GENENG SOLUTIONS PTY LTD
STANDARD TERMS AND CONDITIONS FOR THE PROVISION OF CONSULTING SERVICES
1. The parties agree that the terms of this Agreement shall apply to all work conducted by the Consultant to the Client, until otherwise agreed between the parties.
2. The Consultant shall provide to the Client the consulting services described in the letter of engagement under the section Scope of Works together with such other services as may be agreed in writing from time to time (the “Services”).
3. The Consultant shall provide the Services with such skill, care and diligence as is generally exercised by competent members of the consulting profession performing services of a similar nature, at the time the Services are provided.
4. The Services will be performed at either or both the site of the project (the “Site”) or at other places reasonably required by the Client. Where the locations of the Consultant’s work are not under the Consultant’s control (including the Site), the Client must provide reasonable access to allow the Consultant to fulfill its obligations (including to provide the Services).
5. The Client shall, at its own cost, as soon as practicable make available 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 Consultant is entitled to rely on such information, documents and other particulars as are provided by the Client pursuant to or in connection with this Agreement. The Consultant shall not be liable to the Client for any loss, damage, costs, expenses or claims arising from the Consultant’s use of any documents for information or instructions supplied by the Client which are incomplete, incorrect, illegible or arising from their late arrival or non-arrival.
6. The Consultant will not be bound by any standard or printed terms, conditions, warranties or representations furnished by the Client in any of its documents unless the Consultant specifically states in writing separately from such documents that it intends such terms and conditions to apply and the Client acknowledges such notification in writing.
For any variation to these terms to be effective, variation must be in writing and signed by both the Consultant and the Client.
The Services of the Consultant are provided solely for the use of the Client and no liability to anyone else is accepted. Should the Client not act upon specific, reasonable advice of the Consultant, no responsibility is accepted for the consequences.
7. The Client shall pay to the Consultant:
(a) the Fee and the Reimbursable Expenses as set out in the letter of engagement and in accordance with the terms of invoice together with such other amounts in respect of other Services agreed to be provided;
(b) 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; and
(c) 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 Goods and Services Tax (“GST”).
8. The Consultant may claim payment in accordance with the times set out in the letter of engagement or, if no time is set out, monthly in arrears. The Client must pay to the Consultant, without set-off or deduction:
(a) the amount payable under this Agreement for the Services provided during the relevant period, within 30 days of the Consultant’s invoice; and
(b) the GST payable under this Agreement for the Services provided during the relevant period, within 30 days of receiving a valid tax invoice.
9. 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.
10. To the maximum extent permitted by law:
(a) subject to paragraphs (b), (c) and (d) 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 in aggregate to the amount specified in the accompanying letter or $300,000.00, if no amount is stated in the letter;
(b) the Consultant shall not be liable to the Client by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of this Agreement, for any loss of profit or any indirect, special or consequential loss, damage, costs, expenses or other claims (whether caused by the negligence of the Consultant, its servants or agents or otherwise) and including loss of business opportunity or payment of liquidated sums or damages under either this Agreement or any other Agreement which arises out of or in connection with the provision of the Services (including any delay in providing or failure to provide the Services) or its use by the Client;
(c) 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, on the expiration of three years from the completion of the Services;
(d) if, and to the extent that, any of this clause is void as a result of the Competition and Consumer Act 2010 or otherwise at law, then the Consultant’s liability for a breach of this Agreement or any condition, or for any loss, damage, costs, expenses or other claims (whether caused by the negligence of the Consultant, its servants or agents or otherwise) is limited to:
• the supplying of the relevant Service again; or
• the payment of the cost of having the Services supplied again.
11. Subject to the Client complying with its obligations under the Agreement , 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 Services. As between the Client and the Consultant, the ownership of the IP Rights vests in the Consultant.
12. Neither the Client nor the Consultant shall disclose to third parties or use for any purpose (other than providing or benefiting from the Service) any information provided by the other unless:
(a) required by Law;
(b) the information is already generally known to the public; or
(c) the other consents to the disclosure.
All documentation and materials containing confidential information provided by one party to the other shall be returned upon request.
13. Any dispute or difference (“Dispute”) between the Client and the Consultant may be notified by a party to the other party and the parties shall:
(a) firstly meet to negotiate, in good faith, resolution of the Dispute; and
(b) secondly, if negotiation fails to achieve a resolution of the Dispute within five working days of the notification of the Dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia, provided that this provision shall not prevent the Consultant from instituting legal action at any time to recover moneys owing by the Client to the Consultant.
14. 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:
(a) if the Consultant is in breach of the terms of the Agreement and the breach has not been remedied within 14 days of a written notice served by the Client on the Consultant specifying the breach and requiring the breach to be remedied; or
(b) upon the Client giving the Consultant 60 days written notice of its intention to do so; or
(c) if the Consultant informs the Client that it is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, provisional liquidation, voluntary administration, winding up or external administration (“Insolvency Event”).
15. 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:
(a) immediately by written notice if the Client has failed to pay in accordance with this Agreement; or
(b) if the Client is in breach of any of the other terms of Agreement and the breach has not been remedied within ten 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.
16. The Consultant may, without prejudice to any other rights or remedies it may have, terminate its obligations under this Agreement:
(a) if the breach referred to in clause 14(a) has not been remedied within five working days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied; or
(b) if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 14 days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied; or
(c) upon the Consultant giving the Client 14 days written notice of its intention to do so; or
(d) if an Insolvency Event occurs in relation to the Client.
17. Neither party may assign, transfer or sublet any obligations under this Agreement without the written consent of the other. Unless stated in writing to the contrary, no assignment transfer or subletting shall release the assignor from any obligation under this Agreement.
18. In the interpretation of this Agreement, no rule of construction applies to the disadvantage of one party on the basis that it put forward this Agreement or any part of it.