Consultancy Terms & Conditions

1.     Definitions; Agreement, Parties, Services, & Acceptance

The Parties referred to in these Consultancy Terms & Conditions include the Client (who commissions services from the Consultant either in writing, or verbally) and the Consultant; Damage Control Project Management Pty Ltd ABN: 16 655 564 471. The Agreement relating to the contracted services is defined by the proposal, tender return, or quotation provided by the Consultant; these Consultancy Terms and Conditions, and instructions provided from the Client to the Consultant during the delivery of the services. The Services are those identified in the proposal, tender return, or quotation. Receipt of the Client’s direction to proceed with the Services constitutes acceptance of the Agreement and these Consultancy Terms & Conditions.

2.     Governing Law

This Agreement shall be governed by Queensland law, in Australia, and the Parties agree to submit to the jurisdiction of the Courts.

3.     Consultant’s Obligations

The Consultant shall exercise reasonable skill, care, & diligence in the provision of the Services, & shall only be liable if and to the extent that the Consultant has been deemed negligent in such provision by Court of Law. The Consultant shall use reasonable endeavours to perform the Services in accordance with any program agreed with the Consultant, and shall have no liability for any failure, delay, or consequence thereof of the provision of the Services outside of the reasonable control of the Consultant. Should such a delay occur or persist, the Client shall pay the Consultant in accordance with Clause 12, as well as allowing reasonable time extensions. Instructions received by the Client which necessitate work outside the Consultants typical office hours (8:30am to 5pm Monday to Friday, excluding public holidays) may incur additional costs, per Clause 13.

4.     Client’s Obligations

The Client warrants that it has the right, necessary licences, and approvals to have the Services performed, and shall indemnify & hold harmless the Consultant from & against all consequences of any failure in this respect. The Client shall provide to the Consultant promptly & without charge any & all; instructions, decisions, approvals, access to site/property, information & data as may be required to provide the Services, including any & all relevant documentation associated with previous consultants. The Client shall not engage, either directly or through a third-party, the services of a person who was in the employ of the Consultant at the time of the Agreement, during or for a period of six (6) months following the delivery of the Services. The Client shall notify the Consultant immediately should the Clients contact details change.

5.     Third Party Rights

Except where specified in Clause 11, nothing in this Agreement confers on any third Party, Client’s Agent, subsidiary or associated entity, any benefit, or any right to enforce any term of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999.

6.     Assignment

Neither Party shall assign, sub-let, or otherwise transfer any obligation or benefit under this agreement without prior written consent of the other Party. Such consent shall not be unreasonably delayed or withheld, and such assignment shall be by absolute legal assignment only, and only to a party taking on the entire role of the Party concerned in relation to the project.

7.      Contractors & Subcontractors

The Consultant reserves the right to sub-contract services to third parties as the Consultant deems necessary to complete the Services without notifying the Client. Subconsultant liability is the sole responsibility of the Consultant, unless otherwise agreed by the Client. The Consultant is responsible for coordinating and delivering the Subconsultant’s documentation and deliverables unless an alternative responsibility is notified in writing, i.e.: via a secondment arrangement.

8.     Publicity

The Client consents to non-confidential project related images, information, and documentation being used for advertising & publishing purposes by the Consultant.

9.     Documentation

Editable files received by the Client from the Consultant are to be considered as informal, draft, not-for-construction, & for information purposes only, unless the Consultant specifies otherwise. Each Party shall maintain the confidentiality of documents & information received from the other Party, and neither shall disclose or release these documents & information except where obliged by law or authorised by the other Party. The Parties shall each retain the copyright and moral rights for their works including documentation, software, programs etc. (the Documents). The Parties will not use the documents for purposes outside of those nominated (or as could be reasonably inferred from) the Agreement, and the Consultant shall not be liable for any use made of the Documents other than these same purposes. Should the Client default on payment of any fees due under this Agreement, the Consultant revokes the licence herein granted until such payments are received. If the Client ceases to trade or becomes unreasonably unresponsive, IP rights held by the Client under the Agreement revert to the Consultant.

10.  Site Operations

Should site visits be required, the Consultant shall not be deemed to have assumed control or responsibility for the site, the site's operations, or the personnel on it. The Consultant shall take reasonable endeavours to minimise damage to site property & will not be held liable for damage incurred beyond the reasonable control of the Consultant. The Client shall confirm with the Consultant and notify all personnel on site of the Consultants presence, the extent (if any) to which the Consultant is authorised to supervise their work, and that the presence (or otherwise) of the Consultant does not relieve them of their safety responsibilities & obligations under other contracts, systems, or agreements.

11.  Liability

The Client shall indemnify and hold harmless the Consultant from and against liquidated damages and any claims, liabilities, costs, and/or expenses in excess of the limit calculated below. If the Client considers that there has been any breach of the Agreement, the Client will look to the Consultant only for redress, and not to any individual engaged or employed by the Consultant including any Directors or Officers. The Client agrees not to pursue any claims in contract, tort or for breach of statutory duty (including negligence) against any individual working for the Consultant in conducting its obligations under the Agreement at any time, whether named expressly in the Agreement or not. The Client acknowledges that such individuals are entitled to enforce this term of the Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999, in perpetuity. Notwithstanding any other provisions of this Agreement, the total liability in aggregate of the Consultant under or in connection with this Agreement, whether in contract or in tort, in negligence, or for breach of statutory duty, or otherwise, shall be limited (in aggregate) to the lesser of the contracted value of the Consultant’s commission, one (1) million dollars, or the amount of insurance maintained by the Consultant or Consultant's Subconsultant/s for the region & territory applicable to the project. The liability of the Consultant hereunder for any claim or claims shall be further limited to such sum as the Consultant ought to pay having regard to the Consultants responsibility for loss and damage suffered by the Client on the basis that:

1. All Consultants and all other Parties providing design, management or financial services, labour, materials, plant or equipment, for incorporation in the project or for executing the project, or any part thereof shall be deemed to have provided contractual undertakings on terms no less onerous than that of the Agreement (whether or not they have been so provided to the Client) in respect of the provision of their services, labour, materials, plant or equipment in executing the project or any part thereof; and,

2. There are no limitations on liability nor joint insurance or coinsurance provisions between the Client and any other Party as referenced in this Clause; and,

3. All such other Consultants and all such Contractors and sub-Contractors have paid to the Client such proportion which it would be just and equitable for them to pay having regard to the extent of their responsibility.

No action or proceedings under or in connection with the Agreement, whether in contract or in tort, in negligence, or for breach of statutory duty, or otherwise, shall be commenced against the Consultant after the expiry of one (1) year from the date of completion of the Services, or such earlier date as may be prescribed by law. The liability of the Consultant hereunder for any claim or claims shall exclude any liquidated damages, loss of use, loss of opportunity, loss of profit or any other indirect losses that may occur by any Party. The Consultant will not be liable for any part of the Consultant’s advice or deliverable that is conditional upon any and all assumptions made by the Consultant in circumstances where further information or events make part of the Consultant’s advice incorrect.

12.  Remuneration

The Client shall pay the Consultant for services rendered. For the purpose of the Agreement the Client is deemed to have received the Consultant’s invoice on the date identified by the Consultants invoice. Amounts identified in the Agreement are deemed to exclude any taxes (include GST, VST, national or local levies) unless specified otherwise. No back-charges or retentions will be made against amounts nominated in the Agreement unless specified otherwise. The hourly rates nominated in the Agreement may be changed by the Consultant without notifying the Client, provided any raise does not exceed 30% of those nominated in the Agreement. The Consultant shall use reasonable skill and care in preparing estimates or forecasts of work where requested by the Client. Estimates or forecasts provided by the Consultant to the Consultant’s personnel outside of a formal written quote, tender return, or proposal document do not constitute an offer of fixed fee for the Services, and will be interpreted as non-binding. The Client acknowledges that the actual cost of delivering the Services may be affected by factors outside either Parties’ reasonable control.

13.  Additional Remuneration

Excepting where additional work is required as a result of a failure of the Consultant to exercise reasonable skill, care, & diligence, the Client shall make additional payments to the Consultant if, and to the extent that, additional work is required or costs are incurred from the Consultant due to variation, delay or disruption to the Services originating from the Client, or from circumstances outside of the reasonable control or predictability of the Consultant.

14.  Payment Obligations

The Consultant will deliver invoices electronically to the Client’s nominated email address/s. The Client shall pay each invoiced amount including any applicable GST within fourteen (14) days of issue. The invoiced amount shall be paid by the Client within the agreed payment term regardless of any dispute regarding the Services or the invoice. The Consultant reserves the right to cease delivery of the Services should invoiced amounts fall overdue. Invoices that fall overdue will be subject to the Consultant’s Arrears Management Procedure as nominated on the invoice.

15.  Termination

Either Party may terminate the Agreement by providing thirty (30) days written notice. The Client will remunerate the Consultant for Services provided and costs incurred up to the date of termination, as well as costs of any commitments reasonably entered into by the Consultant to ensure delivery of the Services as agreed. The accrued rights or claims of either Party will be unaffected by the Termination of the Consultant’s appointment under the Agreement.

16.  Dispute Resolution

In the instance of a dispute, either Party must follow QBCC, QCAT or other relevant juristic guidelines for dispute resolution. Disputes must be outlined to the other Party in writing prior to utilising legal avenues for resolution, and a minimum of five (5) business days must be allowed for response. Disputes must be taken through Mediation/Arbitration, except in instances where either Party has defaulted on a previous commitment to resolve an issue under this agreement, or where either Party is likely to default on a commitment made via Mediation/Arbitration. Contracts made under this Agreement should be considered to have been made in Queensland, Australia, unless where agreed in writing otherwise.

17. Captured Data & Photography

The Client agrees to allow the Consultant to capture photo, video, and other data (including data captured from vehicle, drone, and UAV) as may be required during the delivery of the services.

Photo, video, and other data captured by the Consultant during the delivery of the services that are not critical to the delivery of the services themselves shall remain the property of the Consultant.

18.  Severability

The remainder of these Consultancy Terms & Conditions will remain valid should certain elements become void or unenforceable. Should a Court of relevant jurisdiction find any term or Clause of these Terms and Conditions or of the Agreement to be invalid, unenforceable, or illegal, the term or Clause in question may be revised to the extent allowed in the opinion of the Court to render the Agreement enforceable or valid, so as to preserve the Agreement and its intent to the fullest possible extent.