RW ARCHITECTURAL DESIGN LTD TERMS OF TRADE
1.0 Initial Site Visit and Quote
1.1 The Supplier will initially visit the Site to gather relevant information. The Client agrees to disclose all relevant factors about the Site, and the Client acknowledges that the Supplier will act in reliance on information the Client provides about the Site.
1.2 The Supplier will then provide a Quote for the Project, which, if accepted by the Client or Authorised Representative, will require payment of an up-front deposit and be subject to and incorporate these Terms.
2.0 Design Drawing Services (Initial Concepts, Developed Concepts and Pricing Set Drawings)
If the Supplier is providing Design Drawing Services to the Client, then, unless expressly agreed otherwise in writing:
2.1 The cost of the Design Drawing Services will be in accordance with the Quote.
2.2 If further work is required in addition to the Quote (including any additional on-site visits or amendments to the Design Drawings), the costs of the Services may be reviewed by the Supplier and a variation to the Quote notified to the Client.
2.3 All disbursements and fees must be paid in cleared funds to the Supplier before any Design Drawings are provided to the Client. The Supplier will at its discretion retain a lien over Design Drawings until payment is received in full. As soon as practicable after payment in cleared funds, the Design Drawings will be made available to the Client. If the Design Drawings are provided prior to payment, then clauses 5.2 – 5.4 will apply.
2.4 The Supplier will own and retain all copyright and any other intellectual property in all Design Drawings and other information produced or procured by the Supplier in providing the Design Drawing Services. The Client agrees not to use or copy any Design Drawings (except for the purposes of carrying out the Project) without the express written consent of the Supplier, and further agrees to do all things and take all actions necessary to protect the Supplier’s intellectual property in the Design Drawings.
2.5 It is acknowledged by both parties that the Design Drawings are for conceptual and pricing purposes only, and are subject to further refinement before being able to be used for building consent purposes or as part of Working Drawings.
3.0 Working Drawing Services (Building Consent Drawings)
If the Supplier is providing Working Drawing Services to the Client, then, unless expressly agreed otherwise in writing:
3.1 Working Drawing Services will only be provided after Design Drawing Services.
3.2 The cost of the Working Drawing Services (Building Consent Drawings) will be in accordance with the Quote prepared by the Supplier and provided to the Client after the initial on-site visit to scope the Project.
3.3 The cost of the Working Drawings Services will include provision for:
(a) any on-site visits to the Project Address, as determined by the Supplier; and
(b) liaising with the relevant local authority to provide any additional information needed to gain the required consents, to the extent such information is missing from the Building Consent Drawings.
3.4 The cost of the Working Drawing Services is payable upon demand in writing by the Supplier. Disbursements include in particular the following (but without limitation):
(a) the Client will pay all printing and local authority application fees associated with the submission of the Building Consent Drawings to the relevant local authority;
(b) the Client will pay all disbursements incurred during Working Drawing Services;
(c) the Supplier will be under no obligation to submit Building Consent Drawings to the relevant local authority for approval until all costs associated with the Working Drawings Services have been paid.
3.5 The Client appoints the Supplier the agent of the Client for the purposes of the submission of the Building Consent Drawings to the relevant local authority, and for all dealings with the local authority.
3.6 If further work or additional attendances are required (including any additional on-site visits or amendments to the Building Consent Drawings), the costs of the Services may be reviewed by the Supplier and a variation to the Quote notified to the Client.
3.7 All disbursements and fees must be paid in cleared funds to the Supplier before any Building Consent Drawings are provided to the Client or the relevant local authority. The Supplier will at its discretion retain a lien over such Building Consent Drawings until payment is received in full. As soon as practicable after payment in cleared funds, the Building Consent Drawings will be made available to the Client or the relevant local authority. If any Building Consent Drawings are provided prior to payment, then the provisions of clauses 5.2 – 5.4 will apply.
3.8 The Supplier will own and retain all copyright and any other intellectual property in all Building Consent Drawings and other information produced or procured by the Supplier in providing Working Drawings Services. The Client agrees not to use or copy any Building Consent Drawings (except for the purposes of carrying out the Project) without the express written consent of the Supplier, and further agrees to do all things and take all actions necessary to protect the Supplier’s intellectual property in the Building Consent Drawings.
4.0 On-Site Consulting and Other Services
If the Supplier is providing On-Site Consulting Services or Other Services to the Client, then, unless agreed otherwise in writing:
4.1 The cost of the Services will be based on the time spent by the Supplier at its current charge out rates, plus GST and disbursements, which are determined and reviewed by the Supplier from time to time.
4.2 The Supplier will only provide advice or information to the Authorised Representative stated on the Quote or such other persons as agreed in writing.
4.3 In providing On-Site Consulting Services, the Supplier will only be responsible for advice or information provided on the Design Drawings, and not for any actions taken or decisions made in relation to use by other parties. The Supplier will have no responsibility or Liability for health and safety or other statutory or regulatory compliance while carrying out On-Site Consulting Services.
5.0 General Terms
5.1 These Terms (including the General Terms in this clause 5) apply to all Services provided for the Client by the Supplier (including Developed Design Services, Working Drawings Services, On-Site Consulting Services, or otherwise) and all other arrangements between the Supplier and the Client whether or not signed by the parties and unless agreed otherwise in writing. Where Services are provided that are not described in the Quote, these will deemed to be Other Services under clause 4.0 and these Terms will apply.
5.2 The Supplier may at its discretion request that the client pay a deposit for any services. If that applies, the Supplier will be under no obligation to commence carrying out any services until the deposit has been paid in cleared funds.
5.3 All disbursements and fees are payable within 7 days of the date the invoice is emailed to the Client. If any amount is unpaid on the due date, it will incur interest at the rate of 15% per annum (calculated daily) from the due date until payment is received in full in cleared funds. All costs incurred by the Supplier in enforcing payment (including solicitor and debt collection costs) will be payable by the Client upon demand in writing on a full indemnity basis.
5.4 If any costs or fees are due but not paid, the Supplier may at its option:
(a) suspend all services until payment is received in full; or
(b) terminate provision of any services, but without prejudice to any existing rights of the Supplier.
5.5 The Client grants the Supplier a security interest in all present and after acquired property of the Client for the purposes of securing payment by the Client. The Client waives any right to a verification statement and will do all things required to perfect the Supplier’s security.
5.6 The Supplier will maintain professional indemnity insurance throughout the period that the Services are being provided to an amount not less than $250,000.
5.7 In the event the Supplier is found to be Liable in respect of any services provided to the Client, the maximum liability of the Supplier is double the total fees charged by the Supplier to the Client for the services.
5.8 The Client will provide the Supplier with all information and documentation it requires to carry out the Services.
5.9 Other than where the Supplier has expressly given a written warranty to the Client, the Supplier makes no representations or warranties in respect of:
(a) the Services (other than the Supplier will undertake the Services diligently and with reasonable care); or
(b) any products quoted or described as part of the Services.
5.10 The Supplier will endeavour to meet any timeframes agreed in writing between the parties, but no failure or omission by the Supplier to supply the Services for any reasons or circumstances beyond the control of the Supplier will give rise to any claim against the Supplier whether under these Terms or otherwise.
5.11 If any dispute arises relating to the Project or these Terms, the parties will endeavour to resolve such dispute by discussion and negotiation in good faith. If agreement is not reached, then either party may elect mediation and will agree on a suitable person to act as mediator. If the parties cannot agree on a mediator, then either party may request that the President of the New Zealand Law Society appoint a mediator. If the parties do not resolve the dispute within 40 days of the mediator’s appointment, then either party may refer to matter to an expert adjudicator to determine. If the parties are unable to agree on the adjudicator, then either party may request that the President of the New Zealand Law Society appoint an adjudicator. This clause will not apply to any costs or fees invoiced by the Supplier, the payment of which may be enforced by such means as the Supplier determines.
5.12 If the Client is not the owner of the Property, the Client will procure the consent of the owner of the Project Address to these Terms on the basis that the Supplier has no Liability to such owner. The Client and the owner of the Project Address will be jointly and severally liable to the Supplier for the performance of these Terms.
5.13 These Terms, the Quote and the Proposal (if any), represent the entire agreement between the Supplier and the Client in relation to the Services and the Project, and any other representations are expressly excluded. These Terms prevail over the Proposal in the event of any inconsistency. Any variation to these Terms must be agreed in writing and signed by both parties.
5.14 These Terms are confidential between the Supplier, the Client and the owner of the Project Address, and must not be copied or disclosed to any person without the prior written consent of the Supplier.
5.15 Where the Supplier engages any third party on behalf of the Client:
(a) The Supplier has no responsibility for the work or services of that third party;
(b) The Client remains at all times responsible for all costs associated with work done by that third party, and in particular (but without limitation) the Client will indemnify the Supplier against any costs incurred by that third party in relation to the Project.
6.0 Definitions:
6.1 Authorised Representative means the authorised representative of the Client stated in clause 1.2 above, who has entered into this agreement on behalf of the Client and has authority to bind the Client in all respects.
6.2 Client means the person, company or other entity specified on the attached quote.
6.3 Design Drawings means all initial conceptual, developed conceptual and pricing set design documents, drawings, calculations, specifications, designs or other materials prepared or procured by the Supplier for the Client as part of the Design Services. The Design Drawings may (but are not required to) include a site plan, floor plan, dimensions, elevations, a cross-section, and are designed to be ready for pricing by a builder.
6.4 Design Drawing Services means the preparation of Design Drawings in relation to a Project, and all ancillary and related attendances (including but not limited to meetings with the Client, up to four (4) site visits, and liaison with relevant parties involved in the Project).
6.5 GST means Goods and Services Tax under the Goods and Services Tax Act 1985.
6.6 Liability means any and all liability of the Supplier to the Client (including any third parties) for costs, damages or other legally payable amounts including lost revenues, lost profits, lost management time, lost data, loss of savings, contracts, interest or goodwill, or any other consequential, indirect, special, punitive or incidental damages, whether foreseeable or not, for losses arising directly or indirectly out of the supply by the Supplier of the Services or otherwise (whether such losses are in contract, tort or otherwise).
6.7 On-Site Consulting Services means advice or guidance provided by the Supplier to the Client at the Project Address in relation to the Project.
6.8 Project means the particular construction or related activity being carried out by the Client at the Project Address by and at the risk of the Client.
6.9 Quote means any quote provided by the Supplier to the Client from time to time in connection with the Project and subject to these Terms.
6.10 Site means the property stated in the Quote.
6.11 Services means the Services described on the attached Quote and as applicable to the Project.
6.12 The Supplier means RW Architectural Design Ltd and its successors and assigns.
6.13 Terms means these Terms of Trade.
6.14 Working Drawings (Building Consent Drawings) means all building consent drawings and specifications (including all relevant documents, designs and calculations) required for the Project in order to enable a building consent application to be lodged for the Project with the relevant local authority.
6.15 Working Drawing Services means the preparation or procurement of all Building Consent Drawings.