1.
Definitions
1.1
“CBA Design” shall mean CBA
Design Ltd its successors and assigns or any person acting on behalf of and with the
authority of CBA Design Ltd.
1.2
“Client” shall mean the Client (or
any person acting on behalf of and with the authority of the Client) as described on any quotation, work authorisation or other form as
provided by CBA Design to the Client.
1.3
“Guarantor” means that person (or persons), or entity, who agrees to be
liable for the debts of the Client on a
principal debtor basis.
1.4
“Services” shall
mean all Services supplied by CBA Design to the Client (and includes any advice
or recommendations) and are as described on the invoices, quotation, work
authorisation or any other forms as provided by CBA Design to the Client.
1.5
“Price” shall
mean the price payable for the Services as agreed between CBA Design and the Client
in accordance with clause 3
of this contract.
2.
Acceptance
2.1
Any instructions
received by CBA Design from the Client for the supply of Services and/or the Client’s
acceptance of Services supplied by CBA Design shall constitute acceptance of
the terms and conditions contained herein.
2.2
Where more than
one Client has entered into this agreement, the Clients shall be jointly and
severally liable for all payments of the Price.
2.3
Upon acceptance
of these terms and conditions by the Client the terms and conditions are
binding and can only be amended with the written consent of CBA Design.
2.4
The Client shall
give CBA Design not less than fourteen (14) days prior written notice of any
proposed change of ownership of the Client or any change in the Client’s name
and/or any other change in the Client’s details (including but not limited to,
changes in the Client’s address, facsimile number, or business practice). The Client
shall be liable for any loss incurred by CBA Design as a result of the Client’s
failure to comply with this clause.
2.5
The Client shall
provide to CBA Design, free of cost, as soon as practicable following any
request for information, all information in the Client’s power to obtain which
may pertain to the Services.
3.1
At CBA Design’s
sole discretion the Price shall be either;
(a)
as indicated on invoices provided by CBA Design to
the Client in respect of Services supplied; or
(b)
CBA Design’s quoted Price (subject to clause 3.2
) which shall be binding upon CBA Design provided that
the Client shall accept CBA Design’s quotation in writing within thirty (30)
days.
3.3
At CBA Design’s
sole discretion a deposit may be required.
3.4
At CBA Design’s
sole discretion;
(a)
payment shall be due on delivery of the Services, or
(b)
payment shall be due before delivery of the Services,
or
(c)
payment for approved Clients shall be made by
instalments in accordance with CBA Design’s payment schedule, or
(d)
payment for approved Client’s shall be due twenty
(20) days following the end of the month in which a statement is posted to the Client’s
address or address for notices.
3.5
Time for payment
for the Goods shall be of the essence and will be stated on the invoice or any
other forms. If no time is stated then payment shall be due seven (7) days
following the date of the invoice.
3.6
Where the
Services are carried out on a time charge basis the Fee shall be calculated by
multiplying the hours of service provided by the agreed hourly time charge.
3.7
CBA Design may
purchase such incidental goods and or services as are reasonably required for
CBA Design to perform the Services. The cost of obtaining such incidental goods
and/or services shall be payable by the Client and identified as disbursements
on all invoices.
3.8
CBA Design may
from time to time sub-contract some of the Services. CBA Design will secure a
quote or estimate for such services and gain Client approval before engaging
the sub-contractor for the work. The Client is liable to pay the
sub-contractor’s costs directly to the sub-contractor once the sub-contractor’s
account has been checked and certified for payment by CBA Design. CBA Design
may charge as an extra for this co-ordination work based on current hourly
charge rates.
3.9
Payment will be
made by cash, or by cheque, or by bank cheque, or by credit card, or by direct
credit, or by any other method as agreed to between the Client and CBA Design.
3.10
GST and other
taxes and duties that may be applicable shall be added to the Price except when
they are expressly included in the Price.
4.
Delivery Of Services
4.1
Delivery of the Services shall take place when the Client
takes possession of the Services at the Client’s nominated address.
4.2
At CBA Design’s
sole discretion the costs of Delivery are included in the Price.
4.3
The Client shall
make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery. In the event
that the Client is unable to take delivery of the Services as arranged then CBA Design shall be entitled to charge
a reasonable fee for redelivery.
4.4
Delivery of the Services
to a third party nominated by the Client is deemed to be delivery to the Client
for the purposes of this agreement.
4.5
The failure of CBA
Design to deliver shall not entitle either party to treat this contract as
repudiated.
4.6
CBA Design shall
not be liable for any loss or damage whatever due to failure by CBA Design to
deliver the Services (or any of them) promptly or at all, where due to
circumstances beyond the control of CBA Design.
5.
Partial Service
5.1
If the Client
requests a partial service (i.e. design & documentation only) CBA Design
will not undertake any site involvement and is not available to sign off on any
practical completion certificates or validate construction works. The Client,
by requesting a partial service understands and accepts full duty and
responsibility to ensure that all and any of the critical structural and
weather tightness detailing outlined in the supplied building consent
documentation is constructed in accordance with CBA Design’s plans. Consequently, CBA Design will not be liable
(in contract, tort or otherwise) for any claim, damage, liability, loss or
expense incurred by the Client arising in any way in relation to CBA Design not
carrying out the works as described in the construction contract which the
documentation prepared by CBA Design forms the whole or part of.
6.
Risk
6.1
If CBA Design
retains ownership of the Services nonetheless, all risk for the Services passes
to the Client on delivery.
7.
Client’s Disclaimer
7.1
The Client
hereby disclaims any right to rescind, or cancel any contract with CBA Design
or to sue for damages or to claim restitution arising out of any inadvertent
misrepresentation made to the Client by CBA Design and the Client acknowledges
that the Services are bought relying solely upon the Client’s skill and judgment.
8.
Title
8.1
CBA Design and Client
agree that ownership of the Services shall not pass until:
(a)
the Client has paid CBA Design all amounts owing for
the particular Services, and
(b)
the Client has met all other obligations due by the Client
to CBA Design in respect of all contracts between CBA Design and the Client.
8.2
Receipt by CBA
Design 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 CBA Design’s ownership or rights in respect of the Services shall
continue.
9.
Error and
Omissions
9.2
For defective
Services, which CBA Design has agreed in writing that the Client is entitled to
reject, CBA Design’s liability is limited to either (at CBA Design’s
discretion) replacing the Services or repairing the Services provided that the Client
has complied with the provisions of clause 9.1
.
10.
CBA
Design’s Liability
10.1
The Client agrees, to the extent permitted by law, that the liability
to the Client of CBA Design, its partners, associates and employees or CBA
Designs in any way arising from or connected with this agreement including,
without limitation, liability for negligence, will be limited to a maximum of
$250,000, or five times the Fee whichever is the lesser.
10.2
Although CBA Design will be liable to the Client for any loss or damage
suffered by the Client arising out of a direct breach by CBA Design of CBA
Design’s obligations under these terms and conditions, CBA Design shall be
under no liability whatever to the Client for any indirect loss and/or expense
(including loss of profit).
11.
Consumer Guarantees Act 1993
11.1
If the Client is
acquiring Services for the purposes of a trade or business, the Client
acknowledges that the provisions of the Consumer Guarantees Act 1993 do not
apply to the supply of Services by CBA Design to the Client.
12.
Intellectual Property
12.1
CBA Design shall
retain copyright of all intellectual property prepared by CBA Design. The
Client shall be entitled to use them only for the agreed scope of works and the
purpose for which they are intended. The ownership of factual data and
information collected by CBA Design and paid for by the Client shall, after
full payment, lie with the Client. The Client may reproduce drawings,
specifications and other documents in which CBA Design has copyright as
reasonably required in connection with the project for which the Services are
retained but not otherwise. The Client shall have no such rights where any fees
and/or expenses due to CBA Design have not been paid in accordance with this
agreement.
12.2
Receipt by CBA
Design 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 CBA Design’s ownership or rights in respect of the Services shall
continue.
12.3
The Client
warrants that all designs or instructions to CBA Design will not cause CBA
Design to infringe any patent, registered design or trademark in the execution
of the Client’s order and the Client agrees to
indemnify CBA Design against any action taken by a third party against CBA
Design in respect of any such infringement.
13.
Default
& Consequences Of Default
13.1
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 one half percent (2.5%) per
calendar month and such interest shall compound monthly at such a rate after as
well as before any judgment.
13.2
If the Client
defaults in payment of any invoice when due, the Client shall indemnify CBA
Design from and against all costs and disbursements incurred by CBA Design in
pursuing the debt including legal costs on a solicitor and own client basis and
CBA Design’s collection agency costs.
13.3
Without
prejudice to any other remedies CBA Design may have, if at any time the Client
is in breach of any obligation (including those relating to payment), CBA
Design may suspend or terminate the supply of Services to the Client and any of
its other obligations under the terms and conditions. CBA Design will not be liable to the Client
for any loss or damage the Client suffers because CBA Design has exercised its
rights under this clause.
13.4
If any account
remains overdue after thirty (30) days then an amount of the greater of $20.00
or 10.00% of the amount overdue (up to a maximum of $200) shall be levied for
administration fees which sum shall become immediately due and payable.
13.5
Without
prejudice to CBA Design’s other remedies at law CBA Design shall be entitled to
cancel all or any part of any order of the Client which remains unfulfilled and
all amounts owing to CBA Design shall, whether or not due for payment, become
immediately payable in the event that:
(a)
any money payable to CBA Design becomes overdue, or
in CBA Design’s opinion the Client will be unable to meet its payments as they
fall due; or
(b)
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
(c)
a receiver, manager, liquidator (provisional or
otherwise) or similar person is appointed in respect of the Client or any asset
of the Client.
14.
Security
And Charge
(a)
where the Client and/or the Guarantor (if any) is the
owner of land, realty or any other asset capable of being charged, both the Client
and/or the Guarantor agree to mortgage and/or charge all of their joint and/or
several interest in the said land, realty or any other asset to CBA Design or CBA
Design’s nominee to secure all amounts and other monetary obligations payable
under these terms and conditions. The Client
and/or the Guarantor acknowledge and agree that CBA Design (or CBA Design’s
nominee) shall be entitled to lodge where appropriate a caveat, which caveat
shall be withdrawn once all payments and other monetary obligations payable
hereunder have been met.
(b)
should CBA Design elect to proceed in any manner in
accordance with this clause and/or its sub-clauses, the Client and/or Guarantor
shall indemnify CBA Design from and against all CBA Design’s costs and
disbursements including legal costs on a solicitor and own client basis.
(c)
the Client and/or the Guarantor (if any) agree to
irrevocably nominate constitute and appoint CBA Design or CBA Design’s nominee
as the Client’s and/or Guarantor’s true and lawful attorney to perform all
necessary acts to give effect to the provisions of this clause 14.1
.
15.
Cancellation
15.1
CBA Design may
cancel any contract to which these terms and conditions apply or cancel
delivery of Services at any time before the Services are delivered by giving
written notice to the Client. On giving such notice CBA Design shall repay to
the Client any sums paid in respect of the Price. CBA Design shall not be
liable for any loss or damage whatever arising from such cancellation.
15.2
In the event
that the Client cancels delivery of the Services the Client shall be liable for
any loss incurred by CBA Design (including, but not limited to, any loss of
profits) up to the time of cancellation.
16.
Privacy Act 1993
16.1
The Client and
the Guarantor/s (if separate to the Client) authorises CBA Design to:
(a)
collect, retain and use any information about the Client,
for the purpose of assessing the Client’s creditworthiness or marketing
products and services to the Client; and
(b)
disclose information about the Client, whether
collected by CBA Design from the Client directly or obtained by CBA Design from
any other source, to any other credit provider or any credit reporting agency
for the purposes of providing or obtaining a credit reference, debt collection
or notifying a default by the Client.
16.2
Where the Client
and/or Guarantors are an individual the authorities under clause 16.1
are authorities or consents for the purposes of the
Privacy Act 1993.
16.3
The Client and/or
Guarantors shall have the right to request CBA Design for a copy of the
information about the Client and/or Guarantors retained by CBA Design and the
right to request CBA Design to correct any incorrect information about the Client
and/or Guarantors held by CBA Design.
17.
Health & Safety in Employment Act 1992
17.1
CBA Design has
not and will not at any time assume any obligation as the Client’s agent or
otherwise which may be imposed upon the Client from time to time pursuant to
the Health & Safety in Employment Act 1992 (the “HSEA Act”) arising out of
the engagement. The parties agree that
for the purposes of the HSEA Act, CBA Design shall not be the person who
controls the place of work in terms of the HSEA Act.
18.
Disputes Resolutions
18.1
If a dispute arises
between the parties to this contract 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. The arbitration should
be under a single arbitrator agreed upon by parties, or failing agreement, by
two arbitrators (one to be appointed by each party) and their umpire (appointed
by them prior to arbitration), such arbitration to be carried out in accordance
with provisions of the Arbitration Act 1996.
19.
General
19.1
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.
19.2
These terms and conditions and any contract to which they apply shall be
governed by the laws of
19.3
CBA Design shall be under no liability whatever to the Client for any
indirect loss and/or expense (including loss of profit) suffered by the Client
arising out of a breach by CBA Design of these terms and conditions.
19.4
In the event of any breach of this contract by CBA Design the remedies of
the Client shall be limited to damages which under no circumstances shall
exceed the Price of the Services.
19.5
The Client shall not be entitled to set off against or deduct from the
Price any sums owed or claimed to be owed to the Client by CBA Design.
19.6
CBA Design may license or sub-contract all or any
part of its rights and obligations without the Client’s consent.
19.7
CBA Design reserves the right to review these terms
and conditions at any time. If, following any such review, there is to be any
change to these terms and conditions, then that change will take effect from
the date on which CBA Design notifies the Client of such change.
19.8
The provisions
of the Contractual Remedies Act 1979 shall apply to this contract as if section
15(d) were omitted from the Contractual Remedies Act 1979.
19.9
Neither party shall be liable for any default due to
any act of God, war, terrorism, strike, lock-out, industrial action, fire,
flood, drought, storm or other event beyond the reasonable control of either
party.
19.10
The
failure by CBA Design to enforce any provision of these terms and conditions
shall not be treated as a waiver of that provision, nor shall it affect CBA
Design’s right to subsequently enforce that provision.
