Terms and Conditions

Structure of Agreement

This Agreement consists of;

• the Proposal
• the Acceptance of Fee Proposal
• these Terms, and
• the General Conditions of Contract for engagement of consultants AS4122-2010.

Order of Precedence

If there is any inconsistency between any parts of this Agreement, the document listed higher in clause 1 prevails to the extent of that inconsistency.

Definitions

Acceptance of Proposal means acceptance of Proposal, acceptance of these Terms and the granting of authority to commence work, when executed by both parties.

Agreement means the document which constitutes or evidence or, as the case may be, all the documents which constitute or evidence the final and concluded agreement between the Client and the Company concerning the performance of the Services.

Client means the body or person with whom the Company contracts for or in relation to the performance or provision of the Services and, if the Client is an incorporated body, shall include related corporations.

Company means Beveridge Williams & Co. Pty Ltd (ABN 38 006 197 235) and any other related company and the servants and agents thereof.

Intellectual Property means all copyright (including moral rights), all rights in relation to inventions (including patents), trademarks, confidential information (including trade secrets and know-how), moral rights, technical data, formulae, computer programs, data bases, logos, designs and similar industrial or intellectual property rights, in each case whether registered or not.

Loss means any loss including any liability, costs, expense (including legal costs on a full indemnity basis), claim, proceeding, action, demand or damage suffered but excluding any special or consequential loss.

Party means a party (or parties) to this agreement being the Company and/or Client.

Project means the job described in the Acceptance of Fee Proposal (Address and Project name) and to which this Agreement relates.

Proposal means the Company’s proposal to the Client as described in the Fee Proposal.

Services means the work to be performed by the Company in accordance with the Agreement as described in the Proposal.

Terms means the terms and conditions as detailed in these Terms of Agreement.

Performance

The Company undertakes to provide the Services with the care, skill and diligence of a professional experienced in the discipline practiced by members of its profession in the same locality and under similar conditions. The Company will not be liable whatsoever in respect of any failure to exercise a degree or level of care beyond the undertaking given in this clause.
The Company warrants that it will comply with all relevant laws, regulations, codes of practice and standards in relation to the supply of the Services.

No other warranty, express or implied, is given, except where required by law

Client Information and Directions

The Client must provide the Company, in a timely manner, with all information, documents, access, and instructions necessary for the Company to perform the Services.

Variations

The Company may vary the Services by notifying the Client, in writing, of necessary modifications to the scope of works or cost changes due to circumstances beyond the control of the Company. The notification of a variation will detail any necessary adjustment to the fee or date for the completion of the Services to reflect the change in the work to be undertaken or omitted from the Services.

Terms of Payment

1. Tax Invoices

   The Company will issue tax invoices monthly or as set out in the Acceptance of Fee Proposal. Payment in full of each invoice is due within 14 days of issue, or as agreed between the Parties and documented by the Parties in writing.

2. Unpaid Accounts

   Interest will accrue daily on all accounts not paid by the due date at the rate shown on the Acceptance of Fee Proposal. If no interest rate is shown, the default interest rate is the interest rate for overdue payments under the Security of Payment legislation in the jurisdiction in which the Services were provided.

   The Client agrees that the Company has the right to suspend work and withhold documents until overdue accounts are paid without liability for any Loss that may occur, including indirect or consequential loss, due to a suspension of work or withholding of documents.

3. Costs

   If the company takes legal action against the Client for recovery of any amount due to the Company, including interest accrued under clause 7.2, the Client must pay the Company all reasonable legal costs incurred by the Company in respect of the legal action on a Solicitor Client basis.

Intellectual Property

1. All Intellectual Property provided by the Company in relation to the Services remains the property of the Company. All Intellectual Property subsisting in or created pursuant to the Project and the scope of works vests in the Company as and when created.
2. The Company grants to the Client a non-exclusive royalty free licence to use all Intellectual Property subsisting in the Project subject to the payment to the Company of all monies owing under this Agreement.
3. Any license granted under clause 8(b) may be revoked if such payments are not made within 14 days of the due date for payment.
4. The Client may only use the Intellectual Property in connection with the Project.

Insurance

The Company agrees to maintain sufficient insurance to reasonably cover its liability in the performance of the Services. In so doing the Company shall maintain Workers’ Compensation Insurance, as required by applicable law, professional indemnity insurance and public liability insurance and such other insurances as may be agreed.

Indemnity

1. The Company indemnifies the Client in respect of:
   1. Loss of or damage to or loss of use of the Client’s property; or
   2. Claims in respect of death or injury to persons or loss of or damage to third party property, or.
   3. Claims for breach of a third parties Intellectual Property rights by the Company arising out of the performance or non-performance of the Services, provided always that the Company’s liability under this indemnity shall be reduced proportionately to the extent that the cost, loss or damage otherwise indemnified has resulted from any act of omission of the Client or its employees or a third party.
2. The Client indemnifies the Company in respect of:
   1. loss of or damage to or loss of use of the Company’s property; or;
   2. claims in respect of death or injury to persons or loss of or damage to third party property,
   3. claims for breach of Intellectual Property rights by the Company

   arising out of the performance of the Services or use of Client supplied information, documents or materials, provided always that the Clients liability under this indemnity shall be reduced proportionately to the extent that the cost, loss or damage otherwise indemnified has resulted from any act or omission of the Company, its employees, subcontractors or a third party.

Liability

1. The Company will be liable to the Client for any Loss or liability which the Client incurs as a direct result of:
   1. The death, personal injury, damage or loss of property arising from the Services,
   2. The negligent performance of the services, or
   3. A breach of this agreement by the Company.
   4. Fraud or bad faith on the part of the Company.
2. The Company is not liable to the Client for any Loss or liability which the Client incurs directly or indirectly as a result of:
   1. Any acts, omissions or defaults of the Client or parties engaged by the Client.
   2. Any variations to the scope of works or the Services without the prior written approval of the Company.
   3. Any circumstances that could have reasonably been avoided or mitigated by the Client.

Limitation of Liability

1. The Company’s liability arising out of the supply of the Services (whether such liability arises in contract, tort, under statute, under indemnity or otherwise), to the maximum extent permitted by law, is limited to either:
   1. Supplying the Services again, or
   2. paying the cost of having the Services supplied again.
2. The Company’s limitation of liability under clause 12.1 does not limit the Company’s liability in respect to:
   1. Third party claims for personal injury or death,
   2. deliberate or reckless disregard or neglect of any of the Company’s duties or functions under this Agreement by the Company or its employees,
   3. The sum the Company receives from its insurers under a policy of insurance required to be held by the Company under this Agreement.

Time Limit for Making Claims

The Client will be deemed (to the maximum extent permitted by law) to have waived all claims against the Company which have not been made in writing within 1 year after the date of the final invoice rendered by the Company for the Services provided.

Estimates of Fees or Cost of Works

1. The Client acknowledges that any estimates of fees (other than the Fees for the Services) or Cost of Works provided by the Company are indicative only and do not constitute a binding representation, warranty or covenant in relation to the actual future costs of any fees, works or project.
2. The Client must not rely on any estimate for the purposes of any work or project and the Client agrees to release and hold harmless the Company from any claim relating to it or any other party’s reliance on an estimate.

Confidentiality

Both Parties shall keep confidential any information regarding the Project and the other Party’s affairs unless disclosure is necessary to perform the Services or is agreed to by the other Party except insofar as such information becomes public knowledge.

Assignment

1. Neither Party may assign its interest in this Agreement without the prior written consent of the other Party (which must not be unreasonably withheld).
2. Despite clause 16.1, the Company may, on giving prior written notice to the Client, subcontract the performance of any part of the Services. If the Company subcontracts any part of the Services, the Company remains responsible for the subcontracted Services as if the Services were performed by the Company.

Dispute Resolution

1. Without prejudice to a Party’s right to seek urgent interlocutory relief, any dispute arising out of interpretation of, or a Party’s compliance with this Agreement may be referred by either Party;
   1. first, to a nominee of each Party for negotiation within 14 days of written notice identifying such dispute; and
   2. secondly, failing resolution of the dispute under paragraph (a), to a mediator to be appointed by the Resolution Institute to mediate the dispute.
2. Each Party shall be entitled to legal advice and representation in respect of the mediation under clause 17.1(b).
3. Each Party shall be responsible for its own costs and will share equally the cost of mediation under clause 17.1(b).

Special Conditions relating to Field Work

Field work is carried out subject to the following conditions:

1. Access to the site will be available during normal working hours or as agreed prior to acceptance of the proposal.
2. Except where the Company is specifically engaged to locate underground assets (service), the Client is responsible for notifying the Company of any underground assets that may be damaged by the Services. No responsibility will be accepted for damage to underground assets where the Company hasn’t been advised of the location of the assets, other than that arising from the negligence of the Company.
3. Drill cuttings will not be removed from the site but left near the hole or as directed. Drilling fluid will be redirected to drains where possible.
4. Test pits will be backfilled and wheel rolled by a backhoe or excavator. Excess spoil will be mounded on the surface.
5. Contaminated soil, sediment and groundwater samples recovered as a result of drilling, excavation and sampling will remain the property of the Client.

Execution of Agreement

The Parties acknowledge that the person executing the Acceptance of Fee Proposal on its behalf has the authority to represent the Party.

By executing the Acceptance of Fee Proposal, the Parties agree to be bound by these Terms of Agreement, and the Client accepts the Proposal and gives authority to the Company to commence work.