Services agreement

BACKGROUND

• Buildings Evolved is a building controls consultant specialising in building simulations and energy modelling.
• The Client requires the services of Buildings Evolved.
• Buildings Evolved has agreed to provide those services on the terms set out in this Agreement.

OPERATIVE PART

1. ENGAGEMENT AND TERM

• This Agreement includes the terms and conditions contained in this document and incorporates by reference the scope of services, pricing and other details of our proposed engagement as outlined in the reference schedule (“Reference Schedule”).
• The offer contained in this Agreement is open for acceptance for 7 days from the date of issue.
• This Agreement commences on acceptance, which occurs when Buildings Evolved receives:
  • a copy of this Agreement signed on behalf of the Client; and
  • the Deposit as specified in the Reference Schedule.
• The term of our engagement will be from the date of acceptance of this Agreement until the obligations of each party to this Agreement have been extinguished, unless terminated earlier in accordance with the terms of this Agreement.
• The Client engages Buildings Evolved to perform the Services described in Item 1 of the Reference Schedule.

2. SCOPE OF SERVICES

• We will provide the Services to you in accordance with the Scope of the engagement, which is set out in detail in Item 2 of the Reference Schedule.
• Any modifications to or expansions of the scope requested by you will only be effective if agreed in writing and signed on behalf of both parties.

3. FEES AND EXPENSES

• You agree to pay us the fees set out in the Reference Schedule for the Services.
• Our Fees are exclusive of GST, unless otherwise advised.
• All expenses are factored into our Fees, except for any expenses related to travel, printing costs or other unforeseen expenses, which you agree to pay for as set out in the Reference Schedule.
• If expenses as anticipated by Item 5 of the Reference Schedule exceed $50, we will notify you of such additional amount (“Additional Amount”) due and obtain your consent prior to charging that Additional Amount to your monthly invoice.
• If you do not provide your consent as requested by us within a reasonable time, we will issue an invoice to you for the Additional Amount, which must be paid immediately on receipt.

4. PAYMENT TERMS

• Unless otherwise agreed in writing, our Fees are payable as provided in the Reference Schedule.
• We may, in our absolute discretion, request a deposit payment. If we require a deposit, we will set out the amount and due date in our Reference Schedule.
• We will invoice you in accordance with this clause, unless otherwise agreed.
• You must pay the Deposit specified in the Reference Schedule to secure the Services. We will not be obliged to deliver the Services or do anything in relation to the Services unless or until we receive your acceptance of this Agreement and the Deposit in cleared funds.
• Payment is to be made by one of the methods provided in Item 7 of the Reference Schedule.
• If you fail to pay any Fees, Expenses or Additional Amounts in accordance with this Agreement and any amount remains overdue after 30 days from the due date, we reserve the right to:
  • charge interest at the rate of 8% per annum on all outstanding amounts, with interest to accrue daily until the outstanding amounts are paid in full; and/or
  • suspend or cancel our Services to you; and/or
  • refer the matter to a debt collection agency or solicitor and you will be liable to pay any costs we incur or become liable to pay for the collection of such unpaid amounts, including but not limited to debt collection fees, charges and commissions and legal fees and costs on a full indemnity basis.

5. CLIENT RESPONSIBILITIES, WARRANTY AND INDEMNITY

• You must:
  • nominate in writing an authorised representative to provide us with instructions for the purposes of the engagement, whose actions will be binding on you;
  • provide us with comprehensive information relating to the Services;
  • arrange for our representatives to be given reasonable access to a physical or virtual location where appropriate;
  • provide us with clear and timely instructions regarding the Services required by you to be performed by us;
  • provide us with a budget so that we can deliver the Services in line with your financial expectations;
  • work collaboratively with us, including by providing all relevant information in a timely manner;
  • ensure that Buildings Evolved is the sole and exclusive building controls consultant working on your project for the duration of the engagement, unless otherwise agreed; and
  • arrange for payment of all our Fees, Expenses and Additional Amounts without deduction or set-off in a timely manner and in accordance with the terms of this Agreement.
• Please note that any delays in you complying with the above will hinder our ability to start or progress our Services and may impact on our ability to meet any agreed deadlines. Please note that we will not be liable for any such delays, including delays in performing the Services while any invoice is outstanding.
• If any of the items listed in this clause are not provided by you to us within a reasonable time after the commencement of the engagement, we may, in our sole discretion, elect to terminate the engagement. Should we elect to terminate the engagement, we will immediately return any information, materials, designs, data, documents, access details and the like to you and you will be liable to pay our Fees and Expenses in accordance with the terms of this Agreement.
• You warrant that:
  • all materials provided to us are complete and accurate; and
  • you have full right and title (including all Intellectual Property Rights) to all such artwork, information, designs, data, documents and the like including elements of text, graphics, photos, designs, logos, trademarks, or other materials or text provided to us or that you have received written permission from the rightful owner(s) to facilitate the intended use; and
  • none of the materials, text or information and the like provided to us by you is defamatory in nature or unlawful in any way; and
  • the signatory to this Agreement on behalf of the Client has full legal capacity and power to enter into this Agreement and perform the Client’s obligations under this Agreement, to carry out the transactions contemplated by this Agreement, and to own property and assets or if the Client is a company, the signatory has the power to enter into and perform obligations under this Agreement and to carry out the transactions contemplated by this Agreement.
• We will not be liable for any delay, loss or damage due to any failure by you to comply with this clause.
• To the maximum extent permitted by law, you indemnify us on a continuing basis in respect of any breach of the warranties set out in this clause and any breach of any other person’s Intellectual Property Rights or other rights arising out of the engagement.

6. WORKS STANDARD AND NO WARRANTIES

• We will deliver the Services in a professional manner, in good faith, with all requisite care and skill. However, we cannot make any warranty or guarantee as to your satisfaction with the ultimate service delivery. You warrant that you have not relied on any warranty, guarantee or representation given by us in entering into this Agreement.
• We shall not be liable to indemnify the Client or other parties in respect of any claim, liability, loss, cost, expense, fine or penalty directly or indirectly arising out of, related to, or in connection with:
  • the giving of any express or implied warranty or guarantee, making a representation, failing to give an appropriate warning or engaging in misleading and deceptive conduct relating to the financial return (including, without limitation, any actual, historical, anticipated, forecast or projected financial return) of any investment or portfolio of investments.
  • the giving of any express or implied warranty or guarantee, making a representation, failing to give an appropriate warning or engaging in misleading and deceptive conduct relating to the financial circumstances or situation (including, without limitation, any actual, historical, anticipated, forecast or projected financial return) of any entity.
  • To the extent that any parts of the above endorsement are found to be invalid or unenforceable, the remainder of each part of the endorsement shall remain in full force and effect.
  • Subject always to all other policy terms, conditions and exclusions which remain unaltered.
• We shall not be liable to indemnify the Client in respect of any claim, liability, loss, cost, expense, fine or penalty directly or indirectly arising out of, related to, or in connection with Financial services or financial outcomes relating to recommendation of power related hardware and utilities.
• Other than any warranties or guarantees which you may be entitled to pursuant to the Australian Consumer Law or any other law, all other warranties and guarantees in relation to the Services are specifically excluded and any term or condition which would otherwise be implied into this Agreement is excluded.

7. NON-DISPARAGEMENT

• You acknowledge that Buildings Evolved has established a valuable reputation and goodwill in Australia in the area of building controls consultancy. Subject to law and your rights in connection with the enforcement of this Agreement, you may not at any time:
  • disparage, permit or authorise the disparagement of Buildings Evolved, any of its related entities or any director, officer, employee, agent, consultant or adviser of Buildings Evolved or of its related entities; or
  • otherwise make, permit or authorise the making of any statement in anyway relating to or connected with any matters in dispute which is calculated or is reasonably likely to cause damage to Buildings Evolved, any of its related entities or any director, officer, employee, agent, consultant or adviser of Buildings Evolved or its related entities (including damage to their respective reputations).
• This clause survives termination of this Agreement.

8. PROMOTION

• Subject to compliance with the confidentiality provisions of this Agreement, you consent to us using your name, likeness, and photos of the Services to promote our business.
• You agree that any such use of your Intellectual Property will not infringe any of your Intellectual Property Rights. Such promotion may include (but is not limited to) publishing photographs regarding the Services on our website, social media pages, brochures and other marketing material (whether digital or print).

9. CONFIDENTIALITY

• The parties recognise that it may be necessary during the engagement to reveal Confidential Information to each other. Each party agrees that they will not disclose, divulge, reveal, report or use, for any purpose, any Confidential Information which they have obtained, except as authorised by the other party or as required by law and will undertake reasonable commercial measures to maintain the confidential nature of the Confidential Information, including the signing of reasonable non-disclosure agreements by personnel of either party on request.
• This clause survives termination of this Agreement.

10. INTELLECTUAL PROPERTY

• All Intellectual Property created by us in the course of this engagement will be the exclusive and sole property of Buildings Evolved, together with any derivatives of the Intellectual Property.
• You are expressly prohibited from providing copies of any materials provided by us to you to any other competitive business for execution and understand and agree that such an action would amount to a breach of our Intellectual Property Rights, entitling us to take immediate action against you to enforce our rights.

11. LIMITATION OF LIABILITY AND INDEMNITY

• Nothing in this Agreement is intended to exclude any right or guarantee to which you are entitled under the Australian Consumer Law.
• Where the Services fall within the scope of the Australian Consumer Law, our liability to you is limited to the fullest extent permissible by law, including by limiting liability under section 64A of the Australian Consumer Law to (at our option) providing the Services again or the cost of providing the Services again. We specifically exclude liability for negligence. To the maximum extent permissible by law, we exclude liability for consequential loss or damage, including loss of business profits or reputational damage.
• Where the Services do not fall within the scope of the Australian Consumer Law, we exclude all liability to you (including for negligence and consequential loss or damage, including loss of business profits or reputational damage) however arising.
• To the maximum extent permitted by law, you indemnify us on a continuing basis in respect of any liability for loss or damage (including consequential loss) arising from our use of any structures provided by you.

12. TERMINATION

• We may terminate this Agreement immediately on written notice to you if:
  • you engage in conduct which we reasonably consider to be illegal, immoral, unfair, abusive, harassing, obstructive or deceptive, or which may otherwise jeopardise our name, reputation or business;
  • immediately if a provision of this Agreement entitles us to elect to so terminate this Agreement.
• Either party may terminate this Agreement:
  • on expiry of notice given, if the other party breaches a term of this Agreement and fails to remedy the breach within 14 days after having received notice in writing of the breach; or
  • immediately on written notice to the other party, if an Insolvency Event occurs in relation to a party.
• If termination is disputed, it will be dealt with in accordance with the dispute resolution provisions of this Agreement.

13. CONSEQUENCES OF TERMINATION

• If this Agreement is terminated, all rights and obligations accrued up to the date of the termination (including, in particular, your obligation to pay Fees and Expenses) are not affected, unless otherwise set out in this clause.
• If this Agreement is terminated,
  • you must immediately return to us all hard and soft copies of any materials provided to you by us and any other Work provided to you by us over the course of the engagement; and
  • if you have terminated this Agreement pursuant to clause 12, you agree:
    • that we will retain the Deposit;
    • that you will be liable to pay us on demand any further amounts representing proportionate work actually completed by us prior to termination, in excess of %; and
    • that we will retain all Intellectual Property in all Works and will not be obliged to provide you with copies of any documents created in the course of the engagement.
• This clause and any other clause which by its nature is intended to survive termination, will survive termination of this Agreement.

14. REFUNDS AND CREDIT

• No refunds will be provided to you other than in accordance with our obligations under Australian Consumer Law.
• In our absolute discretion, we may agree to grant you credit for the amount of Fees paid under this Agreement.
• If we do so, the grant of credit is subject to the terms of this Agreement and applicable legislation. To the extent of any inconsistency, the terms provided for in applicable legislation prevail where we are not permitted to vary the terms by agreement. Where legislation provides that we may vary the terms by agreement, the terms of this Agreement prevail.
• Credit must be redeemed within 12 months from the date of issue and will expire after this date. It will then be unable to be redeemed, replaced or refunded.
• Credit is non-transferable and is not redeemable for cash under any circumstances, including any partial balance remaining after redemption.

15. DISPUTE RESOLUTION

• If a dispute arises between the parties, the party claiming the dispute must not commence any court or arbitration proceedings (except where they seek urgent interlocutory relief), unless they have first complied with this clause.
• The party claiming the dispute must first inform the other party in writing of the following:
  • the nature of the dispute;
  • the outcome they desire to resolve the dispute, and
  • the action they believe will settle the dispute.
• On receipt of the notice by the other party, both parties will make every effort to resolve the dispute by mutual negotiation within 20 Business Days.
• If the parties are unable to resolve the dispute in that time, the parties must agree on selection of a mediator (if the parties are unable to agree, they agree to request that the President of the Law Society of New South Wales appoint a mediator) and will be equally liable for the fees and reasonable expenses of the mediator and the cost of the venue of the mediation (to be paid in advance). The parties must each pay their own costs associated with the mediation, which must be held in Sydney, Australia unless otherwise agreed in writing.
• All communications made by the parties arising out of this dispute resolution clause are confidential and to the maximum extent possible, must be treated as “without prejudice” negotiations for the purpose of applicable laws of evidence.
• This clause survives termination of this Agreement.

16. GENERAL

The following additional terms and conditions apply to this Agreement:

• This Agreement may be executed in any number of counterparts, each of which when executed and delivered will constitute a duplicate original, but all the counterparts will together constitute the one agreement.
• Each party must do anything necessary or desirable (including executing any relevant agreements) to give full effect to this Agreement and the transactions contemplated by it.
• Time is of the essence in this Agreement. No extension or variation of this Agreement will operate as a waiver of this provision.
• We may assign or otherwise transfer our obligations under this Agreement on notice to you. You must not assign, transfer, charge, encumber or otherwise deal with any of your rights or obligations under this Agreement, or attempt or purport to do so, without our prior written consent.
• We may sub-contract one or more aspects of the Services, provided always that Buildings Evolved will remain the head contractor and will be responsible for the delivery of Services in accordance with this Agreement.
• The parties acknowledge that this Agreement is intended as an agreement for the provision of services and creates the relationship of principal and contractor and not any other relationship and, in particular, not the relationship of employer and employee, principal and agent or the relationship of partnership.
• This Agreement is the entire agreement and understanding between the parties on everything connected with the subject matter of this Agreement, and supersedes any prior understanding, arrangement, representation or agreements between the parties as to the subject matter contained in this Agreement.
• If anything in this Agreement is unenforceable, illegal or void, it is severed, and the rest of the Agreement remains in force.
• Any waiver by any party to a breach of this Agreement will not be deemed to be a waiver of a subsequent breach of the same or of a different kind.
• Neither party will be liable to the other party for any loss caused by any failure to observe the terms and conditions of this Agreement, where such failure is occasioned by causes beyond its reasonable control including, but not limited to, by fire, flood, other extreme weather event or natural disaster, riot, strike, act of war, terrorist attack, nuclear event, pandemic, epidemic, widespread contagion, quarantine restriction, critical infrastructure failure, severe disruption to virtual infrastructure, restriction or prohibition or any other action by any government or semi government authority, or major injury or illness of key personnel.
• Any amendment or variation to this Agreement (such as a change to the Services to be provided) is not effective unless it is agreed in writing by both parties (including via email), unless otherwise set out in this Agreement.
• The law of New South Wales governs this Agreement and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.
• A notice required to be given to a party under this Agreement must be in writing and delivered to that party in one of the following ways:
• delivered personally;
• posted to their address, when it will be treated as having been received on the second Business Day after posting; or
• sent by email to their last-notified email address, when it will be treated as received when it enters the recipient’s information system or otherwise when the recipient confirms receipt, whichever occurs first.

18. INTERPRETATION

• References to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
• Words denoting the singular include the plural and vice versa, words denoting individuals or persons include bodies corporate and vice versa, references to documents or agreements also mean those documents or agreements as changed, novated or replaced, and words denoting one gender include all genders;
• Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement;
• Grammatical forms of defined words or phrases have corresponding meanings;
• Parties must perform their obligations on the dates and times fixed by reference to Sydney, Australia;
• Reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
• If the day on or by which anything is to be done is a Saturday, a Sunday or a public holiday in the place in which it is to be done, then it must be done on the next Business Day;
• References to a party are intended to bind their executors, administrators and permitted transferees; and
• Obligations under this Agreement affecting more than one party bind them jointly and each of them severally.