Terms of Business.
1. Providing the Services
1.1 Whelans will exercise reasonable care, skill and diligence in providing the Services.
1.2 The timing quoted for the Services commences when Whelans receives all information required to complete the Services including confirmation of acceptance of our Fee Proposal and Terms of Business.
1.3 Quoted dates are estimates only and Whelans will use all reasonable endeavours to meet quoted dates, but will in no event be liable to the client for delay in performance of the Services however caused. Delay shall not constitute a breach of contract and any delay by Whelans does not relieve the Client from accepting or paying for the Services.
1.4 The Client will provide correct and accurate documents and directions and unless otherwise agreed, Whelans will rely on and treat the documentation and directions provided by the Client as accurate and correct.
2.1 If Whelans or the Client becomes aware of any matter which will change or has changed the scope or timing of the Services then they will as soon as practicable give notice to the other party of the matter and as far as practicable, details of the change.
3.1 Whelans and the Client must each have insurance cover for any loss or damage in adequate amounts and for the risks each bears under this Agreement as required by statute or otherwise as is reasonable in the circumstances.
4.1 Whelans shall invoice the Client for the Fee and any Reimbursable Expenses on a monthly basis and at completion of the Services.
4.2 Whelans will be entitled to an additional fee if:
(a) Whelans performs services different or additional to those specified in the Fee Proposal; or
(b) the nature of the Services changes; or
(c) the costs associated with the provision of the Services is increased due to the Imposition of, or Increase in, the amount of any government or statutory authority tax (other than income tax), fee or charge; or
(d) the Services are suspended other than by reason of a breach by Whelans.
4.3 Unless otherwise stated in the Fee Proposal, Whelans invoice will be payable within 30 days of the date of issue.
4.4 If the Client has any outstanding accounts with Whelans then Whelans is entitled to;
(a) charge interest to the Client at the rate of 12% per annum on overdue amounts from the due date of payment.
(b) terminate the Agreement and/or suspend the provision of all services on all projects until the date of payment in full of all overdue amounts.
4.5 If the Client disputes any part of an invoice, the Client must pay the undisputed portion in full and notify Whelans in writing within 14 days the reasons for disputing the remaining portion.
4.6 In the event that any part of a disputed amount is subsequently determined to be due, the Client must pay the amount withheld, and the Client may be required to pay interest in accordance with clause 4.4(a).
4.7 If the performance of the Services is delayed by an act, omission or default, of the Client or its employees, agents, consultants or contractors, then Whelans may require the Client pay Whelans for all reasonable costs and expenses incurred by Whelans as a result of the delay.
4.8 In determining the Fees and Reimbursable Expenses, the Client shall pay any Goods and Services Tax that may be payable in the respect of the provision of the Services.
5.1 The maximum liability of Whelans arising out of the performance or non-performance of the Services shall be an amount equal to the value of the Services already performed as at the date the liability arose.
5.2 Whelans shall not be liable to the Client for:
(a) the acts or omissions of other contractors or consultants engaged by the Client (including those engaged by Whelans as the agent for the Client);
(b) any alterations or additions to the Services made without the express approval of Whelans
(c) the accuracy of the cost and time estimates;
(d) any loss, damage or claim to the extent that such loss, damage or claim was caused or contributed to by the Client or its employees, agents, consultants or contractors.
5.3 Whelans shall not be liable to any third party for any claim whatsoever arising out of or in connection with the Services.
5.4 Whelans warranty for the Services shall be limited to supplying the Service again.
6.1 Whelans and the Client must not disclose or allow to be disclosed to any person, and information regarding each other or the Project without the prior written consent of the relevant party.
6.2 Whelans and the Client must only use information of each other for the purpose for which it was disclosed.
6.3 Whelans shall be entitled to retain a copy of all documents related to the Project for its records, subject to its continuing obligations under this clause.
7.1 Copyright and the intellectual property in all drawings, records, processes, products and other documents produced by Whelans shall remain vested in Whelans.
7.2 Provided the Client pays Whelans in full for the Fee and any Reimbursable Expenses, the Client shall have a license to use the documents referred to in clause 7.1 for the purpose of completing the Project.
8.1 The Client may by notice in writing to Whelans terminate the Agreement if:
(a) Whelans is in breech of the terms of the Agreement and the breach has not been remedied within 14 days (or longer period as the Client may allow) of the notice requiring the breach to be remedied; or
(b) the Client gives written notice of at least 14 days.
8.2 Whelans may by notice in writing to the Client suspend the provision of the Services or terminate the agreement if:
(a) the Client is in breach of any other obligations under the Agreement and the breach has not been remedied within 14 days (or longer period as Whelans may allow) of the notice requiring the breach to be remedied; or
(b) Whelans gives written notice of at least 30 days; or
(c) Whelans the Client (or the Client’s parent company) becomes insolvent or appears to be unable to pay its debts.
8.3 If the Agreement is terminated for any reason other than a breach of the Agreement by Whelans then the Client shall pay Whelans for the services carried out prior to the date of termination and all other costs and expenses incurred by Whelans as a result of the termination.
9.1 Unless the context otherwise requires:
“Agreement" means the agreement between the Client and Whelans including these Terms of Business and any other documents referred to within these Terms of Business;
“Client” means the entity identified in the Fee Proposal or in the absence of a written Fee Proposal an entity in receipt of these Terms of Business which requests or instructs Whelans to perform Services;
“Fee Proposal” means the correspondence with the Client outlining the Services, Project and/or Fee whether expressed in writing, verbally or by other means;
“Fee” means the amount or hourly rates specified in a Fee Proposal or where no amount is specified, the amount calculated pursuant to the hourly rates current at the time of the provision of the Service;
“Project” means the project specified in the Fee Proposal but if not specified, the project in respect of which the Client has engaged Whelans to provide the Services;
“Reimbursable Expense” means a Reimbursable Expenses specified in the Fee Proposal but if not specified, all costs and expenses (in addition to the Fee) that are incurred by Whelans in the performance of the Services;
“Services” means the services specified in the Fee Proposal that are to be performed by Whelans and such other services as Whelans agrees to perform for the Client from time to time;
“Whelans” means Whelans (WA) Pty Ltd
9.2 If any part of the Agreement is contrary to law, it will not affect the enforceability of other provisions, or parts of provisions.
9.3 The Agreement shall be governed by the laws of Western Australia.
10.1 These Terms of Business will apply to all Services and Fee Proposals provided by Whelans to the Client regardless of whether the instructions of the Client are written, verbal or by other means.
11.1 These Terms of Business will be binding upon the Client executing a Fee Proposal or upon the Client instructing Whelans to commence the provision of Services after having previously been provided with a copy of these Terms of Business.
Document - CP-R90
Ver 1.0 - 5 th May 2006