16(e) The right of a party to be indemnified under this clause is in addition to, and not exclusive of, any other right, power or remedy provided by law, and does not entitle the party to be compensated in excess of the amount of the relevant liability, loss, damage or expense.

16(f) The Client agrees that the Building Designer will be taken to be acting as agent or trustee for and on behalf of those indemnified.

16(g) The Building Designer shall have no liability to the Client for any indirect or consequential loss, including loss of actual or anticipated profit or revenue, business interruption, delay costs, financing costs, holding costs and loss of opportunity, even if the loss or damage was reasonably foreseeable, arose naturally, or was in the contemplation of the parties.

16(h) The Building Designer’s total aggregate liability to the Client arising out of or in connection with the Design Services, whether in contract, in tort (including negligence), in equity, under statute or otherwise, is limited to the Fee. This limit does not apply to liability for wilful misconduct, or fraudulent or criminal acts or omissions.

16(i) To the extent that the Building Designer has any liability to the Client, the Client must give notice of any Claim it may have against the Building Designer within two years from the date the Building Designer's engagement concludes in accordance with clause 3(a). The Client shall not be entitled to commence any action or bring any Claim against the Building Designer after that date unless the Client issued legal proceedings before that date.

16(j) If, and to the extent that, any part of this clause 16 is void as a result of section 64 of the Australian Consumer Law, then the Building Designer's liability for a breach of a condition or warranty is limited to supplying the relevant Design Services again, or paying the cost of having the Design Services supplied again.

17. Unexpected Events

17(a) If an Unexpected Event affecting a party precludes that party (the precluded party) either partially or wholly from complying with its obligations under this Agreement, then:

• as soon as reasonably practicable after the Unexpected Event arises, the precluded party must notify the other party of the Unexpected Event, how it is affecting the precluded party’s performance to the best of that party’s knowledge, the anticipated period of delay, and what the precluded party intends to do to mitigate or remove the effect of the delay if possible; and
• to the extent and for the period that the precluded party is precluded by the Unexpected Event from complying with its obligations under this Agreement, those obligations will be suspended.

17(b) The precluded party must act as promptly as possible to take all reasonable steps available to mitigate or remove the Unexpected Event and its effect.

17(c) Clause 17(a) does not apply to any obligation to pay money.

18. Variations in Design Services – Extra Service

18(a) Where any variation in Design Services is required by the Client, or the Design Services are varied due to causes beyond the control of the Building Designer, the Client must give the Building Designer written notice outlining the variation. The scope of the Design Services cannot be varied except by written notice delivered under this clause 18.

18(b) Within 7 days of receiving a notice under clause 18(a), the Building Designer must give the Client a notice that states the effect the variation will have on the Design Services and the Works; if the variation will result in any delay, the Building Designer’s reasonable estimate of the length of that delay; and the cost of the variation and its effect on the Fee.

18(c) The Building Designer must comply with clause 18(b) prior to proceeding with the variation.

18(d) If both parties agree to proceed with the variation, the Fee shall be adjusted by the value of all variations, with the value ascertained based on the rates set out in Item 10 of Part 2.

19. Site Signage – Extra Service

The Client expressly authorises the Building Designer to erect temporary site signage identifying the project as being designed or documented, as applicable, by the Building Designer. The form and positioning of the site signage shall be determined by the Building Designer, subject to any reasonable objection made by the Client. The Client shall allow the Building Designer to maintain the site signage until completion of the Works. This will only be performed as an extra service for an agreed fee.

20. Termination of Agreement

20(a) By the Building Designer. Should the Client:

• fail to pay the Building Designer any amounts payable in accordance with this Agreement; and/or
• be in breach of any provision of this Agreement; and/or
• show rude or aggressive behaviour; and/or
• fail to provide instructions or communicate for a period of 10 business days; or
• experience an Insolvency Event,

(a "Client Default"), the Building Designer may give the Client a written notice under clause 20(a)(i) requiring that the Client remedy the Client Default within 7 days.

20(a)(ii) If the Client fails to remedy the Client Default within 7 days of receiving the notice referred to in clause 20(a)(i), to the reasonable satisfaction of the Building Designer, the Building Designer may terminate this Agreement by giving 7 days' notice in writing to the Client.

20(a)(iii) Upon termination of this Agreement by the Building Designer, the Client shall pay all amounts payable in accordance with this Agreement for the design and project management services executed up to the date of termination, together with all disbursements incurred to that date, an administrative job cancellation fee of $850.00 plus GST, and an amount for loss of an expectation of profit in contemplation of completing the services.

20(b) By the Client. Should the Building Designer:

• fail to supply the Design Services with reasonable care and skill; and/or
• be in breach of any provision of this Agreement; and/or
• experience an Insolvency Event,

(a "Building Designer Default"), the Client may give the Building Designer a written notice under clause 20(b)(i) requiring that the Building Designer remedy the Building Designer Default within 7 days.

20(b)(ii) If the Building Designer fails to remedy the Building Designer Default within 7 days of receiving the notice referred to in clause 20(b)(i), to the reasonable satisfaction of the Client, the Client may terminate this Agreement by giving 7 days' notice in writing to the Building Designer.

20(b)(iii) Upon termination of this Agreement by the Client, the Client shall pay all unpaid amounts due and payable to the Building Designer in accordance with this Agreement for the services executed up to the date of termination, together with all disbursements incurred to that date and an administrative job cancellation fee of $850.00 plus GST.

20(c) Project management termination. Termination of a project management engagement by either party requires a minimum of 7 days' written notice. Should the Client terminate prior to the completion of the initial fixed term, or any subsequent term, the remaining balance of the agreed contract amount becomes immediately due and payable. For all month-to-month agreements, an up-to-date invoice will be provided upon a termination request.

21. Dispute Resolution

21(a) If any dispute or difference arises between the Building Designer and the Client in connection with this Agreement, either party shall give the other a written notice of dispute identifying and providing details of the dispute.

21(b) Within 14 days of service of the written notice of dispute, the Building Designer and the Client shall confer at least once to resolve the dispute.

21(c) If the dispute is not resolved within 21 days of service of the written notice of dispute, and the amount in dispute is greater than $10,000, the dispute must be referred to mediation. If the parties cannot agree on a mediator, a mediator shall be selected by the President of the Victorian Chapter of the Resolution Institute.

21(d) The parties must pay the mediator's remuneration in equal shares. The Resolution Institute Mediation Rules, as amended from time to time, shall apply to the mediation.

22. Refund Policy

22(a) Buildpoint is committed to delivering high quality architectural drafting services. Refunds are only issued where the Building Designer fails to deliver the agreed services.

22(b) Refund requests will be assessed on a case-by-case basis, and clients must provide written notice of the issue.

22(c) Because other contractors may be involved in developing your documentation, the 50% deposit paid under Item 11 of Part 2 is non-refundable once preliminary site work or drafting setup has commenced.

22(d) Project management services are excluded from this refund policy. All monies paid for project management are non-refundable, regardless of project status or completion.

22(e) Nothing in this clause 22 limits any right the Client may have under the Australian Consumer Law, including the right to a remedy where a consumer guarantee is not met.

23. Interest, Administration and Recovery Fees

Any amount not paid by the date required in this Agreement entitles the creditor to interest on that amount at 5% per annum above the Commonwealth Bank Indicator Lending Rate, calculated daily from the due date until payment is received in full. Recovery fees and all collection expenses shall be added to the outstanding amount.

24. Governing Law

The laws in force in Victoria govern this Agreement, and the parties submit to the jurisdiction of the courts and tribunals of Victoria.

25. Entire Agreement, No Assignment, Variation, No Representations

25(a) This Agreement is the entire agreement between the parties on everything connected with its subject matter, and supersedes any prior agreement connected with that subject matter.

25(b) This Agreement cannot be varied unless the variation is in writing and signed by the parties.

25(c) The parties acknowledge that no reliance has been placed on any prior agreement or representation.

25(d) A party may not assign or sub-contract the whole or any part of its rights or obligations under this Agreement without the prior written consent of the other party.

25(e) A waiver of any provision of, or right or obligation under, this Agreement must be in writing.

25(f) The parties warrant and represent that they have been provided with an effective opportunity to negotiate the terms of this Agreement, and that the terms of this Agreement are reasonably necessary to protect the legitimate interests of the parties.

25(g) All exclusions, indemnities and limitations of liability contained in this Agreement shall survive termination of this Agreement and the conclusion of the Building Designer's engagement in accordance with clause 3(a).

26. Additional Conditions of this Agreement

26(a) If there are any additional conditions applicable to this Agreement, those conditions will be signed by both parties and attached to this Agreement. The additional conditions shall take precedence to the extent of any inconsistency.

26(b) Our office shall use the information provided by the Client. Any further information required shall be paid for as a disbursement under clause 10 upon invoice.

26(c) If the Client has provided our office with another office's drawings, the Client must obtain written consent from the original author and release the Building Designer from any copyright infringement. Our office shall not proceed with any works until this letter of consent has been received.

26(d) Planning applications can typically take up to 12 months to reach an outcome, and in some cases longer.

26(e) All permit applications, once lodged, are under the control of the relevant authority. While we may follow up on your behalf, we cannot control job timeframes and this remains beyond our office's control.

26(f) Rude or aggressive behaviour or conduct will not be tolerated and may result in the Building Designer terminating this Agreement under clause 20(a). An up-to-date invoice will be issued and may include the job cancellation fee of $850.00 plus GST.