Draft Terms & Conditions
DISCLAIMER
While a professional level of care will be taken by Sydney Access Consultants in preparing the Access Report, Sydney Access Consultants does not accept responsibility or liability for the result of specific action taken on the basis of this information nor for any errors or omissions.
Legal issues in the area of anti-discrimination law are in the process of change. In addition, constant change is occurring in relation to Australian Standards and Building Codes. Due reference should be given to these. All actions taken by a public authority, organisation or individual in reliance on an Access Audit remain the responsibility of that public authority, organisation or individual. The Authorised Access Report and all preceding drafts are copyright© and must not be reproduced or forwarded to any organisation other than the client for which it was prepared.
REPORT TERMS AND CONDITIONS - GENERAL
Sydney Access Consultants Fee: the amount(s) declared in the Agreement as being payable by the Client to the Sydney Access Consultants for the Agreed Services. Agreed Services: the services to be provided by the Sydney Access Consultants to the Client as disclosed in Part 2 of this Agreement. Agreement: the agreement between the Client and the Sydney Access Consultants consisting of Parts 1, 2 and 3 of this document and all attachments listed. Brief: the statements and materials assembled by the Client in a Project requirement document, brief or a request for proposal document or any other similar document to summarise the Client’s expressed requirements, to address the Client’s preferences and priorities, and to summarise the impact of context, environment, and prevailing legislation, at the time of signing the Agreement. Client: the Person named as the Client in this Agreement. Project: the project identified in this Agreement. Working Day: any calendar day other than a Saturday, Sunday or a gazette public holiday within the jurisdiction where the Project is located. Works: any permanent or temporary structure, building, fixture or access constructed or required to be constructed on the Site based on the Sydney Access Consultants’ documents as part of the Project.
A. Obligations
A.1 The Sydney Access Consultants shall perform the Agreed Services set out in this Agreement exercising a reasonable level of skill, care and diligence ordinarily provided by a qualified Access Consultant working in the same or similar locality under the same or similar circumstances.
A.2 The Sydney Access Consultants undertakes to advise the Client of any matter that may affect the performance of the Agreed Services including circumstances or instructions that may require a variation of the service and a change to the Sydney Access Consultants’ Fee.
A.3 The Client agrees to directly appoint all other consultants required by the Project that are not part of this Agreement, including the sub-consultants presented to the Client by the Sydney Access Consultants in Part 2 of this Agreement. The Client will ensure that all other consultants/sub-consultants/ contractors/subcontracts maintain professional liability insurance as appropriate for the services provided.
A.4 The Client agrees to provide the Sydney Access Consultants with a Brief and shall advise the Sydney Access Consultants of the relative priorities of the Brief, by way of meetings and written directions or communications as necessary to ensure complete understanding of such Project priorities by the Sydney Access Consultants.
A.5 The Client will ensure that there is no change made at any time to the Sydney Access Consultants’ Agreed Services, or the Brief, without the prior written acknowledgment by the Sydney Access Consultants.
A.6 The Client shall hold each sub-consultant/contractor/sub-contractor however appointed, and not the Sydney Access Consultants, responsible for the proper performance of their work.
B. Fees
B.1 The Client must pay the Sydney Access Consultants in accordance with Part 2 of this Agreement all fees due plus applicable taxes and expenses. Payment of the Sydney Access Consultants’ account must be made within seven (7) Working Days of the date of the invoice. All fees that remain unpaid thereafter will incur interest charges at a rate of 18% per annum (NAB Visa credit card rate).
B.2 Where this Agreement has been entered into by an Agent (or a person purporting to be an Agent) on behalf of the Client, the Agent and the Client shall be jointly and severally liable for the payment of all fees due to the Sydney Access Consultants under this Agreement.
B.3 The Client cannot deduct, withhold or reduce any sum payable to the Sydney Access Consultants under this Agreement by reason of claims or alleged claims against the Sydney Access Consultants.
B.4 The Client must promptly notify the Sydney Access Consultants in writing of any dispute regarding fees, and give the Sydney Access Consultants sufficient details to be able to respond. The dispute resolution procedure in section F shall apply to any such disputes on fees.
B.5 Where, for any reason, the Sydney Access Consultants provides only part of the Agreed Services as set out in Part 2 of the Agreement, the Sydney Access Consultants shall be entitled to payment in full for all services completed together with a fair and equitable proportion of the outstanding fee, to reflect the portion of partial services completed.
C. Insurance
C.1 The Sydney Access Consultants shall take out and use reasonable endeavours to maintain professional indemnity insurance in the sum of not less than $250,000, subject to the various terms, exclusions and limitations of the policy such as; an exclusion for toxic material, leaky buildings, weathertightness claims.
C.2 The Sydney Access Consultants will use all reasonable endeavours to maintain insurance for a period of 3 years from completion of the Sydney Access Consultants work.
C.3 The Client must provide to the Sydney Access Consultants evidence of the separate consultants’, sub-consultants, contractors and sub-contractors professional indemnity insurance.
D. Liability
D.1 If the Sydney Access Consultants is liable to the Client (whether in contract, tort or otherwise), the Sydney Access Consultants will only be liable for any reasonable foreseeable and fully mitigated damage, loss or expense incurred by the Client, caused directly by a breach of the Sydney Access Consultants’ legal obligations. Sydney Access Consultants shall not be liable to the Client under this Agreement for the Client’s indirect, consequential or special loss of profit, howsoever arising whether in contract tort or otherwise.
D.2 The extent of Sydney Access Consultants’ liability (whether in contract tort or otherwise) is reduced proportionately to the extent that the Client and/or any other person, including any third party, has contributed to the claim, liability, damage, loss or expense and irrespective of whether such contribution arises in contract, tort or otherwise.
D.3 Neither the Sydney Access Consultants nor the Client shall be liable to the other for any loss or damage unless a claim (whether in contract, tort or otherwise) has been filed in Court, or any Tribunal which has jurisdiction to determine a claim, within six years of the date of the act or omission giving rise to the claim or within the limitation period set by the applicable limitation of action statute to which the claim relates, whichever is the earlier provided always that nothing in this clause shall be construed to exclude any compulsory limitation of action provisions which cannot by law be excluded or restricted in any contracts made between the parties.
D.4 In the circumstances where the Agreed Services (as described in this Agreement) are reduced, limited or varied by later agreement or the Agreement is ended prior to the completion of the Agreed Services, the Sydney Access Consultants’ liability will attach only to those services actually performed and then only to the extent that the reduction of that part of the Agreed Services has not compromised or not denied the Sydney Access Consultants the opportunity to correct the performed services or to otherwise mitigate the Client’s loss.
D.5 The Sydney Access Consultants is not liable for any damage, loss or expense incurred by the Client as a consequence of any change that the Client or any other person makes to the Sydney Access Consultants’ documents, or from any variation to the Works from the Sydney Access Consultants’ documents or any variation to the Project resource consent or the Project building consent, made without prior written approval by the Sydney Access Consultants.
D.6 The Sydney Access Consultants shall not be liable to any person other than the Client, and disclaims responsibility, in tort or otherwise, for any liability, damage, loss or expenses suffered or incurred by such person. In the event that the Project to which the Sydney Access Consultants’ services relate is leased, transferred, sold, or otherwise disposed of in part or whole to other persons, then the Client warrants that such persons shall be advised in writing that the Sydney Access Consultants accepts no responsibility in law to them. In the event of breach of this clause, the Client and in the case of a company its directors, shall fully indemnify the Sydney Access Consultants against any claim by such persons, whether such claim is in tort or otherwise.
D.7 The maximum aggregate amount payable by the Sydney Access Consultants, whether in contract, tort or otherwise, in relation to claims, liabilities, damages, losses or expenses is limited to $250,000 or five times the Sydney Access Consultants’ fee for the Agreed Services, whichever is the lesser.
D.8 The Client shall indemnify the Sydney Access Consultants against the adverse effects of all claims including claims by third parties which arise out of or have a connection with the Agreement and are made after the expiry of the period of liability referred to in clause D.3. For avoidance of doubt the indemnity includes claims in negligence made against the Sydney Access Consultants.
D.9 The Client acknowledges that the Sydney Access Consultants operates through employees, directors, officers, agents and sub-consultants and agrees that no reliance has or will be placed on them personally by the Client in connection with this Agreement on the performances of the Agreed Services.
D.10 The limitations of liability as described above will apply to the maximum extent permitted by law and will confer to any extent relevant a benefit on the employees, directors, officers, agents or sub-consultants of the Sydney Access Consultants.
E. Copyright and License
E.1 The Sydney Access Consultants retains copyright in all designs, drawings, models, plans, specifications, design details, photographs, and any other materials provided by the Sydney Access Consultants in connection with the Project (“the Materials”).
E.2 The Sydney Access Consultants grants, subject to payment of all outstanding fees, to the Client a non exclusive limited license to use and reproduce the Materials for all purposes relating to the Project.
E.3 The Sydney Access Consultants shall have no liability for any use of the Materials other than that for which the same were originally prepared and provided.
E.4 If the Sydney Access Consultants rightfully terminates the Agreement for causes as specified in section H, the license granted under section E will be revoked.
E.5 If the Client wishes to use any parts of the Materials for any further stage or extension of the Project, any major alterations to the completed works or for any other project, and the Sydney Access Consultants is not appointed to provide related services, the Client must obtain the Sydney Access Consultants’ prior written consent which may include conditions relating to each re-use including but not limited to the payment of a reasonable license fee.
E.6 At the completion of the Agreed Services or in the event of the early ending of this Agreement, the Client will be entitled to retain one copy of the Materials in printed or passive electronic form such as PDF. The Sydney Access Consultants will not be required to provide any of the Materials in CAD or any other active electronic form.
F. Dispute Resolution
F.1 Any disputes between the Client and the Sydney Access Consultants in relation to this Agreement must first be attempted to be settled in good faith. Failing resolution the Client or the Sydney Access Consultants may by notice require that the matter in dispute be referred to mediation.
F.2 If mediation has not occurred or settlement is not achieved within 30 Working Days of the notice requiring mediation the Client and the Sydney Access Consultants may agree to refer the dispute to Arbitration or failing agreement, either party may refer the matters to the Courts for resolution. In the event of a dispute the Sydney Access Consultants may by notice in writing to the Client suspend its obligations under this Agreement. In that event the Sydney Access Consultants will not be liable to the Client or any other person for losses arising from such suspension of work.
G. Notice of Defects and Timelines
G.1 If, during the term of this Agreement or after completion of it, the Client becomes aware of any problem with the design, fault or defect in the Project, or non- compliance with the Project’s contract documents, the Client must promptly, but not later than 30 Working Days after becoming aware of it, notify the Sydney Access Consultants about it in writing. If the Client does not do this the Client will be treated as having waived any claim the Client may have against the Sydney Access Consultants (in contract, tort or otherwise) in relation to the problem, fault or non- compliance.
G.2 Unless otherwise expressly agreed by the Sydney Access Consultants in writing, all timelines, schedules, milestones or dates provided by the Sydney Access Consultants or specified in the Brief or any of the Sydney Access Consultants’ documents which relate to the performance of the Agreed Services by the Sydney Access Consultants are estimates only and the Sydney Access Consultants shall not be in any way liable for any loss or damage arising from, or incurred in respect of, a delay in the performance of any part of the Agreed Services if performance is prevented by any reason, including because of the negligence or fault of the Sydney Access Consultants, its employees, directors, officers, agents and sub-consultants.
H. Termination and Suspension
H.1 The Client or the Sydney Access Consultants may end this Agreement by writing to the other at their last known address. This Agreement will end 20 Working Days after the date the notice is sent.
H.2 Without limiting any other rights the Sydney Access Consultants may have in this Agreement or in law or equity, the Sydney Access Consultants may suspend the performance of any part of the Agreed Services by way of a notice in writing to the Client if the Client fails to make full payment of all amounts due and payable by the Client under this Agreement within the due date(s) for the duration until such payment is made.
I. General
I.1 The law applicable to this Agreement shall be the law of the state or territory of the Sydney Access Consultants' address stated in the Agreement.
I.2 The Sydney Access Consultants shall be entitled to rely upon the accuracy and completeness of the information furnished by the Client.
J. Conflict of Interest
J.1 The Sydney Access Consultants must inform the client immediately of any matter connected with the Sydney Access Consultants' services that gives rise to a conflict of interest in relation to the Sydney Access Consultants' work as regulated by statutory requirements, including codes.
J.2 The Sydney Access Consultants is entitled to immediately suspend work under this agreement until the conflict of interest is resolved, provided that within 48 hours of suspending work the Sydney Access Consultants notifies the client in writing of the time and date work was suspended and the relevant conflict f interest.
J.3 During the period of suspension all rights and entitlements of the Sydney Access Consultants under this agreement are preserved as though the suspension had not taken place, except that whilst suspension lasts, an entitlement to progressive payment of fees falling due in the period of suspension obliges the client to pay for the work carried out prior to the period of suspension.
J.4 The period of suspension ends when the client is notified by the Sydney Access Consultants in writing that work has resumed, or the contract is terminated, whichever occurs first.
J.5 Nothing in this clause prevents the client or the Sydney Access Consultants treating a conflict of interest under clause as a dispute or difference and referring it to mediation in accordance with Clause F as applicable.