DELIGEORGES & ASSOCIATES
TERMS AND CONDITIONS OF ENGAGEMENT FOR CONSULTING SERVICES
1. Deligeorges & Associates (D&A) shall provide to the Client the consulting services (“the Services”) described in the accompanying document.
2. In providing the Services D&A shall exercise the degree of skill, care and diligence normally exercised by consultants in similar circumstances.
3. The Client shall provide to D&A at the briefing, all information concerning the Client’s requirements for the commission. The Client shall also provide D&A with all data and information required by them in a timely manner to properly perform the Services, and the Client warrants to D&A that all the data and information supplied by it will be complete and accurate in all respects. D&A shall retain a copy of such data for its records for a maximum period of seven (7) years and destroy such data after that time.
4. The Client shall only provide copies of such data stipulated in Clause 3 and D&A shall be entitled to keep such copies as necessary to support its findings both currently or into the foreseeable future. Should the Client provide original documents, D&A shall take a copy for its records at the Client’s expense.
5. The Client shall pay to D&A the Fees and Reimbursable Expenses.
6. All monies payable by the Client to D&A shall be paid within 30 days of the invoice dispatch. Monies not paid within that period shall attract interest at a rate of 15% per annum.
7. The sole liability of D&A to the Client arising out of the performance or non-performance of the Services, whether under the law of contract, tort or any other basis in law whatsoever, shall be limited to:
a. the cost of rectifying the works the subject of the Services; or if D&A reasonably considers that rectification is not practical;
b. an aggregate of no more than A$ 50,000;
whichever is lesser.
8. D&A will be deemed to have been discharged from all liability in respect of the Services, whether under the law of contract, tort or any other basis in law whatsoever on the expiration of one (1) year from:
a. the completion of the Services;
b. the date of invoice in respect of the final amount claimed by D&A pursuant to Clause 5; or
c. the termination of this Agreement;
whichever is the earlier and the Client shall not be entitled to commence any action or claim whatsoever against D&A (or any employee, agent or sub-consultant of D&A) in respect of the Services after that date.
Save as expressly set out in Clause 7, in consideration for D&A agreeing to provide the Services, the Client covenants and agrees to indemnify and forever hold D&A and its directors, officers, shareholders, servants, agents, employees and representatives harmless from and against all losses, expenses, damages, claims, actions, suits, causes of actions, demands, claims, proceedings, costs and charges, of whatsoever nature or description arising directly or indirectly out of the provision or purported provision of the Services, which any one or more of them may suffer or incur as a direct or indirect consequence of the Services (including but not limited to any oral or written report, statement, advice, opinion or comment made by or on behalf of D&A) or anything done or omitted to be done by D&A in connection with or incidental to the Services in any respect.
9. Copyright in all drawing, reports, specifications, bills of quantity, calculations and other documents provided by D&A in connection with the Services shall remain the property of D&A.
10. Subject to Clause 12, the Client alone shall have a licence to use the documents referred to in Clause 10 for the purposes of completing the brief, but the Client shall not use, or make copies of, such documents in connection with any work not included in the brief.
11. If the Client is in breach of any obligation to make a payment to D&A, D&A may revoke the licence referred to in Clause 11, and the Client shall then cause to be returned to D&A all documents referred to in Clause 10, and all copies thereof, within 14 days of receiving notice of revocation of the licence.
12. Any dispute between the Client and D&A shall first be the subject of mediation provided that this provision shall not prevent D&A from instituting legal action at any time to recover monies owing by the Client to D&A.
13. Any dispute arising between the Client and D&A is governed by and in accordance with the laws in force in the State of Western Australia.
14. The Client may terminate D&A’s engagement under this Agreement:
a. in the event of substantial breach by D&A of its obligations hereunder, which breach has not been remedied within 30 days of written notice from the Client requiring the breach to be remedied; or
b. upon giving D&A 60 days written notice of its intention to do so.
15. D&A may suspend or terminate its obligations under this Agreement:
a. In the event of:
i. Monies payable to D&A hereunder being outstanding for more than 60 days; or
ii. In the event of a substantial breach by the Client of its obligations hereunder, which breach has not been remedied within 30 days of written notice from D&A requiring the breach to be remedied, or
b. Upon giving the Client 60 days written notice of its intention to do so.
16. If D&A considers it appropriate to do so, it may, with the Client’s prior approval, which shall not be unreasonably withheld, engage other consultants to assist D&A in specialist areas. The Client accepts responsibility for all monies payable to such other consultants.
17. If at any stage during the Agreement period or at any time within a period of six (6) months after the last day of the Agreement period, the Client offers any D&A personnel, including contractors and associates involved in the provision of the Services, an employment opportunity, in any way or form that results in the personnel leaving the employment of D&A, the Client is to pay to D&A an amount equivalent to either 30 days at the consultant’s daily charge out rate, or 300 hours at the consultant’s hourly charge out rate. This payment to D&A is deemed to be a finder’s fee for services provided to the Client.
18. Neither party may assign, transfer or sublet any obligation under this Agreement without the prior written consent of the other. Unless stated in writing to the contrary, no assignment, transfer, or sub-letting shall release the assignor from any obligation under this Agreement.
19. Without in anyway prejudicing or diminishing the full effect of the limitation of liability contained in Clause 7, the Client acknowledges and agrees that if the Client makes any claim against D&A for breach of contract and the loss, injury or damage the Client claims to have suffered is also wholly or partly the result of the Client’s negligence, the Client’s claim will be reduced as if the claim against D&A was based in negligence to the full extent of the Client’s contributory negligence.
20. The provisions of Clauses 7, 8, 9 and 20 are subject always to the provisions of Part V of the Australian Trade Practices Act 1974 (as amended) or any other law which cannot be excluded, restricted or modified by agreement.
21. In any event of any clause or part of a clause of this Agreement being invalid, illegal, unlawful or otherwise being incapable of enforcement, that clause of part of a clause shall be deemed to be severed from this Agreement and of no force and effect but all other clauses and parts of clauses of this Agreement shall nevertheless prevail and remain in full force and effect and be valid and fully enforceable and no clause or part of a clause of this Agreement shall be construed to be dependent upon any other clause or part of a clause unless so expressed herein.