STANDARD TERMS OF ENGAGEMENT

1. GENERAL MATTERS AND DEFINITIONS

   1. These terms of engagement shall be read in conjunction with the proposal and the letter of engagement. Together these documents shall form the basis of a Contract of Services between the Consulting Engineer (NJM Design Pty Ltd) and the Client.
   2. The Proposal means the letters and other documents prepared by the Consulting Engineer and submitted to the client to describe the scope of works being undertaken, the amount of the fee and reimbursable expenses. The ‘agreement’ means the entire contractual agreement between the parties.
   3. The Client shall be defined as the party disclosed in the Letter of Acceptance and that party shall be the party to which invoices shall be sent and held responsible for the payment of such invoices. No work shall commence until a completed Letter of Engagement has been signed and returned to the Consulting Engineer.

 

 

2. ROLE OF THE CONSULTING ENGINEER
   1. The Consulting Engineer shall provide to the client the consulting services described in the proposal that forms part of the agreement.
   2. In performing the services, the Consulting Engineer shall exercise the degree of skill, care and diligence normally exercised by members of the engineering profession performing services of a similar nature in accordance with the ethics of the engineering profession.
   3. The Consulting Engineer shall refrain from assigning or transferring any obligation relating to its provision of the services without the written consent of the Client, which consent shall not be unreasonably withheld. However, the Client acknowledges that the services or any part thereof may be carried out by such agent, representative or employee of the Consulting Engineer as the Consulting Engineer may decide.
   4. The Consulting Engineer shall retain ownership and all legal and equitable rights (including but not limited to copyright) to all documentation produced that relates to the services including all intellectual property rights.
   5. The Consulting Engineer shall have an entitlement to additional fees where the scope of the services being provided by the Consulting Engineer and/or by any agent, representative or employees of the Consulting Engineer is increased or varied pursuant to any agreement between the parties.

 

 

3. ROLE OF THE CLIENT
   1. The Client may appoint a person to act as his representative and give notice to the Consulting Engineer of the name of the person so appointed. The Client agrees that the person appointed shall have authority to act on behalf of the Client for all purposes in connection with the agreement.
   2. The Client shall as soon as practicable make available to the Consulting Engineer all information, documents and other particulars relating to the Client’s requirements for the Project.
   3. The Client will notify the Consulting Engineer promptly of any change in the Client’s service requirements or of any variation in the scope of the works for which the services will be provided. If any such change or variation represents a material alteration of the contract, then the Consulting Engineer will not be bound to accept such change or variation, and in that event, the Consulting Engineer may at its option immediately terminate the contract by giving written notice to the Client to that effect (without prejudice to any existing rights of the Consulting Engineer under the contract).
   4. The Client shall at its own expense obtain all necessary approvals and permits that are required to allow the Consulting Engineer to provide the services (including without limitation, council, and planning approvals). The Client acknowledges that it is its responsibility to obtain all such necessary approvals and permits, and the Consulting Engineer shall not be held responsible for any delays that may arise in this regard.

 

 

4. PAYMENT TO THE CONSULTING ENGINEER
   1. Unless otherwise agreed all works shall be invoiced when completed (or progressively on a monthly basis for projects extending beyond 30 days), and all monies shall be due and payable within 14 days of invoice or as set out in the fee proposal. Claims for payment shall be made in accordance with the Building Industry Security of Payment Act (2002).
   2. Unless a dispute is raised within 14 days of the date of the invoice the invoice shall be deemed to be correct and payable. Any adjustment made to an invoice shall be deemed to be as of the date of the original invoice.
   3. The client agrees to penalty interest at the CBA overdraft indicator rate plus 5%p.a. The interest shall be calculated on daily balances from the due date of payment of the account by the Client.

 

 

5. PART 5 – SCOPE OF LIABILITY
   1. The liability of the Consulting Engineer to the Client arising out of the performance or non-performance of the Services, whether under the law of contract, tort or otherwise, shall be limited to those damages which are directly caused by the Consulting Engineer.
   2. Non-performance of any part of the services must be notified in writing to the Consulting Engineer within 28 days of the completion of the services. In that event, the Consulting Engineer may at its option either complete the services as appropriate, or the Consulting Engineer may instead pay for the reasonable costs of completion or rectification of the services.
   3. The Consulting Engineer shall not be liable (and any agent, employee or representative of the Consulting Engineer shall not be liable) to the Client, or to any related party or associate of the Client, for any of the following in the Consulting Engineer’s execution of services:
      1. Any act, omission or default by the Client, and/or by any party engaged by the Client or acting on behalf of the Client.
      2. Any change, addition or alterations to the services made by any other party (including the Client and/or any related party or associate of the Client) without the approval of the Consulting Engineer.
      3. The accuracy of cost estimates, or the interpretation of information or analysis supplied by another consultant.
      4. Loss of interest, earnings, or profit by the Client or any associate or related party of the Client or any other indirect or consequential damage, even if same is the result of negligence on the part of the Consulting Engineer. The Client expressly indemnifies and exempts the Consulting Engineer, its Directors, and staff from any such claim or demand.