1.1. These Terms of Engagement apply to all contracts for the provision of services by the company and should be read in conjunction with the Company’s written proposal or acknowledgement of order. Unless otherwise expressly agreed, these Terms shall apply to the exclusion of any contrary provisions which may appear on any order form or other document issued by the Principal in this contract. They shall apply to any variations which may be agreed or ordered in the scope of the work and to any supplementary work on the project which may be the subject of verbal agreement.
2.1. In the following Terms of Engagement:
• “Company” or “RDM” means Resource Design & Management Pty Ltd.
• “Principal” means the person or organisation to whom the Company is contracted to provide services and who is ultimately responsible for payment.
• “Agent” means a person or organisation (eg. Consulting Engineer, Architect, Solicitor, etc.) who arranges or directs the services on behalf of the Principal.
3. ROLE OF THE PRINCIPAL
3.1. The Principal (or Agent) is requested to provide RDM with (where relevant):
• Written acceptance of our proposal and authority to proceed with the work.
• Any upfront costs or commissioning fees as specified in our proposal or in this contract.
• Approvals for access, name of the site contact and keys.
• Up to date plans of the buildings and/or infrastructure or other information relevant to the brief.
• Any relevant information available regarding former site studies.
4. BASIS OF PROPOSAL
4.1. Unless specifically referred to as a lump sum, our proposal is on a schedule of rates basis wherein our actual charges will be based on the quantities of work performed. Where an estimate of total cost is provided it is based on our understanding of the required scope of work and our expectation of the availability and accuracy of existing cadastral and/or survey marks and sub-surface conditions. The estimate could possibly be exceeded if undisclosed or unexpected conditions are encountered. We will endeavour to complete the work at a cost which is within the estimate as given and will advise you and seek your approval if there appears a need for the estimate to be significantly exceeded. Proposals for ‘lump sum’ are based on the scope of works and hours defined in our letter/email.
4.2. Should any activity be required which is outside the scope of the Principal’s original request of the proposal, the Company will charge for such additional work at the current standard hourly rates for personnel and equipment. Hire of outside services, if necessary, will be charged at cost + 50% of procurement. Reference will be made to the Principal for authority to proceed on this basis.
5. LIMITATION OF OFFER
5.1. Our proposal is expressly conditional on the credit worthiness of the Principal established to our satisfaction. The quoted fee and hourly rates are current for a period of one month from the date of the proposal and will thereafter be subject to variation.
6. TERMS OF PAYMENT
6.1. Tax invoices will be rendered monthly or on completion of the work and are due for payment in full, unless expressly stated in our billing schedule (clause 14 of this contract), within 14 days or as specified on the Tax Invoice.
6.2. All invoices issued are a payment claim made under the Building and Construction Industry Security of Payment Act 1999.
6.3. RDM will charge interest at a cumulative rate of 3.5% per month on any Tax Invoice unpaid after 14 days or the period indicated on the Tax Invoice, together with any costs, legal fees, etc. incurred by default of the Principal to make payment within the required period.
6.4. In most circumstances, an upfront commissioning fee prior to project commencement may be required. This will be described in our billing schedule (clause 14 of this contract) and is payable immediately on our commissioning. Where final payments are required following release of draft reports and / or other documents, the final report and/or other documents will not be released unless payment of all outstanding Tax Invoice has been made.
6.5. Where payment for invoices is not received within the terms of payment projects may be put on hold. Any works completed at that date may then be invoiced as ‘work to date’ and project works suspended until overdue accounts are settled. Additional fees for project management may be incurred should a project be put on hold due to failure to settle within terms.
6.6. Non-payment of fees where the Company has received direct instruction from the Agent will become the responsibility of the Agent. The Agent will be treated as if they are the Principal in such instances.
7. RESPONSIBILITY AND LIABILITY
7.1. RDM will undertake to exercise reasonable skill, care and diligence in accordance with standards ordinarily exercised by members of the profession in similar circumstances.
7.2. The liability of RDM to the Principal in respect of work carried out on the project shall be limited to the resupply of the services (if relevant) or $20,000, whichever is the lesser.
7.3. The Principal agrees to indemnify RDM against claims from the Principal, its agent, contractors, such that the company’s total aggregate liability shall not exceed the amount indicated above.
7.4. No action shall be against the Company at the suit of the Principal after the expiration of six months from the Company’s involvement in the project.
8.1. Copyright in all drawings, reports, specifications, calculations, computer disks, software and other documents provided by the Company shall remain the property of the Company. The Principal alone shall have a licence to use the documents referred to above in connection with the project for which they are prepared, but shall not use or make copies of such documents other than in connection with the project.
8.2. If the Principal is in breach of any obligation to make payment to the Company, Company revokes the licence referred to above and the Principal shall cause to return to the Company all documents referred to above and all copies thereof. The licence extended to the Principal for use of the above documents shall only be valid where the Principal has provided payment in full for all invoices and accounts sent to the Principal in relation to the project.
8.3. Where payment in full has not been made to the Company, the Principal has no right to any information contained within the project document(s) or results and may not use the documents listed above for any purpose, either related to the project or for any other use.
9.1. Any disputes between the Company and the Principal, shall first be the subject of mediation, provided that this provision shall not prevent the Company from instituting legal action at any time to recover monies owing.
9.2. The relationship between the Company and the Principal, and any relationship arising pursuant to this document shall be governed by the laws of the State or Territory from which our proposal letter/email has been prepared.
10. COMPUTER SOFTWARE
10.1. Unless otherwise specifically agreed, all computer software systems, spreadsheets, and computer models developed by the Company in relation to the project remain solely the property of the Company. These can not be used or copied by the Principal or any other person or organisation without a written licence agreement between the Company and the Principal.
11. CONSTRUCTION SITE SERVICES
11.1. Where the Company provides site inspection or testing services during construction, such inspection is aimed at ensuring or documenting compliance with the specification or with appropriate engineering standards. The provision of these services, including the provision of verbal advice by site personnel shall not in any way relieve the contractor of his responsibility under any contract.
11.2. Where verbal advice or approval is given by our site personnel, such advice or approval is given in good faith, but the Company will accept responsibility for such advice or approvals (in accordance with clause 7) only where confirmed in writing.
11.3. All instructions must be confirmed in writing. No responsibility will be accepted for verbal instructions not followed up in writing.
11.4. RDM will not be liable or accept responsibility for the receipt of an erroneous or incomplete transmission of instructions or information from the Principal or Principal’s representative.
11.5. The Principal warrants at all times that information provided to RDM for construction purposes will be up to date and will be the latest (amended if applicable) information to be used for set-out purposes.
11.6. RDM will not be liable in any way if the information received on disk or by any electronic means and used for construction purposes (when RDM has not been advised to the contrary by the author of that information), varies with information in hard copy which may be available on site and on which the contractor might be relying, also without informing RDM.
11.7. RDM will not be liable if they have not been informed of alterations to construction drawings which differ from information received electronically when such information has not been given to RDM either in a timely manner or by a suitably qualified person.
11.8. Before any work of any kind or any construction or demolition proceeds (if the work is on a construction site), the Principal agrees to set up a clear, unambiguous procedure for giving RDM ongoing instructions in relation to design alterations transmitted electronically, site instructions on set out procedures or changes to the nominated site personnel.
12. DISPOSAL OF INFORMATION
12.1. Information relating to this instruction will be kept for a minimum seven (7) year period from the date of the initial instruction. RDM reserves the right to destroy any or all information held at the expiration of that period.
13. GENERAL MATTERS
13.1. If circumstances arise which require the services of a specialist or expertise outside the field of RDM, RDM may with the prior approval of the Principal engage the appropriate consultant. The consultant shall be engaged at the Principal’s expense and on his behalf. The Principal’s approval shall not be reasonably withheld.
13.2. Nothing contained in this Clause shall prevent RDM from employing within this fee such persons or companies as it may deem appropriate to assist it in the performance of the service.
13.3. Where RDM is required to pay fees to an authority on the Principal’s or Agent’s behalf an administration fee equivalent to 10% of the amount paid will be passed onto the Principal. The minimum administration fee charge is $50 ex GST.
14. PROJECT BILLING SCHEDULE
14.1. Project payments shall be made in accordance with the following schedule which is exclusive of GST. Where project is delayed by the Principal and/or their agent for longer than two weeks RDM reserves the right to invoice works to date.
Timing of Tax Invoice and Terms
Commissioning fee due immediately for each engaged item where the fee estimate exceeds $1,000. % 50 Fee $tbc
On receipt of draft report for each engaged item. % 50 Fee $tbc
Commissioning fee due immediately for each engaged item where the fee estimate is less than $1,000. % 100 Fee $tbc
Additional Works – hourly rates. % 100 Fee $tbc
15. ACCEPTANCE AND AUTHORISATION
15.1. Please confirm your acceptance of our fee proposal and Terms of engagement by completing the attached Confirmation of Instruction and returning the signed document by email to email@example.com or postage to Resource Design & Management Pty Ltd, PO Box 4430, COFFS HARBOUR, NSW 2450.
15.2. Any requirement to pay commissioning fees should be paid immediately to Resource Design & Management Pty Ltd. In this regard we encourage payment directly to the following bank account:
(A/C Name: Resource Design & Management Pty Ltd: BSB 012 572 A/C No. 835754214