LDDesign Terms and Conditions

Part 1 General matters and definitions

1.1 LDDesign, ABN 93 678 189 553 is referred to herein as LDDesign, us or we.

1.2 These terms of engagement shall be read in conjunction with the schedule of fees and the fee proposal. Together these documents shall form the basis of a contract of services between LDDesign and the client.

1.3   “The proposal” means the letters and other documents prepared by LDDesign and submitted to the client to describe the scope of works being undertaken, the fee and reimbursable expenses. The “agreement” means the entire contractual agreement between the parties.

1.4  The client shall be defined as the party addressed in the fee proposal or disclosed in the acceptance, and that party shall be the party to which invoices shall be sent and held responsible for the payment of such invoices. No work shall commence until a completed acceptance has been signed and returned to LDDesign.

1.5  Any person, representative, or director who signs this agreement or any associated agreement on behalf of a client shall be liable jointly and severally with the client for any of the client’s obligations hereunder.

Part 2- Role of  LDDesign

2.1 The Building Designer / Director shall provide to the client the design and drafting services described in the proposal which forms part of the agreement.

2.2  In performing the service the building designer shall exercise the degree of skill, care and diligence normally exercised by members of the design profession performing services of a similar nature in accordance with the ethics of the VBA and Design Matters National.

Part 3- Role of the client.

3.1 The client may appoint a person to act as his representative and give notice to LDDesign of the name of the person so appointed.

3.2 The client shall as soon as practicable make available to LDDesign all information, documents and other particulars relating to the clients requirements for the project.

Part 4- Payment to LDDesign

4.1 The Deposit Amount stated on the Fee Proposal must be paid before commencement of the scope of works.

4.2 Unless otherwise agreed all work shall be invoiced when completed (or progressively on a monthly basis for projects extending beyond 30 days), and all monies shall be due and payable within 7 days of an invoice being rendered or as set out in the fee proposal.

4.3  Unless a dispute is raised in relation to the contents of an invoice within 7 days of the date of the invoice the invoice shall be deemed to be correct and payable. Any adjustment made to an invoice shall be deemed to be as of the date of the original invoice.

4.4  The client agrees to pay penalty interest at 2% higher than the rate as set from time to time under section 2 of the  Penalty Interest Rates Act 1983 (Vic) on any overdue accounts left unpaid for 7 days, such interest to accrue from the date the account is rendered.

4.5  The client agrees to pay any costs incurred by LDDesign on a solicitor/client basis with respect to legal proceedings arising out of a failure by the client to pay an amount due and payable under this agreement and further agrees to pay LDDesign reasonable costs of engaging debt collection services to recover any debt arising hereunder.

Part 5- Scope of Liability

 5.1  The liability of LDDesign to the client arising out of the performance of the service, whether under the law of contract, tort or otherwise, shall be strictly limited to those damages which are directly cause by LDDesign.

5.2 The client acknowledges that in order to complete the scope of works LDDesign may engage the services of subcontractors who are to assist LDDesign generally or who have specific expertise. LDDesign shall not under any circumstances be liable for any claim arising howsoever in relation to the conduct of an independent subcontractor engaged by LDDesign or any of their subcontractors.

5.3  The client indemnifies and holds harmless LDDesign with respect to any claim howsoever arising in relation to any claim arising from the conduct, actions, or failure to act by an independent subcontractor.

5.4 Whilst LDDesign will undertake reasonable efforts to assist the client, should there be any disputes between the client and a subcontractor LDDesign is not in any way liable to ensure the resolution of same and the client should liaise with the subcontractor directly to try resolving any disputes.

5.5 The maximum liability of LDDesign to the client arising out of the performance or non-performance of the services, whether under the law of contract, tort or otherwise, shall be $200,000 unless the parties specifically agree otherwise.

5.6 The client indemnifies and holds harmless LDDesign with respect to any claim howsoever arising in relation to a claim by a third party whom is not party to this agreement in relation to any matter arising out of the service.

Part 6- Copyright and use of documents.

6.1 The parties agree that the completion date referred to herein and in any past or future communications is an estimate only. LDDesign will work to the best of their abilities to complete works within the timeframe provided. However, LDDesign do not guarantee that the timeframe will be strictly complied with.

6.2 The client acknowledges that LDDesign is entitled to a reasonable extension of time to complete the works. Such reasonable extension of time is to be at LDDesign’ sole and unfettered discretion.

6.3 So far as is reasonably practicable LDDesign will provide to the client a notice in writing and/or orally once they have become aware that works will be delayed. However, failure to comply with this shall not vitiate LDDesign’ right to extend the completion date.

6.2 Notwithstanding any other provision herein the client acknowledges that LDDesign is entitled to extend the timeframe to complete the works if progress is delayed by a variation request by the client or if the cause of the delay is beyond LDDesign’ direct control.

Part 7- Copyright and use of documents.

7.1  Copyright in all drawings, reports, specifications, and other documents produced by LDDesign  (and to the extent applicable, by any of LDDesign’ subcontractors) in execution of the agreed scope of works shall remain the property of  LDDesign. The written agreement of LDDesign shall be obtained before any assignment of copyright takes place.

7.2 The Client shall have a licence to use the documents referred to in clause 7.1 for the purpose of completing the project. However, the client shall not use or make copies of such documents in connection with any work other than work comprised in the project, except as specifically required by law, unless express approval is given in advance by LDDesign .

7.3 If the client is in breach of any obligation under this agreement, LDDesign may in writing or orally revoke the licence referred in clause 7.2 and the client must return all documents and copies therefore to LDDesign within seven days of receiving the notice of revocation of licence.                        

Part 8- Dispute Determination

8.1 Any dispute between the client and LDDesign shall first be the subject of mediation between the parties using the services of a mediator acceptable to both parties. The costs of the mediation shall be resolved during mediation. This provision shall not however prevent LDDesign from instituting legal action for the recovery of monies owed by the client to LDDesign. Dispute resolution shall comply with relevant government regulations.

Part 9 Termination of services

9.1 The Client may only terminate their obligations under the agreement:

  1. In the event of a substantial material breach of this agreement by LDDesign , which breach has not been rectified within 30 days of written notice by the client of such breach, or longer as the client may agree.

  2. Upon giving “LDDesign” 30 days written notice of their intention to do so.

9.2 If the engagement of LDDesign is terminated for any reason other than for material breach of this agreement by LDDesign, we shall be entitled to pro rata payment for the services carried out and consequential costs and expenses incurred as a result of the termination for the period up to and including the date of termination.

9.3 LDDesign may suspend or terminate their obligations under this agreement:

  1. In the event of monies payable to LDDesign pursuant to this agreement or otherwise being outstanding for more than the agreed period and such debt (including any interest) not being fully liquidated within 7 days of being provided with a notice of default.

  2. In the event of a substantial breach by the client of their obligations under the agreed scope of works, which breach has not been rectified within 30 days of written notice by LDDesign , or longer as LDDesign may agree.

  3. In the event that LDDesign in its sole and unfettered discretion determines that the project or works are not able to be completed within a reasonable time, or the client has amended the scope of works so as to make compliance with this agreement by LDDesign impractical or unduly cumbersome.