Stark Builders Terms & Conditions
These terms and condition (Terms) apply to all Services that Stark Builders provides to or which are accepted by any person (Client). The Client is deemed to have read, understood and accepted these Terms if at any time the Client requests or accepts any Services or pays any deposit or any other monies in relation to Services.
1. Definitions and Interpretations
1.1 Definitions
In these Terms, unless the context indicates a contrary intention:
Approval Requirements has the meaning given in clause 9(a);
Building Quote Service includes the preparation or revision of any documentation and/or any provision of an independent bill of quantities for any project;
Consequential Loss includes special, indirect, consequential, incidental or punitive damages or damages for loss of expected savings, loss of use, loss of opportunity, loss of profit, loss of revenue, increased financing costs, loss arising from delay and whether or not the possibility or potential extent of the loss or damage was known or foreseeable, and whether arising from a claim under indemnity, contract, tort (including negligence) in equity, statute or otherwise;
Client means the person who engages and/or receives the Services of Stark Builders;
Client Engagement Service Fee means the fee that Stark Builders charges the Partner Builder or Consultant for the “Client Engagement Service”;
Design means such design or designs that the Stark Builders has agreed to provide to the Client as part of the Services;
Design Amendments has the meaning given in clause 4(a);
Designer means any designer sub-contracted by Stark Builders by any subcontract agreement or arrangement;
Due Date has the meaning given in clause 2(b);
Force Majeure includes strike, lockout, riot, industrial action, fire, storm, tempest, act of God, material shortage, government law or regulation or requirement or any other cause beyond the control of the Supplier;
GST means Goods and Services Tax as defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Insolvency Event means:
(a) to any person being a corporation:
(i) the entry into liquidation or provisional liquidation or an application being made for it to be wound up;
(ii) having a receiver, manager, receiver and manager, administrator, controller (as defined in section 9 of the Corporations Act 2001 (Cth) or similar officer appointed to it or any of its assets;
(iii) making an assignment for the benefit of or entering into an arrangement or composition with its creditors; or
(iv) being insolvent or presumed insolvent under the Corporations Act 2001 (Cth) or stopping payment of any of its debts;
(b) to any person:
(i) anything occurring under the law of any applicable jurisdiction to the person (other than under the Bankruptcy Act 1966 (Cth)) having a substantially similar effect to the events specified in subparagraph (a), above;
(ii) a judgment for an amount equal to not less than $50,000 which is not satisfied, compromised to the satisfaction of the judgment creditor or stayed within 7 days of its entry; or
(iii) a bankruptcy notice being served on the person and not satisfied, compromised with the creditor or stayed within 13 days after the notice is served;
Intellectual Property means all present and future rights conferred under statute, common law or equity in relation to intentions (including patents), registered and unregistered trademarks, registered and unregistered designs, look and feel, circuit layouts and all other rights resulting from intellectual activity in, but not limited to, the industrial, scientific, literary or artistic fields;
Loss means any expense, cost, loss or damage of any kind and includes Consequential Loss and/or any fine or penalty imposed by a statutory or other authority;
Preliminary Building Cost Estimation Service means the service in which the Client engages Stark Builders to receive Preliminary Building Cost Estimates from a third party builder arranged by Stark Builders;
Self-Promotion use of designs, documentation, reports and images for websites, social media, awards, brochures, business cards or potential sales to third parties.
Services any services provided or procured by Stark Builders in relation to the Client’s project or otherwise performed in connection with any request of the Client.
Stark Builders means the Building company that the Client engages with.
Terms means all terms in this document.
1.2 Interpretation
In these Terms:
(a) headings are for convenience only and do not affect interpretation;
(b) 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;
(c) references to any party, person or entity as the case requires includes their executors, administrators, permitted assigns and successors;
(d) references to legislation or provisions of legislation include changes or re-enactments of the legislation and statutory instruments and regulations issued under the legislation;
(e) references to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia;
(f) obligations under these Terms affecting more than one party bind them jointly and each of them severally; and
(g) no rule of construction will apply to the disadvantage of one party on the basis that that party put forward or drafted these Terms or any part of these Terms.
2. Payment Terms
(a) Stark Builders will issue, at times determined by Stark Builders in its sole discretion, tax invoices to the Client for fees for Services supplied to the Client and all fees, charges and moneys otherwise due and payable to Stark Builders from time to time.
(b) The Client agrees that it must pay, without any deduction or setoff, the full amount of any tax invoice issued by Stark Builders within the period stipulated for payment or if there is no stipulation, within 7 days from the date on which the tax invoice is generated by Stark Builders (Due Date).
(c) If the provision of Services to the Client end prior to completion of all Services or any part thereof for any reason, including but not limited to termination of the Services by the Client or Stark Builders, the Client will be sent an invoice and be liable to pay for all Services already provided but not yet paid for.
(d) If, for any reason, the Client delays any aspect of the Services for more than 14 days, an invoice will be issued on the 15th day for payment for such of the Services as have been provided so far.
(e) If the Client opts to cancel their contract with Stark Builders and do not require further services, the Client is responsible to pay for work completed to date as determined fair and reasonable by Stark Builders.
(f) If the Client opts to cancel their contract with Stark Builders at the start of their project, directly after a deposit has been paid, Stark Builders will refund to the client the deposit, less $300 + GST administration fee. If the deposit is less than $300 + GST, then the full deposit will be withheld to cover administration costs. The refund will be paid by Stark Builders into the nominated bank account provided by the client in the next pay cycle and may take up to 30 days.
(g) Stark Builders will not release or submit any drawings (including copyright) until the Client has paid for works completed to date in full.
(h) Stark Builders will release copyright of the design and documentation to the Client once they have paid for works complete to date in full.
3. Overdue Amounts
(a) Interest at the rate of 5% above the Reserve Bank of Australia cash rate must be paid by the Client on any amount not paid by the Due Date. The interest will be calculated daily and compounded monthly but in no circumstances will the interest charged exceed 25% per annum.
(b) The Client agrees to pay on a full indemnity basis all costs and expenses (including, but not limited to, legal costs, administrative costs, commissions paid to any commercial or mercantile agent and any dishonour fees), incurred by Stark Builders in connection with the recovery of overdue amounts and/or the enforcement of any of these Terms or any attempt by or on behalf of Stark Builders to do either or both of those things. All such amounts are deemed a debt incurred by the Client to Stark Builders and must be paid within 7 days after the receipt of an invoice for those amounts from Stark Builders.
4. Rounds of Design
(a) Unless otherwise stated in writing, if Stark Builders has agreed to provide preliminary design services as part of the Services, the Services shall include, subject to clause 4(b), two (2) rounds of amendments to the design the subject of the preliminary design services by Stark Builders (Design Amendments).
(b) The Design Amendments contemplated by clause 4(a) are limited to design adjustments and implementation of feedback of minor nature and magnitude and must not exceed a total of 20% of the total preliminary design fee. The Design Amendments do not include:
(i) anything that Stark Builders, in its absolute discretion, considers substantial changes or re-designing of any design or any change or departure from the relevant scope of Services; and/or
(ii) any attendance at any site or place by Stark Builders or any of its employees or agents unless otherwise agreed in writing.
(c) Any changes to any Design (including changes by or initiated by the Client) after the Design Amendments have been finalised will incur additional charges at the rate(s) ordinarily charged by Stark Builders.
(d) If the Client provides Stark Builders with Preliminary Design or DA drawings in the context of a Preliminary Design Review Service, no site visit will be included or required.
5. Intellectual Property
(a) The parties acknowledge and agree that all existing and future Intellectual Property related to, or arising from, the whole or part of any Services will vest in Stark Builders.
(b) Stark Builders grants to the Client a non-exclusive licence to use such Intellectual Property arising from Services provided to the Client to such extent and for such time as is necessary for use of the Services by the Client for their obvious and manifest purpose (IP Licence).
(c) No transfer or sub-licence of the IP Licence is permitted without the written consent of Stark Builders which consent shall not be unreasonably withheld.
(d) The Client warrants to Stark Builders that it owns, absolutely, the Intellectual Property in relation to any designs, drawings, plans, know-how or other documents or information provided by the Client to Stark Builders (including its partners, contractors, employees and agents) in the course of, or for the purpose of, Stark Builders procuring or providing the Services.
(e) The Client indemnifies Stark Builders against any liability, cost or expense (including liability for reasonable legal costs on a solicitor and own client basis) in a proceeding, or threatened proceeding, including any settlement proceeding, or under an injunction or final judgment against Stark Builders based on an allegation made or a claim filed in a court or before an authority of competent jurisdiction, that the use of Intellectual Property provided by the Client to Stark Builders (including to its partners, contractors employees or agents) in the course of, or for the purpose of, Stark Builders procuring or providing the Services, is an infringement on the copyright, confidential information or Intellectual Property of any third-person and to the extent that any infringement is caused by an act or omission of Stark Builders (IP Claim).
(f) If an IP Claim is made:
(i) Stark Builders shall have control over the defence of the IP Claim and any negotiations to settle the IP Claim;
(ii) the Client shall provide to Stark Builders all assistance reasonably required by Stark Builders or its solicitors to defend or settle the IP Claim;
(iii) the IP Licence shall be automatically revoked until such time that the IP Claim is resolved;
(iv) Stark Builders shall be under no obligation to refund or return any payment(s) made by the Client under this agreement, or procure or provide the Services again, in the event that the IP Claim is ultimately successful or resolved in favour of a third-party; and
(v) it shall not be necessary for Stark Builders to incur expense or make payment before enforcing a right of indemnity under this agreement.
6. Preliminary Building Cost Estimation & Building Quote
(a) The Client acknowledges and agrees that Stark Builders may in connection with the Building Quote Services receive payment from third parties for Stark Builders’ actual or estimated administrative (including wages and all operational costs whatsoever) costs incurred in connection with the Building Quote Services.
(b) Without limiting clause 12, the Client acknowledges and agrees that although Stark Builders may conduct inquires to satisfy itself of the suitability of any other third party engaged, recommended, or introduced to any person, by Stark Builders in relation to any Services, Stark Builders will in no circumstances be liable for any acts or omissions (including negligence) of such builder or third party including for any Loss suffered by any person arising from or in connection with such acts or omissions.
7. Client Meetings
(a) The Services include only one face-to-face site visit or client meeting unless specified otherwise in any quote.
(b) Stark Builders is entitled to attend any face-to-face meeting via electronic medium such video link or from remote access.
8. Council Lodgement & Meetings
(a) Attending local government council or other responsible authority meetings is not included in the Services unless stated otherwise in any quote.
(b) Attendance at such meetings incurs a standard hourly rate of $140 per hour (excluding GST) or part thereof.
(c) Any submissions (including the preparation or presentation of any drawings or attendance of any meeting) to any local government council or other responsible authority on behalf of the Client can be requested in writing and will incur an additional fee unless stated otherwise in a relevant quote by Stark Builders.
9. Governmental Approvals
(a) Subject to clause 9(c), Stark Builders will use its best endeavours to assist and advise the Client with respect to satisfying all applicable laws, standards, codes and any approvals, authorities, licenses and permits which are required from governmental, municipal or other responsible authorities that are relevant to the lawful implementation of the Design (Approval Requirements) provided the Client and Designer at all times cooperate as required by Stark Builders and the Designer endorses the Design.
(b) The Client acknowledges and agrees that Stark Builders cannot, and does not, make any guarantee, warranty or representation:
(i) that any Design or any part of any Services will be approved by any responsible authority; or
(ii) to the outcome of the application of any Approval Requirements to the Design or any part of the Services.
(c) The Client shall pay fees for Services provided by Stark Builders with respect to Approval Requirements at the rates agreed to by Stark Builders in any quote or, failing agreement, at the rate of $140 (excluding GST) per hour of work or part thereof. Stark Builders may refuse to provide such Services if the Client does not agree to pay or otherwise fails to pay those fees.
(d) Subject to clause 9(e), if drawings or documents provided or produced by Stark Builders for the purpose of satisfying Approval Requirements do not satisfy those Approval Requirements, Stark Builders will, if reasonable and possible to do so, use its best endeavours to rectify such documents or drawings so they satisfy those Approval Requirements without charge.
(e) Clause 9(d) does not apply to any drawings or documents that do not satisfy Approval Requirements because of anything that, in Stark Builders’ reasonable opinion, has been included, done, or omitted, by or on behalf of the Client against Stark Builders’ advice.
(f) The Client shall pay fees for the preparation of all documents and drawings relating to any Approval Requirements are prepared by Stark Builders in connection with any Services even if such drawings or documents are not ultimately required or used in the provision of Services.
10. Issuing Drawings
(a) Unless otherwise agreed upon in writing, all drawings and all other documents arising from or connected with the Services will be provided to the Client in digital format.
11. Additional Scope & Services
(a) Additional work undertaken by Stark Builders that is not included in a relevant quotation for Services (including changes or additions to Services beyond the scope of such quotation) will be paid for by the Client at a rate of $140 (excluding GST) per hour of work or part thereof. Full payment for additional scope requested and agree upon by the client is required prior to the commencement of the additional works.
(b) Stark Builders will only produce drawings suitable for building license / construction certificates.
(c) The final quote provided to and accepted by the Client includes only items specifically mentioned within the Inclusions of the quotation. Should the Client wish to request further Services or increase their scope during the course of the relationship, this can be done by amending the quote accordingly, in writing, and being accepted by the Client in writing which will incur further costs. It is up to the Client to carry out due-diligence to confirm all potential costs associated with the project. Stark Builders will not be held liable for such additional costs.
(d) The Client may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, all express or implied guarantees, warranties, representations, or other terms and conditions relating to any Services, Design and/or these Terms not contained in these Terms are excluded to the maximum extent permitted by law.
(e) The Client acknowledges that in connection with Stark Builders providing Building Design & Drafting services, they may organize quotes from third-party consultants, not limited to Engineering, Land Surveying, Soil Reports & Certification.
(f) The Client acknowledges that Stark Builders is in no way liable or responsible for the work provided by third-party consultants in connection to these Additional Services.
(g) The Client acknowledges that in connection to Stark Builders organising quotes for the Additional Services, Stark Builders may receive a Client Engagement Service Fee from the Partner Consultants.
12. Project Delays
(a) Stark Builders will keep the Client informed of any delays and the timeline to remedy these delays.
(b) Stark Builders will not be responsible for any delay in delivering the Project if such delay is the result of an act, omission or neglect by the Client.
(c) The Client acknowledges and agrees that in the event of a delay, regardless if caused by Stark Builders or the Client:
(i) any time frames, milestones and/or deadlines will be extended by the number of days in which the cause of the delay was current;
(ii) the delay will not be considered a breach of this Agreement and the Client will not be entitled to a refund of any money paid or waiver of any obligation concerning payments.
13. Self-Promotion
(a) The Client acknowledges and agrees that Stark Builders is permitted to use any designs, documentation, reports and images produced by Stark Builders for self-promotion through marketing and advertising unless agreed upon by Stark Builders in writing prior to engaging the services.
(b) If a design was created by a third party and provided to Stark Builders by the Client for services then the Parties acknowledge and agree that Stark Builders can use the documentation and images produced by Stark Builders for self-promotion as long as Stark Builders acknowledges the original source of the design, unless agreed upon by Stark Builders in writing prior to engaging the services.
14. Sub-contractors
(a) The Client acknowledges and agrees that Stark Builders may subcontract any of its obligations of this Agreement to a third party (or multiple third parties) without notification to or consent from the Client.
(b) The Client acknowledges and agrees that Stark Builders may in connection with organising and coordinating the services of various consultants, including but not limited to structural engineers, land surveyors and town planners, receive payment from third party consultant companies.
15. Set-up, Service & Support
(a) When engaging Stark Builders, you must do all things reasonably necessary, and supply Stark Builders in a timely fashion with all information and files reasonably required by Stark Builders, in order for Stark Builders to perform the contracted services. These include, without limitation, supplying document and letter templates, access to any required system, copy, photographs, and other visual or audio-visual information.
(b) We offer all of our clients telephone and email support, and we aim to respond within 3 hours of receiving your request. Telephone support is available from 8:30am-5:00pm AEST Monday to Friday.
(c) You acknowledge and permit Stark Builders to record telephone conversations for the purposes of service quality and training.
16. Limitation of liability
(a) The Client may have the benefit of consumer guarantees under the Australian Consumer Law. Otherwise, all express or implied guarantees, warranties, representations, or other terms and conditions relating to any Services, Design and/or these Terms not contained in these Terms are excluded to the maximum extent permitted by law.
(b) Nothing in these Terms excludes, restricts or modifies any right or remedy or any guarantee or other term or condition implied or imposed by any legislation which cannot lawfully be excluded or limited (Statutory Rights).
(c) Subject to Stark Builders’ obligations under the Statutory Rights, and to the maximum extent permitted by law, the maximum aggregate liability of Stark Builders for all claims under or relating to these Terms or supply of Services whether in contract, tort (including without limitation negligence), in equity, under statute, or on any other basis is limited as follows:
(i) Stark Builders shall have no liability to the Client for any Consequential Loss;
(ii) Stark Builders’ total aggregate liability for Loss, however arising, is limited to payment of the price paid by the Client to Stark Builders for the Services that gave rise to the Loss.
(d) Stark Builders will not be liable for failure or for any Loss resulting from or connected to the failure to supply or deliver the Services caused by Force Majeure.
17. Variation and waiver
(a) No waiver of any of the provisions of these Terms by Stark Builders will be effective unless made in writing and signed by Stark Builders.
(b) No forbearance, delay or indulgence by Stark Builders in enforcing the provisions of these Terms shall prejudice or restrict the rights of Stark Builders, nor shall any waiver of those rights operate as a waiver of any subsequent breach.
(c) Stark Builders may vary these Terms at any time in its absolute discretion. No variation of any of these Terms will be effective unless the variation is in writing signed by Stark Builders and 30 days’ notice in writing of the variation is given by Stark Builders to the Client.
18. Dispute Resolution
(a) This clause does not apply where there is a dispute concerning a payment or any amount owing by the Client to Stark Builders.
(b) Subject to clause 18(f) any dispute which arises between the parties in connection with this agreement (dispute) must be dealt with in accordance with the requirements of this clause 18, before either party will be entitled to commence proceedings against the other party in respect of the dispute.
(c) The party claiming that a dispute has arisen (complainant) must give the other party a written notice setting out a detailed explanation of the nature of the dispute; and what action the complainant thinks will resolve the dispute (dispute notice).
(d) Within 10 business days of the dispute notice being received by the other party, a nominated senior executive of each party must meet, act in good faith and use best endeavours to resolve the dispute at that meeting, or such subsequent meetings as may be reasonably required.
(e) If the dispute is not resolved pursuant to clause 18(d) within 30 days of the dispute notice being received by the other party, the parties agree to attend a privately held mediation with a mediator appointed by the nominated senior executive or both parties and in the absence of agreement within 7 days of disagreement by such mediator as appointed by the President, or person in like office of the Resolution Institute.
(f) If the dispute is not resolved within a further 30 days pursuant to clause 17(e) then either party may commence proceedings against the other party in respect of the dispute.
(g) Nothing in this clause 18 prevents a party from seeking urgent injective or similar relief from a court.
19. Termination
(a) Stark Builders may terminate these Terms and the supply of any Services:
(i) immediately and without prior notice, if the Client is in default of any obligation owed to any amount of money to Stark Builders whosoever arising;
(ii) if the Client is in material breach of these Terms which is not remedied 7 days after written notice by Stark Builders of the substance of the breach.
(b) Either party may terminate these Terms if they are not in material breach of these Terms and an Insolvency Event occurs to either party.
20. Entire agreement
(a) These Terms supersede all prior agreements, arrangements and undertakings between the parties and relating to the Services provided by Stark Builders to the Client.
21. Governing law
(a) These Terms shall be governed by and construed in accordance with the laws for the time being in force in Queensland and the parties agree to submit to the exclusive jurisdiction of the courts and tribunals of Queensland.
22. Severability
(a) Should any part of these Terms be or become invalid, that part shall be severed from these Terms. Such invalidity shall not affect the validity of the remaining provisions of these Terms.
