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Consultancy Agreement Conditions
(for provision consultancy services to the Client by Structural Diagnostics Pty Ltd, hereinafter referred to as SDx).
These Consultancy Agreement Conditions (Conditions) and the SDx Proposal addressed to the Client (Proposal) form part of any contract between the Client and SDx (the Parties) in relation to the content of the Proposal. The contract (Agreement) between the Parties is formed when:
a) a Consultancy Agreement is executed by both Parties; or
b) when the Client or a representative:
(i) accepts the Proposal;
(ii) instructs SDx (either orally or in writing) to perform work;
(iii) pays SDx any deposit or fees for the Services that SDx offered to provide in the Proposal; or
(iv) otherwise indicates to SDx through the its conduct or actions that it has accepted the Conditions regardless of whether the Client signs a subsequent Consultancy Agreement or not.
(a) The Agreement is for the provision of services in connection with the capital works described in the Proposal (Services).
(b) If there is any inconsistency between the Conditions and the Proposal, the Proposal will prevail to the extent of the inconsistency.
(c) The Client may at any time request that SDx provides the Client with services additional to those listed in the Scope of Services (Additional Services). SDx will consider requests for Additional Services on a case-by-case basis, but the Client acknowledges SDx is under no obligation to provide such Additional Services.
(d) If during the execution of the Services conditions arise which could not have been reasonably foreseen which will affect the delivery date of any part of the Services specified in the Proposal, SDx will, where practicable and reasonable, provide the Client with notification of the relevant conditions and the anticipated effect on the date of delivery of the Services.
3. Fees & Disbursements
(a) The Fees for the Services provided by SDx, and any Additional Services, will be charged in accordance with the Fee Schedule, SDx Proposal and these Conditions
(b) The Client must pay the Fees at the times and in the manner specified in our Proposal.
(c) The Client may be required to pay the Fees in advance, or pay a percentage of the Fees as a deposit. Where this is the case, it will be specified in the Proposal.
(d) If the Client has requested that SDx provide Additional Services, the fees payable for such Additional Services will be calculated:
(i) at the rate specified in the Additional Services and Rates, or
(ii) if no rate for Additional Services has been specified in the Proposal, at SDx standard rates (Standard Rates).
(e) SDx will provide the Client with a tax invoice for all Fees payable pursuant to these Conditions. Unless otherwise stated in the Proposal, payment must be made within fourteen (14) days of the date of issue of the invoice.
(f) Interest at the rate of the Reserve Bank of Australia Cash Rate plus 2% is payable in respect of any tax invoice which is not paid in accordance with clause 3.1(e). Interest will be charged and calculated daily on the balance owing until the invoice is paid in full.
(g) In the event that the Client fails to pay an invoice by the due date and SDx is required to engage in debt recovery proceedings or institute court proceedings to recover overdue amounts, the Client acknowledges and agrees that SDx has the right to recover all of our costs and interest in relation to the action taken, including but not limited to legal costs and outlays on a full indemnity basis.
In addition to the Fees the Client will pay SDx the cost of all disbursements properly incurred by SDx on the Client’s behalf plus a mark-up of ten percent (Disbursements). Where possible SDx will notify the Client of disbursements in advance.
(a) SDx will, in accordance with these Conditions:
(i) perform its Services with due care and skill;
(ii) act in good faith in the performance of its Services; and
(iii) comply with all laws.
(b) The Client acknowledges that the Client must:
(i) provide SDx with all documentation, materials, information and reasonable assistance that SDx requires in order to deliver its Services;
(ii) ensure that SDx has clear and free access at all times to any site or premises that SDx is required to attend or access in order to deliver its Services;
(iii) pay all Fees, Disbursements and other amounts to which SDx is entitled in the manner and at the time described in any tax invoice, the Proposal and these Conditions;
(iv) act in good faith in the performance of the Client’s obligations under the Agreement;
(v) provide SDx with information and instructions that SDx requests in a timely manner.
(c) Unless SDx otherwise expressly agrees in writing, the Client acknowledges and agrees that SDx is not liable or responsible in any way for the performance of any Party that has not been engaged by SDx directly.
(d) The Client acknowledges that, unless specified as part of the Services or agreed to in writing, SDx will not check or report on the performance or accuracy of any services, information, reports, documentation or other content provided by a third party (Third Party Services).
(e) Where the Services are dependent upon Third Party Services, the Client acknowledges that the Services will be subject to the accuracy and completeness of those Third-Party Services. The Client releases SDx from all liability, loss, cost, expense or damage that the Client may suffer or incur due to any inaccuracy, deficiency or error in our Services, that is caused by or results from an error, omission, inaccuracy or other deficiency of any nature in any Third-Party Services.
(f) The Client acknowledges that SDx will use and rely primarily on the information provided by the Client in the performance of the Services without independently verifying or assuming responsibility for the accuracy or completeness of such information.
(g) The Client acknowledges that any dimensions or measurements that SDx provides as part of our Services are subject to customary industry tolerances.
(h) The Client acknowledges that following delivery of the Services factors may arise that impact upon the ongoing relevance, completeness and accuracy of the Services. SDx will not be responsible for, and the Client releases SDx from, all liability, loss, expense, cost or damage that the Client may suffer or incur as a result of relying on content, documentation, advice or information that has been provided as part of the Services, which has become inaccurate, incomplete or otherwise deficient, due to a change in circumstances or conditions occurring after the date of delivery of the Services.
5. Intellectual Property
(a) For the purposes of the Agreement intellectual property (IP) means all intellectual and industrial property rights and interests throughout the world, whether registered or unregistered, including without limitation trademarks, designs, copyright and analogous rights, confidential information, know-how and all other intellectual property rights as defined in Article 2 of the convention establishing the World Intellectual Property Organisation of 14 July 1967 as amended from time to time.
(b) The Client licenses to SDx such IP in information it provides as is necessary to enable SDx to deliver the Services.
(c) SDx licenses to the Client such IP in information it provides as is necessary to enable the Client to use, repair, maintain or service the capital works for which the Services are provided.
(d) Each Party warrants the other that it has the requisite authority to grant the licence referred to in clauses 5(c) and 5(c).
6. Limitation of Liability & Warranty
6.1 Limitation of liability
(a) The Client acknowledges and agrees that SDx’s maximum liability 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 or resupplying the Services provided to the Client.
(b) The Client acknowledges and agrees that SDx shall be released by the Client from all liability under the Agreement, whether under the law of contract, tort or otherwise, at the expiration of the earlier of:
(i) six months from the completion of the Services; or
(ii) the date on which the Client, or any third Party engaged by the Client, undertakes any action in relation to any premises, structure, building or otherwise, which affects or could affect any advice, information, report or opinion that SDx has provided as part of the delivery of the Services, and the Client (and any persons claiming through or under the Client) shall not be entitled to commence any action or claim whatsoever against SDx (or any employee or subcontractor of SDx) in respect of the Services after that date.
(a) The Client acknowledges that SDx does not give any warranty nor accept any liability in relation to the performance or non-performance of the Services, except to the extent, if any, required by law or specifically provided for in the Agreement. If apart from this clause any warranty would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law, hereby excluded.
(b) Nothing in the Agreement shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying, the application of any warranty or
guarantee in relation to the supply of any goods or services which by law cannot be excluded, restricted or modified.
The provisions of this clause 6 survive the termination of this Agreement.
(a) The Client indemnifies SDx against all liability, loss, damage, costs and expenses, suffered or incurred by SDx, arising from or incurred in connection with:
(i) any breach of this Agreement by the Client;
(ii) the infringement of any third-party rights, including without limitation intellectual property rights, resulting from the use by SDx of any Content or other documentation and materials that the Client has provided to SDx;
(iii) any act of fraud or wilful misconduct made by the Client or made on the Client’s behalf;
(iv) reliance on advice or instruction from the Client regarding any Third-Party Services; and
(v) delivery of the Services in accordance with the Agreement.
(b) The indemnity provided in clause 7(a) will be proportionately reduced to the extent that any damage, cost, expense, or loss suffered was contributed to by the direct actions of SDx.
8. Term and Termination
The Agreement will commence on the date when the contract is formed in accordance with clause 1, and will terminate upon:
(i) the date for delivery of the Services as specified in our Proposal;
(ii) expiry of any further period agreed between the parties, or provided for under in these Conditions, for the delivery of the Services; or
(iii) the exercise of a right of termination of a Party as provided in these Conditions.
a) Either Party may terminate the Agreement with immediate effect where the other Party has committed a breach of the Agreement that is not capable of remedy, or where the breach is capable of remedy and it has not been remedied by the Party in breach for a period of fourteen (14) days from the date on which it received notification of the breach.
(b) Where the Agreement is terminated on the basis of a) above the Client acknowledges and agrees that:
(i) the Client is not entitled to a refund of any Fees or Disbursements paid to SDx; and
(ii) if the Client has not already paid to SDx the Fees, Disbursements or any other amounts to which SDx is rightfully entitled, the Client remains liable to SDx for the payment of such amounts and must make payment of those amounts on demand.
(a) Each Party will treat as confidential, and will not disclose, unless disclosure is required by law:
(i) the terms of any contractual relationship or Agreement between the Parties; and
(ii) information generated during performance of the Agreement.
(b) The obligation of confidentiality does not apply to the extent:
(i) The information is in the public domain;
(ii) Disclosure is required by law;
(iii) disclosure is necessary to procure goods or services in connection with the Services; or
(iv) disclosure is agreed by the Parties in writing.
Any notices given under or in connection with the Agreement:
(a) must be in legible writing and in English;
(b) must be:
(i) sent by email to the designated email address of the relevant Party; or
(ii) delivered to the designated physical address of the relevant Party.
(c) will be deemed to be received by the addressee:
(i) if delivered by hand, at the time of delivery;
(ii) if sent by post, on the third business day after the day on which it is posted, the first business day being the day of posting; or
(iii) if sent by email, at the time that would be the time of receipt under the Electronic Transactions Act 1999.
(a) If a dispute arises out of or relates to the Agreement (Dispute) a Party to the Agreement may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with this clause, except where the Party seeks urgent interlocutory relief.
(b) A Party claiming that a Dispute has arisen must give a notice (Dispute Notice) to the other Party specifying the nature of the Dispute. The Parties must then negotiate in good faith to resolve the Dispute expeditiously.
(c) If the Parties do not resolve the Dispute within fourteen (14) days of receipt of the Dispute Notice (or such further period as agreed in writing by them) any Party to the Dispute may refer the Dispute to mediation by a mediator nominated by the President or the nominee of the President for the time being of the Queensland Law Society Incorporated.
(d) Each Party must bear its own costs in connection with resolving the Dispute and the Parties must bear equally the costs of any mediator engaged.
(e) Any information or documents disclosed by a Party under this clause must be kept confidential and may not be used except to attempt to resolve the dispute.
(a) The Client will appoint one person to exercise the functions of the Client under the Agreement and advise SDx of the appointment in writing. For clarity and efficiency this person will be the ‘single point of contact’ for all communication with the Body Corporate, including all site coordination issues.
(b) SDx will appoint one person (Representative) to exercise the functions of SDx under the Agreement and advise the Client of the appointment in writing. The SDx Representative may appoint further persons to exercise delegated functions without limiting the Representative’s ability to exercise those functions.
13. Standard Provisions
Neither Party can assign, novate or otherwise transfer any of its rights or obligations under the Agreement without our prior written consent of the other Party.
13.2 Force Majeure Event
(a) A Party will not be responsible for a failure to comply with its obligations under this Agreement to the extent that failure is caused by any event beyond the control of the relevant Party (Force Majeure Event), provided that the Party keeps the other closely informed in such circumstances and uses reasonable endeavours to rectify the situation.
(b) Without limiting any other right to terminate under this Agreement, if a Force Majeure Event affects a Party's performance for more than 30 consecutive days, the other Party may immediately terminate this Agreement by written notice.
13.3 Goods and Services Tax
(a) Unless otherwise expressly stated, all amounts stated to be payable under the Conditions are exclusive of goods and services tax (GST). If GST is imposed on any supply made under or in accordance with the Conditions, then the GST payable must be paid to the supplier as an additional amount by the recipient of the supply, provided the supplier provides a tax invoice in respect of the taxable supply.
(b) If a Party is entitled to be reimbursed or receive compensation for any of its costs, expenses or liabilities, any input tax credits to which that Party is potentially entitled to receive in relation to those amounts is not to be considered.
(a) SDx may collect the Client’s information for the purposes of performing SDx’s obligations under the Agreement. The Client acknowledges and agrees that SDx may disclose this information to our related companies, to credit reporting agencies and other third parties as part of provision of the Services.
(b) The Client may gain access to the Client’s information in clause 13.4(a) by writing to SDx and requesting such access.
14. General matters
(a) These Conditions may only be varied by a further written agreement signed by or on behalf of each of the Parties.
(b) The Agreement contains the entire agreement between the Parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by the Agreement and has no further effect.
(c) Any provision of these Conditions that is illegal, void or unenforceable will be severed without prejudice to the balance of the provisions of these Conditions which remain in force.
(d) Time is of the essence in respect of each Party’s obligations under the Agreement
(e) The non-exercise of or delay in exercising a right of a Party will not operate as a waiver of that right, nor does a single exercise of a right preclude another exercise of it or the exercise of other rights. A right may only be waived by written notice signed by the Party to be bound by the waiver.
(f) The Agreement is governed by the law in force in the state of Queensland, Australia (Jurisdiction) and each Party submits to the non-exclusive jurisdiction of the courts of the Jurisdiction in relation to any proceedings that may be brought at any time relating to the Agreement. Each Party irrevocably waives any objection to proceedings being commenced in the Jurisdiction