​1.    Services


1.1.    We will provide the Services to you at the Site in accordance with this Agreement.
1.2.    We may provide the Services by using one or more:
1.2.1.    of our employees; or 
1.2.2.    subcontractors which, in our reasonable opinion, is capable of delivering the Services.
1.3.    We may substitute these personnel with other personnel from time to time by giving you notice of such substitution. Any substitute will have a similar level of experience to the personnel for which they replace.
1.4.    Any employee or subcontractor we supply to you to carry out the Services will endeavour to comply with your reasonable directions relating to health and safety rules at one of your properties subject to the terms and conditions of this Agreement and the law.

1.5    Any requirement of  interstate / overseas travel for  employee  during contract term.  Design Brains will provide all travel arrangements and travel  insurance cover for the employee or contractor. Design Brains does not accept travel arrangements made or provided by third parties.  Reimbursement of all travel expenses is required  within 30 days after invoice. Maximum travel duration for an employee of Design Brains is 3 months. 


2.    Fees


2.1.    The Fees are payable in accordance with the Letter without setoff or deduction.
2.2.    Late payment of Fees may attract interest. If we choose to charge interest on such overdue amounts, it will be calculated at 3% above the cash rate target announced by the Reserve Bank of Australia from time to time.  Interest accrues and is recoverable day to day. 
2.3.    Amounts payable for any taxable supply in connection with the Fees excludes GST and must be increased by the rate of GST imposed by law. ‘GST’ has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

2.4  Contract payment terms for ongoing client onsite work is 14 calendar days payment, from invoice date. Late Payment Fees do not apply for bi monthly payment schedule. if the client requires the engineer to be offsite at other locations, including overseas during the contract term, the same 14 day payment schedule applies. 


3.    Defects


3.1.    Please notify us in writing of any Fault relating to Services rendered within five days of us providing such Services. If you do not notify us in this way, we will not be responsible for any loss or damage arising out of or resulting from such Fault.
3.2.    If you give us the required notification then we may, if such notice is reasonable, do one of the following (this choice being at our discretion):
3.2.1.    resupply the Services; or
3.2.2.    pay any third party to carry out those Services.


4.    Warranties, exclusions, releases and indemnities


4.1.    You warrant that:
4.1.1.    if you supply us with Supplied Software, such a supply will not be in breach of any licence granted by the owner of that software;
4.1.2.    if, under this Agreement, we supply Services at a Site controlled wholly or in part by you, that you will:
A.    allow us access to that Site during the times you have requested we provide our Services;
B.    remain responsible for the Site’s ongoing security and maintain a safe place and system of work;
C.    provide us with any health and safety policy, or any other relevant policy, that any of our employees or subcontractors must follow;
D.    have public liability insurance for the duration of this Agreement for a reasonable amount; and
E.    have professional indemnity insurance for the duration of this Agreement for a reasonable amount;
4.1.3.    you will be responsible for the direct and indirect consequences (including any Claims) of any direction you give us, or any of our employees or subcontractors in relation to carrying out Services; and
4.1.4.    you will tell us which versions of software you are using before we begin carrying out any Services.
4.2.    If we have outlined or given a time frame for milestone completions of our Services, that time frame is an estimate only, and we will not be responsible for any loss you suffer if it takes a longer or shorter time to complete our Services.
4.3.    Unless the Letter states that you have engaged our Services to provide design services for which we take responsibility (‘Design Services’) we will not be designing the system to be created from any design drawings we prepare and we make no warranty (express or implied) that the system to be created from any designs we draft will be:


4.3.1.    fit for its intended purpose or use; or
4.3.2.    safe or otherwise defect free in design.
4.4.    You release us from any Claim that is not caused wholly and directly by us.

 

4.5.    In addition to any Fees payable by you, you indemnify us and must keep us indemnified from and against all Claims for which we will or may become liable for as a result of:
4.5.1.    Our use of any of the Supplied Software that you make available to us, our employees or subcontractors to enable us to supply the Services;
4.5.2.    any physical or mental injury to or death of, a natural person and any loss of or damage to, any property, real or personal caused directly or indirectly by any:
A.    act or omission by you, your employees, or your contractors; or
B.    goods, products or processes prepared or undertaken on the basis of any drawing created as a result (in part or in whole) from rendering our Services;
4.5.3.    unless the Letter states that you have engaged our Services to provide Design Services, goods, products and processes undertaken on the basis of any drawing created in whole or in part as a result of us rendering our Services not being able to be used as initially intended, being dangerous or otherwise unsafe, or unable to be used for the purpose for which it was created;
4.5.4.    a default by you under this Agreement including, if we terminate, the loss to you of the benefit of us performing our obligations hereunder; 
4.5.5.    any breach of this Agreement that was not caused wholly and directly by us; and
4.5.6.    any injury, damage or loss we or our employees or subcontractors sustain while they are on a Site under your direction or control, caused by anyone.
4.6.    Notwithstanding any other clause of this Agreement, our liability in respect of any successful Claim made against us by you is limited to the amount we have received in Fees from you under this Agreement. 


5.    Intellectual Property


5.1.    Each party will not infringe Intellectual Property Rights of any third party.
5.2.    Subject to clause 5.3, we will retain ownership of all:
5.2.1.    Intellectual Property resulting from supplied Services;
5.2.2.    improvements in existing Intellectual Property owned by you resulting from our supply of Services; and
5.2.3.    all other Intellectual Property of a general nature developed by us as a result of performing our obligations under this Agreement.
5.3.    We will assign to you any and all retained Intellectual Property (except any software and Know-How relating to the supply of Services) resulting from the supply of Services if you pay us any and all amounts owing by you to us under this Agreement (including the Fees) and any amounts owing under any other agreement we have with you.
5.4.    You must not misuse, disclose or make known to anyone any of our Confidential Information. You agree to procure each of your employees and contractors to do the same.
5.5.    Each party will use Supplied Software for the sole purpose of fulfilling each other’s role under this Agreement.
5.6.    Each party will remove Supplied Software from their systems upon termination of this Agreement.


6.    Termination
6.1.    A party may terminate this Agreement by notice if an Insolvency Event occurs in relation to the other party.
6.2.    Without limiting any other rights we have under this Agreement, we may terminate it immediately if:
6.2.1.    you have breached a term of this Agreement; or
6.2.2.    an event beyond our control causes us to be unable to supply the requisite amount of personnel (employees or subcontractors) to carry out the Services.


7.    Relationship
This Agreement does not create a relationship of principal and agent, employer and employee, partnership or joint venture between you and us, or you and our personnel (employee or subcontractor).


8.    Amendments


8.1.    The terms of this Agreement can only be amended if we consent to such amendment. 
8.2.    Amendments must be in writing and refer to this clause.


9.    Assignment

​9.1.    Your rights and obligations under this Agreement are personal and cannot be assigned, charged or otherwise dealt with, without our written consent.
9.2.    We may, without the need for consent from you, assign or novate in whole or in part any rights and obligations arising under or pursuant to this Agreement.


10.    Severance and interpretation


10.1.    Clauses will be read down to any extent necessary to be valid.  If that is not possible, they must be severed.  All other clauses are unaffected.
10.2.    Clauses must not be construed to the disadvantage of a party because that party was responsible for including that clause and/or that clause benefits that party.


11.    Parties


11.1.    If you are acting as trustee of a trust, then this Agreement applies to you individually and in your capacity as trustee of each trust for which you are trustee.
11.2.    We enter into this Agreement as trustee only and not in our personal capacity. Any claim by you against us will be limited to the assets we hold on this trust.


12.    Entire Agreement


This Agreement records the entire contract between the parties as to its subject matter.  Subject to its express terms:
12.1.    only terms that must be implied by law are implied in this Agreement, and for any representation given and not expressed in this Agreement, that representation is withdrawn, is not relied upon by any person, and the parties release each other from claims connected with it.
12.2.    as to any prior or collateral contract, this Agreement supersedes that prior or collateral contract, and, the parties release each other from all claims arising from any prior or collateral contract.


13.    Precedence


If there is any inconsistency between the Letter and the Terms, the Letter will prevail to the extent of that inconsistency.


14.    Dictionary


14.1.    ‘Agreement’ means this Proposal, once it has been accepted by you (whether you have signed the Proposal, you give us instructions to begin providing the Services or a purchase order in relation to such supply is received by us from you);
14.2.    ‘Claim’ means all claims, actions, or notices for losses, damages, costs and expenses made by you, or any third party at law or otherwise against us;
14.3.    ‘Confidential Information’ means information coming to a party by virtue of being party to the Terms, except so far as it:
14.3.1.    is in the public domain; or 

14.3.2.    relates to registration of a Security Interest,
but other than as a result of a breach by the party;
14.4.    ‘Fault’ means inaccuracies, short supply, fault, damage or defect but does not include delivery of Services or a design resulting from such provision that is supplied using a version of software that is not compatible with your software if you have failed to notify us of which version of software you use;
14.5.    ‘Fees’ means the fees payable in accordance with the schedule of rates or fixed fee specified in the Letter and otherwise in accordance with these Terms as updated or amended by us from time to time;
14.6.    ‘Letter’ means the letter attaching these Terms;
14.7.    ‘Insolvency Event’ means an event which, in our opinion, makes it unlikely that you will pay us any Fees and includes, without limitation: you being unable to pay your debts as and when they fall due, if you are a corporation, you taking steps to be deregistered, you appointing an administrator, receiver or liquidator, you obtaining protection from creditors under any applicable law and anything analogous or having a substantially similar effect to any of these events;
14.8.    ‘Intellectual Property’ means all Intellectual Property Rights and Know-How;
14.9.    ‘Intellectual Property Rights’ means patents, trademarks, registered designs, applications for any of them, copyright, design rights and analogous rights, trade and business names, rights in Confidential Information howsoever arising and wheresoever situated and any right or interest in any of the foregoing;
14.10.    ‘Know-How’ means inventions, discoveries, improvements, processes, formulae, recipes, techniques, designs, specifications, drawings, technical information, methods, test reports, component lists, manuals, instructions, catalogues and information relating to Intellectual Property Rights;
14.11.    ‘Proposal’ means the Terms and the Letter;
14.12.    ‘Services’ means the services specified in the Letter, but in any event is limited to drafting designs at your direction;
14.13.    ‘Site’ means the location specified in the Proposal, or such other locations as are agreed between the parties;
14.14.    ‘Supplied Software’ is software that one party has acquired and allowed the other party to use;
14.15.    ‘Terms’ means these standard terms and conditions;
14.16.    ‘we’, ‘us’, and ‘our’, means Design Brains Pty Ltd 
14.17.    ‘you’ and ‘your’ means the party named in the Letter which is acquiring our Services and any of its related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth))
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