DesignBeaver Pty Ltd (ACN 611 829 175) "Consultant" CLIENT SERVICES AGREEMENT


These terms and conditions of engagement, together with any accompanying document(s) and/or any correspondence incorporating these terms and conditions, ("Agreement") constitutes the entire terms and conditions agreed by the Client and the Consultant with respect to the Services and supersedes all prior agreements, proposals, representations and negotiations (whether oral or written) relating to the Services provided pursuant to the Agreement.

If there is any inconsistency between these terms and conditions and any accompanying document, these terms and conditions shall take precedence.

1. Performance of the Services

The Consultant shall perform the services described in the accompanying Job Quote ("the Services") with due care, skill and diligence and in accordance with the standard of performance considered acceptable by the consulting engineering profession in Australia.

2. Client's Responsibility

The Client shall provide to the Consultant:

  1. adequate briefing, instructions and all relevant documents, samples, patterns and other information concerning the Client's requirements sufficient to enable the Consultant to carry out the Services.
  2. such access to job premises or sites of the Client as is reasonably necessary for the Consultant to carry out the Services.
  3. notice of any matter which may change the scope or timing of the Services or the project immediately upon becoming aware of such events.

The Consultant shall not be liable for any damage or consequential costs caused by incomplete or inaccurate information supplied by the Client or its agents.

3. Fee / Credit Checks

  1. The Client agrees to pay the Consultant the remuneration described in the Fee Proposal for performing the Services ("the Fee").
  2. The Client acknowledges that 50% of the Fee is due on acceptance of the Job Quote ("Initial Payment") with the remaining 50% due on completion of the Services but prior to the issue of the Deliverables ("Final Payment").
  3. The Client shall provide updated and accurate billing information. If the Client is paying for the Services by credit card, the Client will provide the Consultant with valid credit card information and promptly notify the Consultant of any changes necessary to charge the credit card. The provision of credit card information to the Consultant authorises the Consultant to charge the credit card for all Services specified in the Job Quote.
  4. The Services shall not commence until such time as the Consultant's financial institution has confirmed that the Initial Payment has  been received by the Consultant.
  5. The Deliverables shall not be issued until such time as the Consultant's financial institution has confirmed that the Final Payment has been received by the Consultant.
  6. All purchases are non-cancellable, and fees paid are non-refundable
  7. The Job Quote is valid for a period of two weeks provided the Services are capable of commencement within one month of the date of the Job Quote.  The Consultant reserves the right to review the Job Quote should the Services not be capable of commencement within one month of the date of the Job Quote.
  8. The Client authorises the Consultant to carry out credit checks and to obtain credit reports in respect of the Client's creditworthiness.
  9. The Client warrants that the trading entity information stated in the Job Quote is accurate and correct for the purposes of financial obligations and transactions.
  10. All moneys payable by the Client to the Consultant shall be paid within 7 days of invoice.  Moneys not paid within that period shall attract interest from the date of invoice until payment at the rate of 10% per annum.

4. Deliverable Acceptance

  1. The Client may accept a Deliverable within a period of five (5) business days after receipt from the Consultant ("Acceptance Period").  If the Client elects to reject a Deliverable within the Acceptance Period, it must do so in writing to the Consultant setting out clearly any alleged deficiency in such Deliverable ("Deficiency Notice").
  2. The Consultant shall use commercially reasonable efforts to promptly cure any alleged deficiency within ten (10) business days of receipt of the Deficiency Notice and shall resubmit the Deliverable to the Client.
  3. This process shall be repeated as necessary and appropriate in all of the circumstances.
  4. Upon accepting any Deliverable, the Client, at the Consultant's request, shall provide a written acceptance of such Deliverable. If the Client fails to reject any Deliverable within the applicable Acceptance Period and in the manner described above, such Deliverable shall be deemed to have been accepted by the Client at the end of the applicable Acceptance Period.
  5. Should any Deliverable be rejected by the Client, acting reasonably, after the Consultant has had two opportunities to cure any alleged deficiency, the Client may terminate the Agreement and the Consultant shall refund any prepaid moneys for only so much of the Services that were alleged to have been deficient.

5. Variation to the Services

  1. The Client may give a direction to vary, add or delete part of the Services ("Variation Request") however, such direction must be in writing.
  2. The Consultant will provide the Client with a separate Variation Quote in response to the Variation Request.
  3. The Consultant will endeavour to assist the Client with a Variation Request but neither the Consultant nor the Client have any obligation to proceed with a Variation Request or Variation Quote unless both parties agree in writing to do so.

6. GST

The Fee  for the Services is inclusive of 10% Goods and Services Tax ("GST") unless otherwise specified in the Job Quote.

7. Delays, extensions of time and associated costs

If the Consultant is or will be delayed in carrying out the Services by a cause beyond the reasonable control of the Consultant or by an act or omission of the Client or an employee, or other consultant, contractor or agent of the Client, then the time for carrying out the Services shall be extended by the extent of the delay and the Client shall pay to the Consultant such extra costs as are necessarily incurred by the Consultant by reason of the delay.
Nothing in this clause shall (a) oblige the Client to pay extra costs for delay or disruption which have already been included in a Variation Quote or any other payment under this Agreement, or (b) limit the Client's liability for damages for breach of this Agreement.

8. Specialist Assistance

  1. If the Consultant considers it appropriate to do so, it may, with the Client's prior approval, engage another consultant to assist in specialist areas.
  2. Unless otherwise specified, the costs associated with engaging another consultant will be included in the Fee.

9. Limitation of Liability – third party consultants and contractors

  1. The Client acknowledges and accepts that, to the extent permitted by law, the Consultant, its officers and agents shall not be liable to the Client whatsoever, whether in contract or tort (including, but not limited to, negligence), breach of statute or any other legal or equitable obligation in relation to any loss or damage or personal injury arising from any act or omission of any sub-consultant, contractor, workman, supplier, fabricator or other third party involved in the project that is not the responsibility of the Consultant and covered by the Consultant's insurance policies.
  2. The Client agrees to indemnify and keep the Consultant indemnified against liability for all loss or damage howsoever caused or arising from the events set out in subclause 9(a) above.

10. Limitation of Liability – the Services

To the extent permitted by law:

  1. any liability of the Consultant for loss or damage, howsoever caused or arising out of or in connection with the Agreement (including performance and non-performance of the Services), whether under the law of contract, in tort (including negligence), in equity and under statute or otherwise:
    1. shall be limited to the sum of five (5) times the Fee which shall be the maximum limit in respect of all claims; and
    2. shall be reduced proportionally to the extent that any act or omission of the Client or its employees or agents caused or contributed to the loss, damage or liability;
  2. the Consultant is not liable for any indirect or consequential loss or damage, or loss of revenue or profits or business opportunity, howsoever caused or arising (including, but not limited to, by negligence of the Consultant) that may be suffered by the Client in connection with the Agreement;
  3. after the expiration of one (1) year from the date of invoice in respect of the Final Payment claimed by the Consultant, the Consultant shall be discharged from all liability in respect of the Services whether under the law of contract, in tort, in equity, under statute or otherwise. The Client shall not be entitled to commence any action or claim whatsoever against the Consultant (or any employee, agent or sub-consultant of the Consultant) in respect of the Services after the expiration of that time.

11. Copyright

  1. Copyright in all drawings, reports, specifications, calculations and other documents ("Intellectual Property") provided by the Consultant belongs to the Consultant at all times.
  2. Unless otherwise agreed between the parties, and subject to payment of the Fee under the Agreement, the Client alone shall have a licence to use the Intellectual Property referred to above for the purpose of completing the project, but the Client shall not use, or make copies of, such Intellectual Property in connection with any work not included in the project.
  3. If the Client uses or directly or indirectly causes the Intellectual Property to be used, the Consultant may revoke the licence referred to above and the client must immediately return to the Consultant all Intellectual Property referred to (including any copies thereof) and the Client may be the subject of further action to recover moneys owing and copyright damages.

12 Feedback

The Client grants to the Consultant worldwide, perpetual, irrevocable, royalty-free permission to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction, or other feedback provided by Client.

13. Privacy

The Consultant will collect, use, and retain information about the Client and the Client's use of the Services according to the Documentation. The Consultant will comply with its Privacy Policy available on the website (link) (the "Privacy Policy") in the collection, use, and storage of information about the Client and its personnel.

14. Warranty and Indemnity by Client

If the Client provides the Consultant with documents, samples, patterns, plans and other information ("the material"), the Client shall indemnify and keep indemnified the Consultant, its officers, employees and agents against all harm, loss and damage arising from the Client's infringement of any third party's intellectual property right in the material.

15. Termination / Suspension

  1. The Agreement may be terminated or suspended at any time by mutual agreement or by the Client giving 10 business days prior written notice to the Consultant. If the Agreement is terminated or suspended, the Client shall pay the Consultant a fair and reasonable fee for the Services carried out up to and including the date of termination.
  2. The Consultant may terminate the Agreement by notice in writing to the Client if the Client fails to pay the Consultant's invoices when due, or if the Client fails to remedy any substantial breach of the Agreement within the time specified in a written notice to remedy.
  3. Termination shall be without prejudice to any claim which either party may have against the other in respect of any breach of the terms of the Agreement which occurred prior to the date of termination.

16. Disputes

  1. In the event that any dispute or difference whatsoever shall arise between the Client and the Consultant from  the Services or the Consultant's invoices, the Client must notify the Consultant in writing, adequately identifying and providing details of the dispute, within 5 days of the dispute coming to the Client's attention or of the invoice being issued.
  2. The Client and the Consultant agree to use their best endeavours to negotiate a settlement of all disputes in good faith. The Client agrees to submit the dispute to mediation if requested by the Consultant, provided that this provision shall not prevent the Consultant from instituting legal proceedings at any time to recover moneys owing by the client to the Consultant.

17. Governing Law and Jurisdiction

The Agreement shall be construed and governed in accordance with the laws of the State or Territory in Australia in which the Consultant has its principal place of business, and the parties hereto submit to the non-exclusive jurisdiction of the courts of that State or Territory.

18. Disclaimer - Estimates of construction costs

Where estimates of construction costs are given:
Where the Consultant expresses an opinion of the estimated costs of the project, that estimate will be based on the Consultant's experience as a consulting engineer and not as a quantity surveyor. The Client acknowledges and accepts that any such estimate will only be used as a guide. The Consultant does not accept any liability for any estimates of construction costs.

19. Commencement of Agreement
The Agreement shall be deemed effective on and from the date of commencement of the Services by the Consultant or the date of execution of the Agreement, whichever is earlier.

20. Assignment
Neither party may assign, transfer or sublet any right or obligation under the 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 the Agreement.

21. Amendment and waiver
Except as provided at law or in equity or elsewhere in the Agreement, none of the terms of the Agreement shall be amended, waived, discharged or released unless expressly agreed in writing by the parties.

22. Severance
If any provision or part of the Agreement is found to be illegal, unenforceable or invalid, then that part or provision will be severed from this document so that all parts that are not, or do not become, void, unenforceable or invalid remain in full force and effect and are unaffected by that severance.

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