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Terms & Conditions

CONDITIONS OF ENGAGEMENT
  1. The contract between the Client and the Consultant comprises these terms of agreement, the accompanying letter and any other documents stated in writing as being incorporated into the contract. Subject to the terms of the contract, the Consultant must provide to the Client the consulting engineering services described in the accompanying letter together with such other services as may be agreed in writing from time to time (the “Services”).
  2. Unless stated in the accompanying letter, the Consultant will perform the Services at its offices, the site of the project (‘Site’) or at any other place nominated in writing by the Client. Where the locations of the Consultant’s work are not under the Consultant’s control, the Client must provide reasonable access to allow the Consultant to fulfil its obligations, pay the Consultant’s expenses associated with working at the location(s), provide and pay for any site and safety inductions required in order to allow the Consultant’s personnel to work at the location(s) and provide, ensure that the Site or any other necessary location complies with all requires health and safety regulations, and pay for any accommodation in the event that the Consultant’s personnel are required to remain at the location(s) for longer than 1 working day.
  3. Before the Consultant provides the Services, the Client must:
    1. Sign and return a copy of the contract (the Fee Proposal) to the Consultant. If the Client does not return a copy of the contract to the Consultant but continues to provide information or instructions to the Consultant, the Client will be deemed to have accepted the terms of the contract.
    2. At its own cost, deliver to the Consultant all information, documents and other particulars relating to the Client’s requirement for the project as is necessary for the Consultant to carry out the services as expressly set out in this Agreement (the “Requirements”). The Client’s information, documents, and other particulars it provides to the Consultant in connection with this Agreement must be accurate. The Consultant is entitled to rely upon the Client’s information, documents and other particulars as being accurate. The Consultant will not be liable for any inaccurate information, documents or particulars provided by the Client.
    3. Provide the Consultant with instructions so that the Consultant can provide the Services.
FEE & PAYMENT
  1. The Client must pay to the Consultant:
    1. The Fee and the Reimbursable Expenses as set out in the accompanying letter together with such other amounts in respect of other services agreed to be provided;
    2. Reasonable adjustments to the Fee and the Reimbursable Expenses to reflect the additional costs, expenses, liabilities, losses or other amounts incurred or suffered by the Consultant in the performance of the Services and arising out of or in connection with any event or matter beyond the Consultant’s control, including as a result of inaccurate or missing information, document, and are particulars provided to the Consultant;
    3. All debt recovery costs including all legal expenses paid on an indemnity basis, administration and debt collection costs;
    4. Any increased service fees or charges in the event that the Client changes or increases the scope of the Services to be provided; and
    5. To the extent that amounts payable under this Agreement are not expressed to be GST inclusive, an additional amount for the GST incurred by the Consultant in relation to the supply of the Services (“GST”).
  2. The Client and the Consultant acknowledge that payment is an essential term of the contract.
  3. The Consultant may claim payment of all fees at the times set out in the accompanying letter or, if no time is set out, then within 10 days after the end of each month. If the Client disputes the amount payable to the Consultant in respect of a claim for payment, then it must within 15 days of receipt of the claim for payment issue to the Consultant a Notice of Dispute pursuant to clause 12 of this Agreement. Whether or not the claim for payment has been disputed, the Client must pay to the Consultant, without set-off or deduction, the amount claimed in the Consultant’s claim for payment within 30 days of the date of the claim.
  4. If the Client does not pay the Consultant in accordance with this agreement then, without prejudice to any other rights or remedies the Consultant may have, interest will be payable from the date of invoice until payment at a rate of 10% per annum, calculated and compounded monthly.
LIMITATION OF LIABILITY & WARRANTIES
  1. To the maximum extent permitted by law:
    1. Subject to paragraphs (b), (c), (d), (e), (f), and (g) below, the Consultant‘s liability to the Client arising out of or in connection with this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, shall be limited to the fee charged under this Agreement;
    2. The liability of the Consultant to the Client arising out of the performance or non-performance of the Services whether under the law of contract, tort or otherwise shall be limited to the cost of rectifying the works which are the subject of the commission;
    3. The liability of the Consultant to the Client arising out of an error or omission the Consultant shall be limited to the portion of the costs of rectifying the works that would not have been incurred if the error or omission had not occurred;
    4. The Consultant is not liable to the Client in respect of any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement);
    5. The Consultant shall be deemed to have been discharged from all liability in respect of the Services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of the period specified in the accompanying letter, or if no date is specified, at the expiration of one (1) year from the issue of the Final Certificate to the Contractor by the Consultant or where there is no Final Certificate at the expiration of one (1) year from the date of the final invoice issued by the Consultant under the Contract, and the Client (and persons claiming through or under the Client) shall not be entitled to commence any action or claim whatsoever against the Consultant (Director, officer, consultant or any employee of the Consultant) in respect of the Services after that date;
    6. If, and to the extent that, any of this clause is determined to be void as a result of any provision of the Competition and Consumer Act 2010 (Cth) or any other written law, then the Consultant’s liability for a breach of a condition or warranty is limited to:
      1. the supply of the relevant Services again; or
      2. the payment of the cost of having the Services supplied again.
    7. Any warranty or guarantee in relation to the Services are void if the product of the Services are altered in any way by the Client.
INTELLECTUAL PROPERTY
  1. Subject to the Client paying the Consultant all amounts due and owing under the contract the Consultant grants to the Client a non-exclusive, royalty-free and irrevocable licence to use (and allow others to use) any intellectual property (including all drawings, reports, specifications, bills of quantity, calculations and other documents, including “works” as defined in the Copyright Act 1968 (Cth) created or produced by the Consultant) arising out of provision of the Services (“IP Rights”) for the purposes of completing the Project. As between the Client and the Consultant, the ownership of the IP Rights vests in the Consultant.
  2. The Client acknowledges, agrees, and warrants that:
    1. The Client is solely responsible for any infringement of the intellectual property rights of any third-party resulting from the Client’s use of the product of the Services, and the Client must indemnify the Consultant and hold it forever harmless for any costs, expenses, demand, damages or liability incurred by the Consultant arising from any such infringement;
    2. The Client warrants that when submitting a request for Services, or direction for the Services, it will not infringe on any third-party’s intellectual property rights, including any design, copyright, or trademark.
CONFIDENTIALITY
  1. Neither the Client nor the Consultant shall disclose to third parties or use for any purpose (other than providing or benefiting from the Services) any information provided by the other unless:
    1. required by law;
    2. the information is already generally known to the public; or
    3. the other consents to the disclosure.
    All documentation and materials containing confidential information provided by one party to the other shall be returned upon the written request of that party. 
DISPUTE RESOLUTION
  1. Any dispute or difference (“Dispute”) between the Client and the Consultant, including a dispute as to payment arising under clause 6 of this Agreement, may be notified by a party to the other party by a Notice of Dispute. The parties shall:
    1. within 28 days of the date of the notice, meet to negotiate, in good faith, a resolution of the Dispute. Each party is to be represented at the meeting by a person who has authority to negotiate and resolve the Dispute; and
    2. if the parties fail to achieve a resolution of the Dispute within 14 days from the date of the meeting in 13a) above, the parties must arrange for and attend a mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia. Each party is to be represented at the mediation by a person who has authority to negotiate and resolve the Dispute.
    Where a Notice of Dispute is issued by the Client pursuant to clause 7 of this Agreement, the Notice of Dispute must be accompanied by a detailed statement setting out the amount the Client considers to be payable in respect of a payment claim, the calculations used to arrive at that amount and the reasons for the differences between the amount claimed in the Consultant’s payment claim and the amount the Client considers to be payable.
  2. Clause 13 in no way prevents the Consultant from instituting legal action at any time to recover moneys owing by the Client to the Consultant.
TERMINATION
  1. The Client may, without prejudice to any other rights or remedies it may have, by written notice served on the Consultant terminate its obligations under this Agreement:
    1. if the Consultant is in breach of the terms of the Agreement and the breach has not been remedied within 28 days of a written notice served by the Client on the Consultant specifying the breach and requiring the breach to be remedied; or
    2. upon the Client giving the Consultant 60 days’ written notice of its intention to do so; or
    3. if the Consultant is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, provisional liquidation, voluntary administration, winding up or external administration (“Insolvency Event”).
  2. The Consultant may, without prejudice to any other rights or remedies it may have, by notice in writing served on the Client suspend its obligations under this Agreement:
    1. immediately by written notice if the Client has failed to fulfil its obligations in accordance with clauses 3, 4(b), 4(c) or 5 of this Agreement; or
    2. if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 10 working days (or longer as the Consultant may allow) of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied.
  3. The Consultant may, without prejudice to any other rights or remedies that it may have, terminate its obligations under this Agreement by notice in writing served on the Client:
    1. if the breach referred to in Clause 15(a) has not been remedied within 5 days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied; or
    2. if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 28 days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied; or
    3. upon the Consultant giving the Client 28 days’ written notice of its intention to do so; or
    4. if the Client is the subject of an Insolvency Event.
    Despite any other provision of this contract no termination of this contract affects the obligations of the Client under clauses 4 and 6, which survive termination and remain in force and effect in accordance with their respective terms.
  4. Without prejudice to any other rights or remedies that the Consultant may have under this Agreement, in the event that the contract is terminated pursuant to clauses 14, 15, or 16, the client must:
    1. Immediately pay all amounts due and payable to the Consultant;
    2. Meet all expenses incurred by the Consultant as at the date of the termination; and
    3. Return all materials belonging to the Consultant including any plans, costing, or other documents prepared in accordance with this Agreement or the contract.
SUBCONTRACTING & ASSIGNMENT
  1. If the Consultant considers it appropriate to do so, it may, with the Client’s prior written approval, which shall not be unreasonably withheld or delayed, engage other consultants to the Consultant in specialist areas. All consultants engaged under this clause will be engaged by the Consultant acting as the Client’s agent and the Client will remain responsible for the consultant’s costs and expenses as well as the performance of the consultant.
  2. Subject to clause 18, neither party may novate, assign, transfer or sublet any obligations under this Agreement without the written consent of the other. Unless stated in writing to the contrary, no novation, assignment, transfer or subletting shall release the assignor from any obligation under this Agreement.
NOTICE
  1. All communications under the contract must be properly served. In the event that the Client requires the Consultant to use any electronic document management system to transmit communications and/or documents, the Client agrees that the Consultant may download a copy of all document control registers, all communications and documents it has uploaded or previously accessed onto the electronic document management system for its records at no cost to the Consultant.
  2. A communication will be deemed to have been properly served to the other party if it is:
    1. Delivered (by post or other means) to the address nominated in this contract;
    2. Sent by facsimile transmission to the facsimile number nominated in this contract;
    3. Sent by email transmission to the email address of the responsible the Consultant contact involved.
  3. A communication will be deemed to have been received:
    1. At the time of delivery, if delivered personally;
    2. Upon the expiry of 2 working days after posting, if posted;
    3. On the day of completion of the transmission, if sent by facsimile or email.
MISCELLANEOUS
  1. In the interpretation of this Agreement, if a clause or part of a clause of the contract can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from the contract, but the rest of the contract is unaffected.
  2. The law of the State or Territory in which the Consultant work is performed applies to this contract and the parties submit to the exclusive jurisdiction of the Courts of that State or Territory for the resolution of any disputes in connection with this contract. If work the Consultant performs work under this Agreement in more than one State or Territory the applicable law will be the State or Territory in which the Consultant first performed work.
  3. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this contract, does not amount to a waiver unless the waiver is in writing signed by the party granting it.
  4. No variation of this contract will be of any force or effect unless it is in writing and signed by each party to this contract.