Outlined below are the standard terms and conditions of agreement for BMT Oceanica.
1. Unless the context otherwise requires, then in construing the Agreement:
‘Agreement’ means the agreement for the Consultant to provide Services to the Client and comprises these Terms of Agreement and any variation, the Proposal and any other documents identified in the letter of acceptance as forming part of the Agreement.
‘Client’ means the party with whom the Consultant contracts to provide the Service as detailed in the Agreement.
‘Client’s Representative’ means the Client’s representative nominated in the Agreement as the key contact for the Project.
‘Consultant’ means BMT Oceanica Pty Ltd and its successors or assigns.
‘Consultant’s Representative’ means the BMT Oceanica representative nominated in the Agreement as the key contact for the Project.
‘Reimbursable expenses’ means costs incurred by the consultant in the course of fulfilling the Agreement.
‘Document’ includes electronic correspondence.
‘Fee’ means the amount set out in the Agreement and includes disbursements.
‘Hourly Rate(s)’means the hourly rate(s) for the relevant staff levels set out in the proposal (or otherwise the rate(s) that the Consultant normally charges for work undertaken by the relevant employee(s) at the time the work is undertaken).
‘Intellectual Property’ means all statutory or proprietary rights in respect of copyright, trademark, design and the right to have confidential information kept confidential.
‘Information’ includes documents and information provided before execution of the agreement.
‘Project’ means the project(s) that the services relate to.
‘Services’ means those professional Services specifically described in the proposal.
‘Third Party’ means a person who is not a party, but does not include the Consultant’s employees, agents, subcontractors and Subconsultants.
‘Subconsultant’ means any person group or company engaged by the Consultant or with whom the Consultant may arrange for any work to be performed for the Client.
ROLE OF THE CONSULTANT
2. The Consultant shall provide to the Client the consulting Services described in the Agreement together with such other Services as may be agreed from time to time (the ‘Services’).
3. The Consultant shall exercise reasonable care, skill and diligence in the performance of the Services as is generally exercised by competent professionals performing Services of a similar nature, at the time the Services are provided.
4. The Consultant shall use all reasonable efforts to inform itself of the requirements for the Project and for that purpose it shall consult the Client throughout the performance of the Services.
5. The Consultant shall appoint a representative to communicate with the Client. The person appointed shall be deemed to have authority to act on behalf of the Consultant for all purposes in connection with this Agreement.
6. Unless otherwise specified in writing in the Agreement, the person to provide the Services shall be determined by the Consultant at its own discretion.
7. The Consultant shall immediately notify the Client as soon as it becomes aware that the information, documents and other particulars made available to it by the Client are not sufficient to enable the Consultant to provide the Services in accordance with this Agreement. Upon receipt of such notice the Client will provide such further information or documents as necessary in the circumstances.
8. In the event that there is any matter which may change or which has changed the scope or timing of the Services or the Project then the Consultant will give notice to the Client as soon as practicable.
9. The Consultant shall perform the Services in a timely manner to the extent that it is in its control to do so.
10. The Consultant shall provide advice in an independent manner and in accordance with the Consultant’s best professional judgement.
11. The Consultant is an active member of the Western Australian Environmental Consultants Association (ECA) and shall act in accordance with the ECA’s Code of Conduct.
ROLE OF THE CLIENT
12. The Client shall, as soon as practicable:
a) make available to the Consultant the information, documents and other particulars currently available to the Client relating to the Client’s requirements for the Services as is necessary for the Consultant to carry out the Services as expressly set out in this Agreement. 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;
b) appoint a person to act as its representative and give written notice to the Consultant of the person appointed which person shall be deemed to have authority to act on behalf of the Client for all purposes in connection with this agreement;
c) make available to the Consultant at the place and at the time specified in the Proposal any equipment and facilities specified in the Proposal as being supplied by the Client;
d) make arrangements to enable the Consultant to enter upon any land necessary to enable the Consultant to perform the Services; and,
e) obtain all approvals, authorities, licenses, permits which may be required for the lawful implementation and provision of the Services.
13. The Client confirms that information provided to the Consultant by its employees, agents and contractors is complete and accurate. The Consultant will not check, and does not accept any liability in connection with, any information the Client has provided unless checking that information is part of the Services.
14. Should the Client become aware of the requirement to change the scope or timing of the Services, then it shall give written notice of this to the Consultant within seven (7) days of the requirement arising.
15. The Client, its employees, agents and contractors shall cooperate with the Consultant and not interfere or obstruct the proper conduct of the Services.
PAYMENT FOR THE SERVICES
16. The Client agrees to pay the Consultant the Fees at the agreed Hourly Rate(s) and the reimbursable expenses as set out within the Agreement together with such other amounts in respect of other Services agreed to be provided and any reasonable adjustments 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.
17. The Client agrees to pay the Consultant any reasonable amendment to the Hourly Rate(s) provided that the Consultant gives at least thirty (30) days written notice of any amendment to the Client.
18. Reimbursable Expenses incurred by the Consultant shall include an oncost fee to cover associated banking, insurance and handling costs. Supporting documentation will be provided on request by the Client.
19. The Client agrees to pay the Consultant any reasonable amendment to the oncost fee provided that the Consultant gives at least thirty (30) days written notice of any amendment to the Client.
20. All amounts payable under this Agreement are exclusive of GST or other applicable service tax unless expressly included in the Agreement. The Client shall pay an additional amount for the GST incurred by the Consultant in relation to the supply of the Services.
21. At the end of each agreed payment period or, if no time is set out, monthly in arrears, the Consultant shall submit to the Client a tax invoice for the Services performed during the payment period.
22. The Client shall, within 30 days of the of the date of issue of the Consultant’s invoice, or such other period as may be agreed and specified in the Agreement, pay the Consultant the amount claimed in the invoice, without set-off or deduction.
23. If the Client disputes the whole or any portion of the amount claimed, it shall pay that portion not in dispute and notify the Consultant in writing of the amount in dispute and reasons for disputing the amount. If the parties are unable to reach agreement within seven (7) days of notice, the dispute may be determined in accordance with this Agreement.
24. 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 per annum equal to the National Australia Bank Business Overdraft Reference Rate, plus 1% per annum.
25. If the Client does not pay the Consultant in accordance with this Agreement then the Consultant has the right to immediately cease work and/or to withhold delivery of any product of the service until the matter is resolved.
SCOPE OF LIABILITY AND INSURANCE
26. 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 (including but not limited to warranties and implied warranties), in tort (including but not limited to negligence), in equity, under statute or otherwise, shall be limited solely to the repetition by the Subcontractor of the Services which are shown to be deficient. The Consultant will be liable to re-perform its Services to rectify such deficient Services only up to a cost to the Consultant which does not exceed the amount of fees paid in respect of such deficient Services.
b) the Consultant is not liable to the Client in contract, in tort (including but not limited to negligence), in equity, under statute or otherwise for any kind of indirect or consequential loss or damage, loss of opportunity, loss of revenue, loss of profit or anticipated profit, loss of contracts, loss of goodwill, loss arising from business interruption or liability arising out of or in connection with pollution or contamination arising out of or in connection with this Agreement incurred or suffered by a party, or any other person.
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 ‘Agreement’, or if no date is specified, on the expiration of (3) 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 section 12EB of the Australian Securities and Investments Commission Act 2001, then the Consultant’s liability for a breach of a condition or warranty is limited to:
i. the supplying of the relevant Services again; or
ii. the payment of the cost of having the Services supplied again.
27. The Consultant shall maintain, with a reputable insurer, Professional Indemnity and Public Liability insurance cover. The Consultant shall provide certificates of currency on request at any time before completion of the Services or if not date is specified, on the expiration of (3) years from completion of the Services.
28. The Client will indemnify and keep indemnified the Consultant and the Consultant’s Subconsultants against all claims, costs, suits and demands by third parties howsoever arising whether in respect of the Services or in respect of the performance or non performance of the Services or otherwise.
29. The Consultant will maintain a Worker’s Compensation Insurance Policy in full force and effect at all times during the term of this Agreement for the full amount of any liability in accordance with any Worker’s’ Compensation Act in Australia.
30. The Consultant retains the Intellectual Property Rights in or in relation to the Contract. The consultant grants to the Client an irrevocable licence to use that Intellectual Property Right for any purpose for which the Services are provided including any subsequent work.
31. The Consultant shall own the copyright and any other Intellectual Property Right in all material produced in relation to the consulting services.
32. Any data generated by the Consultant with respect to the Service delivery of the Agreement will be owned by the Client and may not be distributed to any third party by the Consultant without written consent from the Client.
33. The Consultant may with the consent of the Client publish, either alone or in conjunction with others, articles, photographs and other illustrations relating to the Project.
34. If during the course of providing the Services the Consultant develops, discovers, or first reduces to practice a concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of the Consultant and the Client shall not use, infringe or otherwise appropriate the same without first obtaining the written consent of the Consultant.
35. If during the course of providing the Services the Consultant discovers, develops or first reduces to practice a concept, product or process capable of being patented, then the Client shall be entitled to a royalty free licence to use the same during the life of the works comprising the Project.
36. If a dispute or claim arises between the Client and the Consultant then the party requiring the dispute to be resolved must promptly give the other party written notice identifying and giving details of the dispute or claim.
37. Within five (5) working days of a party receiving notification of a dispute or claim, the respective Representatives of the Client and Consultants shall meet and negotiate in good faith to resolve the dispute or claim.
38. In the event that the dispute or claim has not been resolved amicably within a period of thirty (30) days following the initial meeting of the parties then the matter shall be submitted for mediation in Perth under the proceedings set down by the Institute of Arbitrators and Mediators, Australia. Costs of mediation shall be shared equally by the parties. Nothing in this provision shall prevent the Consultant from instituting legal action at any time to recover monies owing by the Client to the Consultant.
39. Either party, without prejudice to any other rights or remedies it may have may at any time, terminate this Agreement by serving upon the other twenty eight (28) days’ written notice of its intention to do so. If the Agreement is terminated pursuant to this Clause then the Consultant shall be entitled only to payment for its Services up to the date of the notice of termination.
40. The Client may terminate this Agreement if the Consultant is in breach of any term(s) of this Agreement and that breach has not been remedied within twenty eight (28) days (or such longer period as the Client may allow) of a notice requiring the breach to be remedied.
41. The Consultant may, by notice in writing served on the Client, terminate this Agreement if the Client is in breach of this Agreement and the breach has not been remedied within twenty eight (28) days (or such longer period as the Consultant may allow) of the service by the Consultant on the Client of a notice requiring the breach to be remedied.
42. Termination shall be without prejudice to any claim that 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.
43. Subject to Clauses 39 to 42, this Agreement shall continue in force until completion of the Services by the Consultant.
44. The Client and the Consultant each binds itself and its partners, successors and assigns to the other party to this Agreement and to the partners, successors and assigns of the other party, in respect to all rights and obligations of this Agreement.
45. The terms of this Agreement shall supersede all prior agreements, discussions whether verbal or written, implied or otherwise and shall govern the relationship between the Client and the Consultant. The terms of this Agreement are final and may not be altered in any way except by the written agreement by both parties. In the event of any ambiguity in the documents forming this Agreement being raised by the Client, the Consultant shall advise the Client in writing of the interpretation to be followed.
46. If any provision of this agreement shall be determined by any statute or any court having jurisdiction in relation thereto to be illegal, invalid, void or voidable, the legality of the remainder of this Agreement shall not be affected and the illegal, invalid, void or voidable provision shall be deemed deleted here to the same extent and effect as if never incorporated herein but the remainder of this Agreement shall continue in full force and effect.
47. The Client shall not assign, sublet or transfer any right or obligation under the Agreement without prior written approval of the Consultant.
48. All information provided to the Consultant by the Client shall be treated as confidential and may not be disclosed to a third party unless that information is already in the public domain. Each party indemnifies the other in respect to all loss, damage, claim, liability, cost or expense suffered by the discloser arising from any breach of this agreement.
49. If either party shall waive any breach of this Agreement or forebear to enforce any part of it on any one or more occasion, such wavier or forbearance shall not be taken as evidence against that party and shall not preclude that party from subsequently enforcing any part of this Agreement.
50. The Agreement shall be governed by and construed with reference to the laws for the time being in force in the State of Western Australia.
51. Unless otherwise specified in the Agreement or documents collateral to this Agreement, all notices or communications of a contractual nature given in relation to this Agreement by either party to the other party shall be in writing.
52. The Client accepts that the Consultant may use electronic data transfer and/or storage technologies which are not hosted on the Consultant’s own servers.
53. Headings are inserted for guidance only and do no not form part of the Agreement.