Terms & ConditionsThe agreement that governs our engineering services

1. 1.1

   The agreement between the parties comprises the proposal document, any applicable Scope of Works and these terms (hereafter Agreement) and commences on the earlier of the date that the Client, having been provided with a copy of the Agreement, either (i) indicates acceptance of the Agreement, or (ii) provides a signed copy of the proposal or Scope of Works or these terms, or (iii) directs “IA” to perform (or to continue to perform after having received a copy of the Agreement) the Services.

2. 1.2

   The term of the Agreement continues until such time as the Project has reached completion and all monies due under the Agreement have been paid to “IA” by the Client, unless terminated earlier in accordance with these terms and conditions (Term).

1. 2.1

   Conditional upon payment of the Fee, “IA” must provide the Services while exercising a reasonable level of skill, care and diligence in the performance of same as would be expected from a suitably qualified and competent engineer, design practitioner and/or designer (as applicable to the Services being performed).

2. 2.2

   If “IA” is engaged to perform any Services acting independently of the Client, the Client authorises “IA” to act independently and not as the Client’s agent. To the extent that any Services are to be performed by “IA” as agent for the Client, the Client appoints “IA” as their agent for that purpose.

3. 2.3

   “IA” may notify the Client in writing if “IA” becomes aware of a material change in the Scope of Works, timing or cost in the Services that was not known at the commencement of the Agreement (Variation Notice). A Variation Notice must include any adjustment to the Fee or Delivery Date arising from the change and identify the cause of the change.

4. 2.4

   The Client agrees not to unreasonably refuse to approve a Variation Notice. Once approved, a Variation Notice constitutes an agreed variation to the Scope of Works, Fee and Delivery Date under this Agreement.

5. 2.5

   Subject to any variations, “IA” must deliver the Services required by the Scope of Works by the Delivery Date.

6. 2.6

   “IA” may subcontract the performance of part or all of the Services but will remain responsible for the performance of the Services. “IA” may assign the benefit of this Agreement without the consent of the Client and at the sole discretion of “IA”.

1. 3.1

   Occasionally, due to technical considerations, additional time may be required to complete a task. This extension is directly related to ensuring the quality, safety, and precision of the calculations or processes involved. If the additional time needed exceeds 30% of the originally agreed timeline and the Client chooses not to proceed, they must inform “IA” in writing via the company’s email, stating their decision to discontinue the work. In such instances, the company is obligated to refund the payments received up to that stage.

2. 3.2

   This explicitly excludes any claims for interest on the Fee paid and any Fees paid for work outlined in the Scope of Works associated with other milestones, provided the Delivery Dates for those milestones were previously met by “IA”.

3. 3.3

   If such a refund is made, that refund is deemed to constitute full and final settlement of any claims for Loss suffered by the Client in connection with the delay. If the Client does not formally notify the company of their decision to withdraw, it will be deemed that they consent to the continuation of the work. In such cases, no refunds will be provided, and all terms of the agreements and the proposal document will remain fully enforceable.

1. 4.1

   If “IA” issues a document as part of providing the Services and that document contains engineering plans or design information, “IA” warrants that an employee or subcontractor of “IA” other than the original author of that document has reviewed the document for accuracy prior to the final version being issued to the Client.

1. 5.1

   The Client must, as soon as possible after the commencement of this Agreement, provide all information and assistance as “IA” reasonably requests, including any Client Materials, access to any site relating to the Project, or any other information. Any delay in providing information will be grounds for a Variation Notice to be issued.

2. 5.2

   The Client remains responsible for the accuracy, adequacy and suitability of the Client Materials, and “IA” is entitled to rely upon the Client Materials provided.

3. 5.3

   The Client must notify “IA” in writing of a nominated person who will be the primary point of contact for “IA” under this Agreement.

4. 5.4

   The Client must take out and maintain all insurance policies providing such coverage as a prudent person or entity would reasonably be expected to maintain for the Project and must provide proof of such policies upon request.

5. 5.5

   The Client cannot assign the benefit of any part of this Agreement without “IA”’s written consent, which may be withheld in “IA”’s sole discretion.

1. 6.1

   The Client must pay the Fee set out in any payment claim delivered to the Client or the Client’s nominated representative by “IA” within the lesser of the time set out in the invoice or otherwise within seven (7) days, and without applying any cross-claim or set-off of any kind.

2. 6.2

   The parties agree that for the purposes of the Building and Construction Industry Security of Payments Act 1999 (NSW) (or analogous legislation in another State) (the Act): (a) this Agreement is a consultant contract; and (b) any payment claim issued by “IA” is a payment claim for the purposes of the Act.

3. 6.3

   The Client must pay any reimbursable expenses reasonably incurred by “IA” in connection with the Services where those expenses have been pre-approved by the Client in writing.

4. 6.4

   “IA” is entitled to be paid simple interest on any sum due under this Agreement at the rate of 8% per annum above the highest Commonwealth Bank Overdraft rate applicable during the Term. Where a sum is paid in accordance with the terms of the invoice, “IA” waives any entitlement to interest on that sum.

5. 6.5

   The Client indemnifies “IA” in relation to any Loss incurred by “IA” in recovering any amount payable by the Client, including debt collection costs and legal costs on a full indemnity basis, arising due to a breach of this Agreement by the Client.

6. 6.6

   From time to time “IA” may, in its sole discretion, apply a discount to any invoice. Such a discount is provided on account only and may be reversed at the discretion of “IA”, including retroactively.

1. 7.1

   The parties agree to treat the Confidential Information confidentially. A party must not, and must ensure that any person who receives the information as a result of the party’s acts or omissions does not, at any time use such information except to acquire or check information in connection with this Agreement, or to perform obligations under this Agreement.

2. 7.2

   This obligation does not apply where: the person who provided the information first agrees in writing; the information is disclosed to a professional adviser, banker or financial adviser who undertakes not to disclose it and to use it only for advising or financing the party; the law requires the disclosure or use; or the information is generally available (other than because of a breach of a confidentiality obligation).

3. 7.3

   Any obligation in this Agreement to treat information confidentially survives completion or termination of this Agreement for any reason.

1. 8.1

   Nothing in this Agreement operates to assign, license or otherwise transfer ownership of any Intellectual Property in Client Materials or “IA” Materials existing before the date of this Agreement, except as provided in this clause.

2. 8.2

   “IA” grants to the Client a non-exclusive, worldwide, revocable, royalty-free right and licence (without the right to grant sub-licences) to use, adapt, translate, modify, exploit and copy all the Project IP for the purposes of the Project, and such of the “IA” Material as is reasonably required for the Client to obtain the benefit of the Project.

3. 8.3

   “IA” warrants that the “IA” Material and Project IP created by “IA” do not infringe the Intellectual Property rights of any other party, and indemnifies the Client for any loss arising from a breach of that warranty, save to the extent the loss is caused by the Client’s acts or omissions.

4. 8.4

   Where the Client provides Client Materials to “IA”, the Client grants a non-exclusive, non-transferable, irrevocable and assignable licence to “IA” to use them solely to the extent and for the period necessary to perform its obligations. The Client warrants that the Client Materials do not infringe the rights of any third party and indemnifies “IA” accordingly.

1. 9.1

   If a transaction under this Agreement involves a Taxable Supply and the consideration is not stated to be inclusive of GST, then, in addition to that consideration, the Recipient must pay the Supplier a further amount equivalent to any GST payable in respect of that supply, payable when the consideration becomes payable or when the Supplier issues a tax invoice, whichever is later.

2. 9.2

   Where the Supplier becomes aware of an adjustment event in respect of a Taxable Supply, the Supplier must notify the Recipient in writing. Within fourteen (14) days the Recipient must pay any increase in the GST amount (or the Supplier must pay any decrease, as the case may be).

3. 9.3

   If a penalty, interest or additional tax is imposed on the Supplier because of the Recipient’s default (including delay) in complying with this clause, the Recipient must pay that amount to the Supplier within fourteen (14) days after the Supplier provides evidence of it.

1. 10.1

   The aggregate liability of “IA” to the Client or any third party in relation to the Services, whether arising under contract, tort (including negligence), in equity, under statute or otherwise, is limited to the Maximum Liability.

2. 10.2

   To the extent permitted under law, after the expiration of one (1) year from the end of the Term, the Client releases “IA” from all liability in respect of the Services and is not permitted to commence any legal proceedings arising out of or in connection with this Agreement.

3. 10.3

   To the greatest extent permissible at law, “IA” is not liable for, and the Client releases “IA” from, claims for Loss arising from (a) any shortfall in insurance coverage held by the Client (including deductibles); or (b) any use by the Client of the Client Materials or “IA” Materials for any purpose other than that for which they were prepared or provided.

4. 10.4

   “IA” makes no representation or warranty in relation to the suitability or stability of the Project site or any existing structures on the Project site, and is not liable for any Loss arising in relation to existing structures howsoever arising.

5. 10.5

   Under no circumstances will “IA” be liable for any claim for expectation damages, loss of profit and/or consequential loss. Nothing in this Agreement excludes or limits either party’s liability for death or personal injury, fraud, breach of confidentiality, or any liability that cannot be limited or excluded under applicable law.

1. 11.1

   “IA” may suspend the provision of the Services immediately if: (a) the Client does not pay any amount due in accordance with the Payment Terms; (b) the Client communicates an intention not to be bound by this Agreement; or (c) “IA” reasonably suspects that the Client is unable to pay its debts as they fall due.

2. 11.2

   A suspension will not constitute a repudiation of this Agreement by “IA”; “IA” acting reasonably may determine when the suspension ends; “IA” is entitled to a reasonable extension of the Delivery Date and increase in the Fee arising in connection with a suspension; and “IA” is not liable for any Loss arising from the suspension.

1. 12.1

   If the Client (a) fails to pay any amount due; (b) breaches its obligations under this Agreement; or (c) a suspension has been in effect for ten (10) business days, then “IA” may serve a Breach Notice. If “IA” fails to diligently advance the Services or to meet a Delivery Date without an agreed extension, the Client may issue a Breach Notice.

2. 12.2

   If the party in receipt of a Breach Notice fails to remedy the matters set out in it within ten (10) business days, the party that issued it may terminate this Agreement upon written notice. Either party may terminate immediately if the other suffers any event of insolvency.

3. 12.3

   Where the Client fails to adhere to the technical requirements stipulated by “IA” — including the Building Code of Australia (BCA), SEPPs, LEPs, DCPs, BASIX, Australian Standards, local council regulations, the National Construction Code (NCC) and local authorities — “IA” reserves the right to terminate this Agreement with immediate effect, without any penalty, liability or cost to IA Engineering & Consultancy Pty Ltd.

4. 12.4

   Upon any termination: the Client must pay any Fee outstanding or claimed following termination and is not entitled to any refund of any Fee paid to date; the Client must return any “IA” Materials; any licence granted to the Client terminates; and “IA” may retain any Client Material or property in its possession until outstanding monies are paid, thereafter returning the material to the Client.

1. 13.1

   Nothing in this Agreement is intended to create a relationship of partnership, joint-venture or employment between the parties. This Agreement contains the whole of the agreement between the parties and supersedes any prior negotiations, proposals, discussions and representations.

2. 13.2

   If any provision becomes prohibited or unenforceable, it will be severed and rendered ineffective so far as is possible without modifying the remaining provisions, which will continue in full force and effect. If a fundamental provision would be severed, the parties shall instead meet promptly to consider an amendment.

3. 13.3

   No part of this Agreement can be varied other than in writing signed by all parties. No failure to enforce any provision, or the granting of any time or indulgence, will be construed as a waiver.

4. 13.4

   Any notice must be in writing to the email or postal address identified for the parties, and is deemed delivered twenty-four (24) hours after an email is sent, or four (4) business days after sending by post.

5. 13.5

   This Agreement is governed by the laws of New South Wales, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales. Any dispute shall first be submitted to mediation in accordance with the Resolution Institute Mediation Rules. Nothing prevents either party from seeking urgent injunctive relief.

In this Agreement:

1. 14.1

   “Breach Notice” means a written notice setting out the nature of the breach and requiring the remedy of that breach within the longer of the period set out in the notice or ten (10) business days.

2. 14.2

   “‘IA’ Materials” means all materials in which the Intellectual Property is owned by “IA” or any of its Related Bodies Corporate, or by a third party that has granted a licence to “IA” to use those materials.

3. 14.3

   “Client Materials” means any material owned, licensed or controlled by the Client or any of its Related Bodies Corporate (other than “IA” Materials).

4. 14.4

   “Confidential Information” includes all Client Materials and “IA” Materials, all Intellectual Property, the business and financial information of both parties, and any other material created in the course of this Agreement whether marked “Confidential” or not.

5. 14.5

   “Delivery Date” means a date by which the Scope of Works or a milestone is to be completed, as varied in accordance with this Agreement. “Fee” means the agreed fee to be paid to “IA” in respect of the Services as set out in any quote.

6. 14.6

   “Intellectual Property” means all worldwide intellectual property rights including copyrights, design rights, trademarks, service marks, trade secrets, know-how, inventions, database rights, patents, domain names, neighbouring rights, moral rights and all other proprietary rights, whether registered or not.

7. 14.7

   “Loss” means any damage, cost, expense or loss howsoever arising, including loss of revenue, loss of business opportunity, loss of custom, loss of goodwill and opportunity cost.

8. 14.8

   “Maximum Liability” means ten million dollars ($10,000,000). “Maximum Professional Indemnity” means three million dollars ($3,000,000).

9. 14.9

   “Project” means the project to which the Scope of Works applies. “Project IP” means any title, interest and Intellectual Property in materials identified in the Scope of Works as documents the Client must receive the right to use. “Services” means services to be provided under this Agreement by “IA” to the Client.

1. 15.1

   This Agreement has been exclusively drafted for “IA” and is protected by copyright law. Any unauthorised use of this document, under any circumstances, is strictly prohibited.