PARTIES & DEFINED MEANINGS
1, This agreement is formed between CADDS GROUP PTY LTD (ACN 060 988 767) (CADDS Group) of 43A Sparks Road, Henderson in the State of Western Australia and the Client as mentioned in item 1 of Part 1.
2. The definitions and interpretation clause towards the end of this Part 3 sets out and explains the defined terms used in this agreement and the rules of interpretation that apply.
3. The Client engages CADDS Group to provide the engineering services in respect to the Client’s Project as specified in item 3.2 of Part 1.
4. The work that CADDS Group is required to undertake is separated into the stages mentioned in item 4.2 of Part 1.
5. In undertaking the work mentioned in the clause above, CADDS Group will provide to the Client the deliverables specified in item 3.3 of part 1. The said deliverables will be provided in a manner and form as determined in CADDS Group’s sole opinion having regard to Australian industry standards and the Client’s Project.
6. CADDS Group is not required to undertake any work until the prerequisites specified in item 3.1 of part 1 have been satisfied to the full satisfaction of CADDS Group.
7. In addition to any other terms in this agreement, the Exclusions are expressly excluded from the scope of this agreement, and if the Client wishes to have CADDS Group perform the matters specified in the Exclusions, CADDS Group is entitled to charge an additional fee for the performance of their services, which will be the amount specified in writing to the Client by CADDS Group, and if no such amount has been specified to the Client, then following as determined by CADDS Group’s sole opinion:
(a) the cost price charged to CADDS Group by the third party plus 10%; or
(b) at CADDS Group’s standard Hourly Rate for the time taken to perform the additional work mentioned in the Exclusion.
8. The Client must allow CADDS Group access to the Site if it is reasonably required by CADDS Group to complete the work under this agreement.
9. The Client must provide to CADDS Group at least 7 days before CADDS Group’s scheduled visit to the Site all information regarding any induction procedures which CADDS Group’s personnel are required to undertake before accessing the Site.
10. In addition to the above, the Client must provide CADDS Group an estimate of how long it expects any induction procedures to take. If the induction procedures takes more than 2 hours, or if there is a delay, which is not caused by CADDS Group, in undertaking the induction procedures for CADDS Group personnel, then CADDS Group is entitled to charge an additional Hourly Rate for the time above 2 hours or the length of the delay in respect of the said induction procedures.
11. The Client must ensure that all CADDS Group personnel are covered under its public liability insurance, and the Client must have public liability insurance coverage for at least $10,000,000.
12. The Client must ensure that all CADDS Group personnel are safe from harm.
13. The Client must ensure the Site complies with all relevant safety laws.
14. The Client must pay or reimburse CADDS Group for all travel expenses to the Site by CADDS Group personnel.
15. The Client must pay for all expenses and Disbursements regarding the induction and training that are related to visits to the Site by CADDS Group personnel.
16. Conceptual development means a conceptual design of the Project as determined appropriate in CADDS Group’s sole opinion having regard to Australian standards.
17. The conceptual development may be in a form as determined by CADDS Group including 3D PDF, screen captures or drawings.
18. The Client must approve the conceptual drawings before CADDS Group is required to undertake any subsequent stage of work as specified in item 4.2 of part 1.
19. The Client acknowledges that the conceptual drawings will form the bases of any subsequent drawings CADDS Group is required to provide to the Client under this agreement. The Client acknowledges that the conceptual drawings will further define the scope of the work and subsequent drawings. The Client acknowledges that major modifications to the conceptual drawings based on preference or change in scope may require a variation at the discretion of CADDS Group.
20. The Client must pay CADDS Group an additional fee charged at the Hourly Rate if any amendments are made to the conceptual drawings after they have been approved by the Client, which includes amending the subsequent drawings.
21. CADDS Group may request and authorise a person within the Client’s organisation to execute the conceptual drawings, if CADDS Group so chooses, and the Client must arrange such execution before CADDS Group is required to proceed to the next stage of work under this agreement.
22. The Client acknowledges that it is the obligation of the Client to raise any queries in respect to the conceptual drawings should the Client be uncertain of any matter in respect to the conceptual drawings.
23. CADDS Group may rely on oral statements as well as written statements by the Client as approval for the conceptual drawings by the Client.
ENGINEERING DESIGN AND CERTIFICATION
24. The engineering design and certification is to be completed after the conceptual drawings have been approved by the Client.
25. CADDS Group will provide the documents as it determines appropriate having regard to the Client’s Project, conceptual drawings and Australian engineering standards.
26. The Client must approve the engineering design and certification documents before any subsequent work is to be completed by CADDS Group.
PRODUCTION OF DESIGN DRAWINGS
27. The design drawings means more detailed drawings as determined at CADDS Group’s discretion having regard to the Client’s Project, conceptual drawings and industry standard.
28. Before CADDS Group can finalise the design drawings, CADDS Group may need further access to the Site to verify the drawings. If that occurs, the Client must allow CADDS Group personnel further access to the Site on the same terms as mentioned above (under the heading Site Visits) to these subsequent Site visits.
29. If the Client does not allow a subsequent Site visit for CADDS Group to verify the design drawings, then the Client acknowledges that there may be defects in the design and the Client will assume all risks for such defects.
30. The Client acknowledges that the design drawings are not suitable to build, fabricate or manufacture, and shop detail drawings are required for the build, fabricate or manufacture, unless CADDS Group advises otherwise in writing.
31. The Client acknowledges that if the Client decides to build, fabricate or manufacture from the design drawings, there are risks that the build, manufacture or fabrication could be flawed as the design drawings do not contain enough detail for such purposes.
32. If the Client has any technical queries after the design drawings have been approved, CADDS Group is entitled to charge its Hourly Rate for time taken in dealing with such queries.
PRODUCTION OF SHOP DETAIL DRAWINGS
33. Shop drawings refers to detailed drawings that allow the Client to fabricate, manufacture or build the subject of the drawings.
34. The shop detail drawings will be prepared in a manner as deemed suitable in CADDS Group’s sole discretion, having regard to the conceptual drawings, design drawings, the Client’s Project and industry standards.
35. The shop detail drawings will be made available to the Client in PDF format, or any other format as agreed in writing between the parties.
APPROVALS BY CLIENT & RELEASE OF FILES
36. CADDS Group is entitled to assume that the Client approves the documents provided to the Client if the Client does not raise any objections or amendments in respect to the documents after 14 days of CADDS Group providing the documents to a suitable person within the Client’s organisation.
37. In the event that CADDS Group makes the assumptions in the clause above, CADDS Group is entitled to proceed and do any act as if express approval of the documents has been expressly given by the Client to CADDS Group, and CADDS Group will not be liable for any Loss suffered by the Client as a result of CADDS Group taking any action pursuant to that clause.
38. CADDS Group is entitled to withhold at its sole discretion any native files in respect to any document or drawing provided to the Client. Without limiting this clause, CADDS Group may provide any native file to the document control department within the Client’s organisation.
FURTHER INFORMATION REGARDING SERVICES
39. The Client agrees and acknowledges the following in respect of the services provided by CADDS Group:
(a) If a thing is provided in an electronic format, it will be an electronic format as deemed suitable in CADDS Group’s sole opinion.
(b) If a thing is provided in paper format it will, unless expressly mentioned, a size, colour and on quality of paper as determined in CADDS Group’s sole opinion as appropriate to the Client’s Project.
(c) Where CADDS Group has the right to make a determination in respect to an opinion, that determination is unfettered and CADDS Group is not required to give any reasons or such an opinion.
(d) The Client must promptly provide all necessary and accurate information, documents and directions in order for CADDS Group to undertake the work it is required to perform under this agreement and provide the good and services under this Agreement. CADDS Group is not responsible for delays to deliverables or project schedules where the Client has not responded in a reasonable and prompt manner.
(e) The Client must obtain all statutory approvals for the Client’s Project.
(f) CADDS Group is not liable for the accuracy of cost estimates provided, including estimates provided by third party suppliers.
(g) To the full extent permitted by law, there is no express or implied warranty that any goods or services provided by CADDS Group in respect to the Client’s Project including any designs prepared by CADDS Group are fit for the Client’s purpose.
(h) The drawings or plans or anything similar which are prepared by CADDS Group will be to the Client’s drafting requirements or standards if specified by the Client and agreed by CADDS Group in writing before CADDS Group begins any work under this agreement.
(i) All design work (which includes drawings or plans or anything similar) will be compliant to the Australian Standards and statutory requirements at the time of design. If any legislation changes require amendments to the design or documentation, this will be charged as a variation to the Client and charged pursuant to CADD Group’s Hourly Rate.
(j) Any work required to be done by CADDS Group under this agreement does not include any services in relation to asbestos or other hazardous materials, or any other site contaminant;
40. The Client must pay any deposit requested by CADDS Group before CADDS Group supplies any goods and services to the Client. CADDS Group may withhold the supply of any goods or services until such a deposit is received.
41. CADDS Group may request any additional deposit, as determined in its sole opinion, before commencing any stage of work.
FEES & PAYMENT TERMS
42. The Client must pay CADDS Group the following:
(a) The fee specified in item 4.2 of part 1.
(b) The Disbursements incurred or charged by CADDS Group in the performance of the services under this agreement.
(c) The fees in respect of any variations or additional work as determined by this agreement.
(d) Any other fees, costs, charges or anything similar as specified in this agreement.
43. Unless expressly specified, any price, fee or anything similar specified in this document or accompanying documents or in writing does not include GST. The Client must pay CADDS Group all GST in respect of any supply of any goods and services under this agreement.
44. The Client must pay CADDS Group within 30 days of CADDS Group issuing an invoice to the Client.
45. CADDS Group is entitled to issue an invoice for its services if the Client raises no objection or amendments within 14 days of a document being provided to a suitably qualified person within the Client’s organisation or the Client.
46. Payments by credit card will incur a 4% surcharge.
47. CADDS Group’s fee excludes costs for any third party checking or verification of design or engaging any third party to provide services in respect to the Client’s Project where CADD Group deems necessary.
48. Where in this document or any other document regarding CADDS Group providing a quote or anything similar to the Client in respect to any of the stages of work, contain a reference to a foreign currency, the Client agrees to pay CADDS Group any additional payment representing any fluctuation in the currency as compared to the Australian dollar.
49. CADDS Group may issue an invoice to the Client at the completion of each of the respective Stages or it may issue an invoice before the completion of any Stage. If CADDS Group issues an invoice before the completion of any Stage, the Client must pay that invoice representing the completion of the relevant stage by CADDS Group, and such amount representing the completion of the stage will be determined in CADDS Group’s sole discretion.
50. CADDS Group reserves the right to suspend provision of services if any payment in relation to an issued invoice is overdue.
51. Payment is not to be withheld by the Client pending final sign-off by any external consultants.
52. The Client must pay CADDS Group all payments it is required to pay under this agreement without set-off.
53. Any quote or anything similar provided by CADDS Group to the Client is valid for 30 days from the date it is provided to the Client. CADDS Group may, in its sole discretion, agree to provide the services specified in the quote or something similar if the Client requests the work, the subject of the quote or something similar, to be done by CADDS Group after the expiry of the said 30 day period.
54. Additional services required by the Client after this agreement is signed, or variations to the contract will be assessed at CADDS Group’s Hourly Rate, or as otherwise agreed in writing.
TIME & EVENTS OUTSIDE OF CONTROL
55. CADDS Group will use its reasonable endeavours, having regard to its staffing and other projects, to comply with all time schedule specified in item 3.5 of part 1.
56. CADDS Group will notify the Client as soon as reasonably practical if it cannot meet the time schedule specified in item 3.5 of part 1.
57. To the full extent permitted by law, in no circumstances will CADDS Group be liable for any Loss (including consequential loss or damage) arising out of or connected with any delay in respect of delivery of goods or services under this agreement.
58. To the full extent permitted by law, CADDS Group will not be liable for any Loss the Client suffers due to a failure by CADDS Group to deliver the goods or provide the services in circumstances which are caused by events beyond CADDS Group’s control.
59. In the event that CADDS Group notifies the Client that a delay to the time schedule has occurred due to circumstances outside CADDS Group control, CADDS Group is entitled to extend the time for performance of the service or supply of goods which takes into account the said circumstances outside of CADDS Group’s control.
60. If CADDS Group’s services are protracted by any cause beyond CADDS Group’s control:
(a) CADDS Group will notify the Client in writing of the cause and anticipated extent of the protraction; and
(b) CADDS Group is entitled to additional fees and to a reasonable extension of the agreed time schedule.
61. Should the Client’s Project be delayed beyond 6 months from the time schedule, CADDS Group reserves the right to review CADDS Group’s fee structure to accommodate the impact of such delay. If the parties cannot agree to a revised fee structure, CADDS Group may terminate this agreement and the following provisions apply
(a) CADDS Group is entitled to the payment of all fees and disbursements incurred to date of termination and any other payments CADDS Group is entitled to under this agreement;
(b) In the event that this clause is exercised before any Stage is completed in full, CADDS Group is entitled to a payment representing a portion that CADDS Group has completed for that Stage, and that portion shall be determined solely at CADDS Group’s discretion and the Client must make payment.
62. If the Client causes any delay, CADDS Group is entitled to extend the time for performance of the service or supply of goods which takes into account such delay.
VARIATIONS TO CONTRACT
63. CADDS Group is entitled to claim additional fees over and above fees agreed in this agreement when the services CADDS Group is required to perform under this Agreement has increased or other unforeseen circumstances which lead to additional or expanded work not allowed for in this agreement. If the parties cannot agree to the additional fees, CADDS Group is entitled to charge its Hourly Rate for completing the additional work specified in this clause.
64. Once the Client has approved each drawing, document or design at each relevant Stage, then any amendments to those designs or drawings after approval will be charged to the Client at CADDS Group’s Hourly Rate.
65. Once CADDS Group has commenced work in accordance with the Client’s instructions and produced drawings, designs or anything similar in accordance with the Client’s instructions, and the Client changes the scope of those instructions after the work has been completed, then CADDS Group is entitled to charge its Hourly Rate for all further work arising from the changed instructions.
66. Subject to the below clause, the Client is not entitled to terminate this Agreement until CADDS Group has completed each Stage the Client engaged CADDS Group to perform. After CADDS Group has completed a Stage, and before CADDS Group can start the next stage, the Client may terminate this agreement by providing 14 days’ notice.
67. The Client may terminate before a Stage is completed by CADDS Group, if it pays CADDS Group the entire amount it would have paid CADDS Group had CADDS Group completed that Stage as well as paying CADDS Group any Disbursements and other costs it is obliged to pay to CADDS Group under this Agreement.
68. CADDS Group retains copyright in the Design.
69. We grant the Client an express but revocable license to use the Design for the Client’s Project for which it was intended, subject to the conditions that:
(a) No license is granted or implied under this agreement other than the express license;
(b) The license may be revoked by CADDS Group in writing if any invoice that we are entitled to submit under this agreement is overdue, in which case the license is automatically reinstated on receipt of all overdue amounts; and
(c) On completion of all services under this agreement, and on full payment of all invoices, the licence becomes irrevocable.
70. Any Public Information regarding work done by CADDS Group must attribute the design to CADDS Group accordingly, regardless of whether the Client’s Project is complete.
71. Public Information means any information containing a 2 or 3 dimensional representation of the Client’s Project, or a part of it published, exhibited or communicated to persons other than the Client or their representatives.
ELECTRONIC DATA TRANSFER
72. The Client agrees that:
(a) CADDS Group may issue data electronically to them and to others involved in the Client’s Project;
(b) We are not responsible for the accuracy, completeness or any contamination of electronically transmitted data; and
(c) The cost of electronic data preparation and file conversion is to be reimbursed by the Client as a disbursement and or at CADD’s Group’s hourly rate (to be determined by CADDS Group).
73. When a dispute arises between us, you agree to comply with our dispute resolution process. To this end a party with a complaint against the other is first required to notify the other of the dispute by giving written notice specifying the nature of the dispute, the outcome required and the action believed necessary under the circumstances that will assist both in settling the dispute.
74. Each party will then in good faith attempt to resolve the dispute by negotiation, and if the dispute in some aspect involves payment of money, the party withholding payment is required immediately upon receipt of the notice to deposit the disputed amount into an escrow account with instructions pertaining to the release of funds. Undisputed amounts must be paid immediately.
CADDS GROUP INSURANCE
75. CADDS Group carries the following insurances:
(a) Professional Indemnity Insurance
Berkley Insurance Australia 201407-0584 WRB: $10,000,000
(b) Public Liability
CADDS GROUP’S LIABILITY
76. Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or the Fair Trading Act in each of the States and Territories of Australia where we undertake the work, except to the extent permitted by those Acts where applicable.
77. Without limiting any other term in this document, where you are a consumer (as defined by the ACL) but the goods or services supplied by us to you are not of a kind ordinarily acquired for personal, domestic or household use or consumption, our liability under the consumer guarantees (as defined by the ACL) is limited, at our option, to one or more of the following:
(a) replacing or repairing the goods supplied to you;
(b) reimbursing you for the cost of replacing or repairing the goods supplied to you;
(c) re-supplying the services supplied to you again;
(d) reimbursing you the cost of having someone else supply the services we undertook for you.
78. In all other circumstances, and without limiting any other term in this document, to the full extent permitted by law, (including but not limited to the ACL, any relevant federal, state or local statute as amended from time to time and the common law), we will not be liable in any circumstances for any Loss (including consequential loss or damage including loss of profit) to you or any property or person whatsoever arising out of or connected with:
(a) these terms;
(b) the provision of the goods and services under this agreement;
(c) the delay in delivery of any goods or services by us,
(d) or a breach of this document by CADDS Group.
CHANGE OF DETAILS
79. The Client must provide CADDS Group with not less than 14 days’ prior written notice of any change of ownership or other changes to the Client’s details including but not limited to changes to the Client’s address, facsimile number, email or business practice. CADDS Group will not be liable for any loss that arises by the Client’s failure to comply with this term.
80. The Client indemnifies CADDS Group and any Group Entity and will keep CADDS Group indemnified and any Group Entity (on a full indemnity basis) against any loss, cost, expense or damage suffered or incurred by CADDS Group or and any Group Entity arising directly or indirectly from or related to the provision of the services specified agreement, including (but not limited to):
(a) any breach or non‑observance by the Client of any provision of this agreement;
(b) any breach of any law or statute by the Client; or
(c) any right or Claim by any person or organisation;
81. The parties may vary or add to the services or goods CADDS Group is required to perform or supply under this agreement, and the amount the client pays for those services or goods, provided CADDS Group agrees to the same in writing. If that occurs, the provision of these terms still bind the client.
82. Any other amendment to these terms other than those specified in the above clause must be in writing, agreed by the parties and signed by CADDS Group to be binding on CADDS Group. CADDS Group may solely, and its discretion, waive the operation of this clause in writing.
83. Subject to the above clause, this agreement expresses and incorporates the entire agreement between the parties and supersedes and excludes any prior or collateral negotiation, understanding, communication, representation or agreement by or between the parties or any Group Entity.
84. Nothing in this document makes ineffective, or reduces, any protection at law from liability which CADDS Group is entitled to in the state or territory of the applicable law.
85. Except as expressly stated in this document, each party must pay its own costs in relation to the negotiation, preparation, execution, performance, amendment or registration of, or any consent given or made.
86. This agreement is governed by and construed under the law of the State of Western Australia. Any legal action relating to this agreement must be brought in any court of competent jurisdiction in the State of Western Australia, and the parties irrevocably, generally and unconditionally submit to the exclusive jurisdiction of the courts of that State.
87. The parties must execute any document and perform any action necessary to give full effect to this agreement.
88. Any failure by the parties to exercise any right under this agreement in whole or in part does not operate as a waiver.
89. Any provision or part provision of this agreement which is invalid in any jurisdiction is invalid in that jurisdiction to that extent. It will not invalidate or affect the remaining provisions of this agreement or the validity of that provision in any other jurisdiction.
90. The Client must not transfer any right or liability under this agreement without the prior consent of CADDS Group, except where this agreement provides otherwise.
91. CADDS Group may assign its rights or liabilities under this agreement at its absolute discretion.
92. This agreement may be executed in any number of counterparts, all of which taken together are deemed to constitute the same agreement.
93. Any notice may be served by delivery in person, by post or by fax to the address or number of the recipient most recently notified by the recipient to the sender.
94. Any notice to or by a party under this document must be in writing and signed by either:
(a) the sender or, if a corporate party, an authorised officer of the sender; or
(b) the party’s solicitor.
95. The addresses for service for notices of the parties are the address specified above or any address a party advises the other in writing from time to time.
96. The terms specified in the Special Conditions apply to this Agreement. In the event that there is any inconsistency between the terms in this Part 3 and the terms of the Special Conditions, the Special Conditions take priority.
DEFINITIONS & INTERPRETATION
97. In this document, unless the context requires otherwise:
(a) “ACL” means The Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(b) Claim means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise);
(c) Client means the entity specified in item 1 of Part 1.
(d) Client’s Project means the project of the Client specified in item 2 of Part 1 in which the Client engages CADDS Group to provide services in respect to.
(e) Deposit means the deposit payable to CADDS as specified in item 4(a) of part 1.
(f) Design means designs, plans, concepts, drawings and documents provided under this agreement.
(g) Disbursements means the disbursements and corresponding costs as specified in item 4(d) of Part 1 and if no cost is specified for a corresponding disbursement item, then the cost that item is charged to CADDS Group plus a mark-up of 10%, or the time it takes CADDS Group to attend to that Disbursement charged at CADDS Group’s Hourly Rate, as determined by CADDS Group.
(h) Exclusions means the matters specified in item 3(d) of Part 1.
(i) Group Entity means CADDS Group and each of its Related Bodies Corporate; any entity that is connected with CADDS Group by a common interest in an economic enterprise.
(j) GST means any tax, levy, charge or impost implemented under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) (GST Act) or an Act of the Parliament of the Commonwealth of Australia substantially in the form of, or which has a similar effect to, the GST Act;
(k) Hourly Rate(s) or similar expression means the hourly rates as specified in item 4(c) of Part 1.
(l) Loss means all losses including financial losses, damages, legal costs and other expenses of any nature;
(m) Site means the place that the Project is occurring as detailed in item 2(d) of part 1.
(n) Special Conditions means the further terms specified in item 5 of part 1.
(o) Stages means the stages specified in item 4(b) of part 1.
(p) subsequent drawings means the drawings that CADDS Group performs under this agreement after the conceptual drawings are initially approved by the client.
(q) we, us or our means a reference to CADDS Group.
(r) you, your or yourself means a reference to the Client.
98. In this document, unless the context requires otherwise:
(a) headings are for reference purposes only, except when there is an express reference to Parts 1, 2 and 3 and the corresponding items under those parts as mentioned in this document;
(b) the singular includes the plural and vice versa;
(c) words denoting any gender include all genders;
(d) a reference to a person includes any other entity recognised by law and vice versa;
(e) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(f) any reference to a party to this document includes its successors and permitted assigns;
(g) any reference to any agreement or document includes that agreement or document as amended at any time;
(h) the use of the word includes or including is not to be taken as limiting the meaning of the words preceding it;
(i) the expression at any time includes reference to past, present and future time and performing any action from time to time;
(j) an agreement, representation or warranty by two or more persons binds them jointly and severally and is for the benefit of them jointly and severally;
(k) a reference to an exhibit, annexure, attachment or schedule is a reference to the corresponding exhibit, annexure, attachment or schedule in this document;
(l) a reference to a statute includes all regulations and amendments to that statute and any statute passed in substitution for that statute or incorporating any of its provisions to the extent that they are incorporated;
(m) a provision of this document must not be construed to CADDS Group’s disadvantage merely because it was responsible for the preparation of this document or the inclusion of any term in this document;
(n) to avoid doubt, and without limitation, the term “in writing” or such similar term includes by email; and
(o) unless expressly stated otherwise, a reference to dollars or $ is to an amount in Australian currency.