1. Standard of Care Senversa will perform the Services to that standard of care and skill to be expected of a consultant who regularly acts in the capacity in which the consultant is engaged and who possesses the knowledge, skill and experience of a consultant qualified to act in that capacity. To the extent permitted by law, no other representation, warranty or guarantee, express or implied is included or intended by Senversa’s services, the Proposal, Agreement or Deliverables. Senversa will use reasonable endeavours to provide Services and Deliverables in accordance with times stated in a Proposal or requested by the Client, but time will not be of the essence and Senversa will not be liable to the Client if such delivery does not occur on time.
2. Insurance Except if the Client has agreed to effect relevant insurance, Senversa must effect and maintain the following Insurances:
a. Public liability insurance in respect of Senversa’s work performed at the Site;
b. Workers’ compensation insurance in relation to Senversa’s employees;
c. Professional indemnity insurance in relation to provision of the Services. The professional indemnity insurance must be for an amount not less than that set out in the Acceptance Form and must be maintained for not less than a period of 5 years. The policy must include provision for one automatic reinstatement of the sum insured.
3. Fee The Proposal indicates whether Senversa will provide the Services for a lump sum price based on a scope of work defined in the Proposal, or on a fees and expenses basis derived from a schedule of rates and estimated level of effort (time). For Services Senversa proposes to perform on a fees and expenses basis, an estimate of the total cost may be provided founded on Senversa’s experience and assessment regarding the scope of work required. This is however an estimate only and the actual costs may vary from any estimate provided. If unexpected or undisclosed conditions are encountered then more or less work may be required to achieve the objectives of the Services. Under these circumstances Senversa will endeavour to advise the Client and seek its approval before undertaking work which exceeds the total cost estimate or lump sum indicated by the Proposal, but failure by Senversa to do so does not affect the Client’s obligation to make payment of Fees in respect of Services provided. Unless specified otherwise in the Proposal or in the Special Conditions section of the Acceptance Form, expenses, disbursements, goods purchased on behalf of the Client, and subcontracted services will be invoiced to the Client at cost plus a 15% handling and procurement fee. The Client authorises Senversa to incur on behalf of the Client such reasonable expenses as Senversa reasonably considers necessary to provide the Services and Deliverables. If any activity is required which is outside the scope of the Proposal, and subject to any specific rates offered in the Proposal, Senversa will charge for such additional work at Senversa’s current standard schedule of rates for personnel.
4. Variations Senversa may at any time amend its standard fees and charges by notifying the Client. If Senversa does so before all Services and Deliverables are complete in relation to a Proposal, the Client may, subject to clause 8, terminate the Agreement with immediate effect by written notice to Senversa.
5. Payment Unless specified in the Proposal, Senversa will provide monthly invoices to the Client for the Services performed. The Client will pay Senversa for the invoiced amount in full within the Payment terms indicated on the Acceptance Form. Senversa may in its absolute discretion charge interest on overdue amounts at a rate of 2% per calendar month, calculated daily and accruing from the date payment became due until the date payment is made. Such interest may compound monthly at Senversa’s sole discretion. Senversa, at its option, may withhold delivery of reports or any other data pending receipt of full payment for services rendered.
6. No Third Party Beneficiaries The Services are provided, and the Deliverables are prepared by Senversa at the request of and solely for the benefit of the Client. No third parties are entitled to rely on any work performed or Deliverables prepared by Senversa as part of the Services for any purpose. The Client shall indemnify and hold Senversa harmless against any liability for any loss or claim arising out of or relating to reliance by any third party on any work performed or Deliverables issued as a result of the Services.
7. Limit of Liability In consideration of potential liabilities which may be disproportionate to the fees to be earned by Senversa, the Client agrees, to the extent permitted by law, to limit the liability of Senversa as follows:
a. Senversa’s liability in relation to the performance or non-performance of the Services, or a failure to comply with a consumer guarantee is limited to (at Senversa’s option) supplying the Services again, or paying the cost of having the Services supplied again.
b. Senversa shall not under any circumstance be liable to the Client in respect of any indirect, consequential or special losses (including loss of profit, holding costs, loss of business opportunity and payment of liquidated sums or damages under any other agreement).
c. Senversa will be deemed discharged from any liability in respect of the Services, whether under the law of contract, tort, or otherwise, on the expiration of one (1) year from the completion of the Services, the date of invoice in respect of the final amount claimed by Senversa, or the termination of this Agreement, whichever is earliest. The Client shall not be entitled to commence any action or claim whatsoever against Senversa or any employee, agent or sub-consultant of Senversa in respect of the Services after that date.
8. Termination Either party may terminate its obligations under this Agreement in the event of a substantial breach by the other party of its obligations and the breach has not been remedied within five Business Days of a written notice requiring the breach to be remedied. Senversa may terminate this Agreement without cause by giving the Client 20 Business Days’ notice of its intention to do so. Senversa may suspend or terminate its obligations under this Agreement in the event of monies payable to Senversa for the Services being outstanding for more than 10 Business Days after the due date for payment. Where performance of the Services being provided rely upon one of Senversa’s employees’ appointment as an Environmental Auditor under the relevant state or territory jurisdiction, Senversa has the right to terminate, without any liability or damages of any kind, any or all Services under this Agreement if the Environmental Auditor ceases to be an employee of Senversa, or ceases to remain appointed as an Environmental Auditor under the relevant state or territory jurisdiction. The Client will pay to Senversa within 10 Business Days of termination the Fees for any Services completed up until the date of termination, and, where Senversa terminates due to breach by the Client or the Client terminates under clause 4, the applicable proportion (as reasonably determined by Senversa) of the Fees for Services part-performed, up until the date of termination.
9. Intellectual Property The Client licenses to Senversa such Intellectual Property Rights in Client Information as are necessary to enable Senversa to perform the Services in accordance with this Agreement. Senversa retains the Intellectual Property Rights created outside the terms of this Agreement and used in performing the Services. Senversa retains all right, title and interest in and to the Intellectual Property Rights in the Deliverables and may use the Deliverables and the Intellectual Property Rights for any purpose. The Client may only use the information in the Deliverables for its internal business purposes.
10. Underground Utilities and Structures Where the Services include disturbance of the subsurface, the Client shall provide Senversa with plans which designate the location of all subsurface structures at the Site. Except where Senversa has been negligent, Senversa is not responsible for, and has no liability to the Client or any third party for any damage caused as a result of Senversa’s disturbance of the subsurface and the Client indemnifies Senversa from and against all loss suffered by Senversa as a result of a claim by any third party in relation to subsurface disturbance or damage to underground utilities and structures.
11. Governing Law This Agreement will be governed by the law of the State or Territory of Australia where the Services are substantially performed and the parties agree to have any disputes heard in the courts and tribunals of that jurisdiction.
12. Amendment Senversa may amend these Standard Terms of Engagement at any time and from time to time by written notice to the Client. The amended terms will apply to all Proposals after the date of such notice.