Legals

Appointment for Provision of Services (Issue 02 – 2017)

1. Engineered Designs & Certifications Pty Ltd ABN 38 628 702 518 (“EDC”) shall perform the services as referred to in these terms and conditions for the client (the “Client”) whose full details are specified in the Quotation (which shall form part of these Terms & Conditions hereof) or other documentation accompanying these terms and conditions.

2. Services

2.1 The services to be provided by “EDC” to the Client the (“Services”) shall be those Services set out and described in the Scope of Works in the Quotation and/or any other documentation annexed to these terms and conditions.
2.2 If the Client so requests in writing, “EDC” may provide such Services in addition to the Services as may be agreed, for which “EDC” may make an additional charge.
2.3 If the Client requests any variation in the provision of the Services including as to the circumstances in which the Services would normally be performed, the timing or order of the provision of the Services, the scope of the Services or any variation in the Services to be supplied or delivered, “EDC” may make an additional charge.

3. Commencement & Termination

3.1 This Agreement will commence on the acceptance by “EDC” of a Client purchase order which is subject to the terms and conditions set out herein.
3.2 The documentation may be executed separately, and delivered by any of the following means personally, by facsimile, electronic mail or by prepaid post, and when so executed and delivered shall be an original and all such counterparts shall together constitute one and the same instrument.
3.3 These terms and conditions will terminate upon the completion of the Services or when otherwise terminated in accordance with the terms and conditions of this Agreement, whichever is the earlier.

4. Fees

4.1 The Client shall pay “EDC” the Fees and expenses for the Services as specified in the quotation “Quotation Value”.
4.1.1 “EDC” shall submit to the Client periodically invoices for that portion of the Services rendered in the relevant period; or
4.1.2 “EDC” shall submit to the Client invoices as per the Payment Milestones as specified in the quotation (“Payment Milestones”) for that portion of the Services rendered.
4.2 In the event that Fees and expenses are not specified in the quotation, “EDC” shall submit to the Client at the end of each calendar month an invoice for that portion of the Services rendered in the relevant month and expenses incurred being all expenses reasonably and properly incurred in the performance of the Services.
4.3 The Client shall pay a 10% handling fee on expenses.
4.4 The Client shall pay the Fees and expenses within the (“Payment Terms”) specified in the quotation.
4.5 In the event that Payment Terms are not specified in the quotation, the Client shall pay the Fees and expenses within seven days of the invoice date.
4.6 If the Client fails to make payment of the amount due to “EDC” as and when due, the Client shall pay, in addition to the arrears, interest on all arrears during each day during which the default continues at the rate charged by the bankers of “EDC” on business overdraft accounts, or such other rate as expressly agreed upon between the parties in writing.

5. “EDC” Responsibilities

“EDC” shall exercise reasonable skill care and diligence in the performance of the Services and without limiting the generality thereof shall:
5.1.1 use all reasonable efforts to inform itself of the Client’s requirements;
5.1.2 consult as is necessary with the Client in relation to the performance of the Services;
5.1.3 keep the Client informed of all material matters relating to the provision of the Services;
5.1.4 notify the Client of any matter that will change, or has changed the scope of or the timing for delivery of the Services and in relation thereto notify the Client of all Fees and expenses arising from such changes;
5.1.5 use its best endeavours to perform the Services within the time (if any) specified in the quotation.

6. Client Responsibilities.

The Client shall:

6.1 provide “EDC” in a timely manner, all necessary information, documents, other particulars and make the necessary arrangements for access, approvals and permits, equipment and facilities as are necessary for the provision of the Services
6.2 appoint a person to act as its representative and give written notice to “EDC” of the name of the person so appointed who shall have authority to act on behalf of and bind the Client for all purposes in connection with the provision of the Services;
6.3 if “EDC” advises the Client that the Client’s obligations are not sufficient to enable “EDC” to provide the Services, provide “EDC” with such further assistance, information, documents or other particulars and material as are necessary to enable the Services to be provided;
6.4 where the Services are to be performed other than at the premises of “EDC”, ensure the provision of a safe working environment in accordance with the Model
Work Health and Safety Act 2017 and further the Client shall indemnify and keep indemnified “EDC” in respect of all actions, suits, causes of action, claims, demands and costs of whatsoever nature and howsoever arising from or in relation to occupational health and safety issues and ensure that appropriate permits and insurances are in place.

7. Liability

7.1 “EDC” shall not be liable for any delay in the provision of the Services or failure to perform the Services if such delay or failure is due to acts, omissions or circumstances caused by the Client or over which “EDC” could not reasonably have exercised control, including delay as a result of lack of access to the site and/or any delay caused by the Client in responding to “EDC”’s request for information, documents or particulars pursuant to clause 6.3 hereof.
7.2 The Client shall pay “EDC” all Fees and expenses incurred by it as a result of any delay or failure to perform the Services due to acts, omissions or circumstances over which “EDC” could not reasonably have exercised control as referred to in paragraph 7.1 hereof.
7.3 The Client shall indemnify and keep indemnified “EDC” from and against all actions, suits, causes of actions, claims, demands and costs of whatsoever nature and howsoever arising from or relating to any delay in the provision of the Services or failure to perform the Services arising from any act omission or circumstances over which “EDC” could not reasonably have exercised control as referred to in paragraph 7.1 hereof including any claim for consequential loss.

8. Protected Material

8.1 The Client agrees that any programs, diagrams, flow charts, drawings, artwork, plans, specifications, calculations, circuit diagrams, designs, components, documentation, submissions, instructions, procedures, guidelines, items, materials, words or information of whatsoever nature produced or developed by “EDC” (or Affiliated Entity) or under “EDC”’s direction pursuant to or in the course of providing the Services shall remain the sole and complete property of “EDC”, whether such property is tangible or is in the nature of industrial and intellectual property rights (including rights in copyright , designs, inventions, innovations, confidential information and trade secrets) all of which property is for the purposes of these terms and conditions, any quotation or addendum thereto called “the Protected Material”.

8.2 Upon completion and receipt of payment in full for the Works (in accordance with the terms of this Agreement), the Client is granted a licence to use the Protected Material supplied by “EDC” in the course of or upon completion of the Works for the purpose as expressly set out or otherwise contemplated by the Scope of Works. In the event of early termination of the Agreement, any protected material (or copies thereof) shall be returned forthwith and all electronic copies shall be deleted.

9. Should the Services include giving to the Client an estimate of the likely cost of the works or project of which the Services form part, “EDC” warrants that it will exercise reasonable skill, care and diligence in the preparation of the estimate.

10. “EDC” has taken out and maintains the following insurances: Worker’s Compensation (Work Cover); Motor Vehicle; Public Liability; Professional Indemnity; applicable to its personnel, motor vehicles and the performance of the Services.

11. Client’s Goods

11.1 Where goods (including equipment and materials) are supplied or are to be supplied by the Client, the Client is solely responsible for the insurance of those goods for the duration of the works (including transit to and from the site)
11.2 Paragraph 10.1 applies irrespective of where the works are to be conducted.

12. Client’s Works

12.1 Where “EDC” is required to provide the Services in conjunction with, as part of, in respect of, on the basis of or in addition or supplementary to work carried out by the Client or by other persons or parties on behalf of the Client including without limiting the generality thereof design, documentation, resources, validation, project management and/or resource co-ordination (the “Client’s works”), whether or not the Client’s works are subject to review by “EDC”, “EDC” shall not be liable to the Client in respect of the accuracy, correctness or suitability of the Client’s works, and the Client shall indemnify and keep indemnified “EDC” from and against all actions, suits, causes of action, claims, demands and costs of whatsoever nature and howsoever arising from or relating to the Client’s works including claims for consequential loss and shall reimburse “EDC” for all Fees and expenses incurred as a result of or arising from or, relating to any delay or failure to perform the Clients works, including Fees and expenses incurred in rectifying, remedying or making good the Client’s works.
12.2 Where the Services provided by “EDC” comprise the provision of personnel who will work either in whole or in part at premises owned or occupied by the Client or any of its subsidiaries, or a subcontractor thereof, or who is subject to direction either complete or partial by the Client or any of its subsidiaries, or a subcontractor thereof as to the performance of his duties, the Client shall indemnify and keep indemnified “EDC” from and against all actions, suits, causes of action, claims, demands and costs of whatsoever nature and howsoever arising from or relating to actions of such personnel including claims for consequential loss.

13. Loss or Damage

13.1 Except as expressly provided to the contrary in these terms and conditions, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Services or to these terms and conditions are excluded. Without limiting the generality thereof, “EDC” shall not be under any liability to the Client in respect of any loss or damage, (including consequential loss or damage) howsoever caused which may be suffered or incurred or which may arise directly or indirectly in respect of the failure or omission on the part of the “EDC” to comply with its obligations under these terms and conditions.
13.2 Where any Act of Parliament or Regulation implies in these terms and conditions, any term, condition or warranty and avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of, or liability under such term, condition or warranty, such term, condition or warranty shall be deemed to be included in these terms and conditions. However, the liability of “EDC” for any breach of such term, condition or warranty shall be limited, at the option of “EDC” to:
13.2.1 the supplying of the Services again; or
13.2.2 the payment of the cost of having the Services supplied again; or
13.2.3 the value of retention monies retained by the Client.
13.3 Where “EDC” fails to exercise a reasonable degree of skill, care and diligence in the provision of the Services, the liability of “EDC” shall be limited, at the option of “EDC” to:
13.3.1 the supplying of the Services again; or
13.3.2 the payment of the cost of having the Services supplied again; or
13.3.3 the value of retention monies retained by the Client.
13.4 Notwithstanding the foregoing, “EDC” shall have no liability to the Client arising from or relating to the provision of the Services, unless the Client has given notice in writing within six months of the date of termination of this agreement.
13.5 The Client shall indemnify and keep indemnified “EDC”, its directors, employees, servants and agents from all actions, suits, causes of actions, claims demands and costs of whatever nature and howsoever arising from or relating to the provision of the Services or in respect of any failure or omission on the part of the Client to comply with its obligation save as provided herein.

14. Assignment

14.1 “EDC” may sub-contract for the performance of the Services or any part of the Services.
14.2 Save as provided in clause 12.1, the benefit of these terms and conditions shall not be dealt with in any way by either party (whether by assignment, sub-licensing or otherwise) without the other party’s prior written consent.

15. Termination

15.1 Without limiting the generality of any other clause in these terms and conditions, a party may terminate these terms and conditions immediately by notice in writing if:
15.1.1 any payment due pursuant to these terms and conditions remains unpaid for a period of 7 days;
15.1.2 a party is in breach of any clause of these terms and conditions and such breach is not remedied within 28 days after service of a written notice specifying the breach;
15.1.3 the party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency
15.1.4 administration;
15.1.5 a party ceases or threatens to cease conducting its business in the normal manner.
15.2 If the Services are terminated “EDC” may:
15.2.1 retain any monies paid to it;
15.2.2 charge for Services performed in respect of which no fee has previously been charged;
15.2.3 retake possession of all property of “EDC” in the possession of the Client;
15.2.4 be regarded as discharged from any further obligations to provide Services; and
15.2.5 pursue any additional or alternative remedies provided by law.

16. Notices

16.1 All notices shall be forwarded to the address specified in the quotation which forms part of these Terms & Conditions hereof and this address shall constitute the address for service for the purposes of these terms and conditions.
16.2 In the event that no address is specified in the quotation, the address for service shall be the registered office.

17. Where any provision of these terms and conditions is inconsistent or in conflict with the provisions of the quotation and any other document constituting an agreement between the Client and “EDC”, the relevant provision of these terms and conditions shall prevail.

18. Any dispute arising in connection with the provision of the Services shall be submitted to arbitration in accordance with the rules for the conduct of commercial arbitration for the time being of the Institute of Arbitrators, Australia, with the arbitrator to be appointed by the President for the time being of the Institution of Engineers, Australia.

19. If there is any change to the laws, by-laws, regulations or ordinances of the Commonwealth of Australia or a state or territory of Australia or any statutory authority that directly or indirectly increases or decreases the costs or reimbursable expenses incurred by “EDC” in performing the Services, the payment otherwise due to “EDC” shall be increased or decreased accordingly.

20. These terms and conditions shall be governed by the laws of the State of Queensland, Australia and the parties hereby agree to submit to the jurisdiction of the Courts in the State of Queensland in relation to any question or dispute that may arise hereunder.

21. Any demand notice or document under these terms and conditions may be made or given by a party or by the solicitor for a party and shall be sufficiently served or delivered if served or delivered to the address for service specified, including by any of the following means: personally, by facsimile, electronic mail or by prepaid post addressed to the party to be served at its address specified or notified pursuant to these terms and conditions and where no such address is specified or notified at its registered office.

22. The placing of a purchase order by the Client shall constitute acceptance of these terms and conditions as the sole basis for the supply of the Services. These terms and conditions shall constitute the entire agreement between the parties to the exclusion of any conditions appearing on any other document and, in the event of conflict, these terms and conditions shall prevail. No warranties, representations, guarantees or other terms or conditions of whatsoever nature not contained and recorded herein shall be of any force or effect. Any modification of these conditions expressed in any documentation of the Client shall not apply to these terms and conditions unless expressly accepted in writing by “EDC”.

23. If any provision of these terms and conditions shall be held invalid and not enforceable in accordance with its terms, that provision shall be severed and all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provisions shall be and continue to be valid and enforceable in accordance with those terms.

24. Waiver

24.1 No change termination or attempted waiver of any of the provisions of these terms and conditions shall be binding on a party hereto unless in writing and signed by a duly authorized officer of that party or by that party.
24.2 No waiver by any party or any default in the strict and literal performance of or compliance with any provision, condition or requirement herein shall be deemed to be a waiver of strict and literal performance of and compliance with any other provision, condition or requirement in the future nor shall any delay or omission by any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.

25. Definition

25.1 In these terms and conditions except to the extent that the context otherwise requires:
25.1.1 words denoting the singular include the plural and vice versa;
25.1.2 words denoting individuals or persons include body corporates and trusts and vice versa;
25.1.3 reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of these terms and conditions;
25.1.4 reference to a document or agreement includes reference to that document or agreement as changed, novated or replaced from time to time;
25.1.5 words denoting any gender includes all genders;
25.1.6 where a word or phrase is given a definite meaning in these terms and conditions a part of speech or other grammatical form for that word or phrase has a corresponding meaning; and
25.1.7 where the Client consists of more than one person or entity then any obligation, term or condition shall bind each person or entity jointly and severally
25.1.8 “Affiliated Entity” shall mean any corporate entity which, directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with such party and, for the purpose of this definition, “control” means the ownership of shares carrying at least a majority of the votes in respect of the election of the directors of a corporate entity.

26. These terms and conditions shall extend to bind the parties hereto and their respective heirs, executors, successors, assigns, administrators and legal personal representatives and any reference to any party shall where the context so admit include their respective heirs, executors, successors, assigns, administrators and legal personal representatives.

27. The Client shall not employ or offer to employ any of “EDC”’s staff or engage any of “EDC”’s staff directly or through any third party in the Services of itself or any subsidiary, affiliate, related corporation (as defined by the Corporations Law) or associated person during the term or for a period of six (6) months after completion of the Services.

28. Any special conditions included in the addendum shall form and be part of these terms and conditions.

29. Goods and Services Tax

29.1 For the purpose of this clause 29:
“GST” means GST within the meaning of the GST Act.
“GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (as amended).
Expressions set out in italics in this clause bear the same meaning as those expressions in the GST Act.
29.2 To the extent that a party makes a taxable supply in connection with these terms and conditions, except where express provision is made to the contrary in any documentation, and subject to this clause 29.2, the consideration payable by a party under this agreement represents the value of the taxable supply for which payment is to be made.
29.3 Subject to clause 29.4, if a party makes a taxable supply in connection with this agreement for a consideration which, under clause 29.2, represents its value, then the party liable to pay for the taxable supply must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply.
29.4 A party’s right to payment under clause 29.3 is subject to a valid tax invoice being delivered to the party liable to pay for the taxable supply.