O2M Standard Terms and Conditions
1. Definitions and Interpretations
Consultant WA Marine Pty Ltd (ABN 84 168 014 819)
Client As stipulated in Attachment 2.
Proposal Letter or report outlining the understanding of the project, proposed scope and methodology and fees associated with the project, and these standard terms and conditions. The proposal constitutes an offer for services.
Agreement On acceptance of the proposal by the client, the client will be regarded as have entered into a contractual agreement with the consultant. This agreement is the final agreement between the parties in connection with the transaction, replacing any pre-printed or other terms in any purchase order, invoice or other document issued by either party. The agreement may not be amended or varied by any other subsequent terms or conditions imposed by you without, prior written approval and signature by an authorised officer of O2 Marine.
Project As defined in the proposal by the scope, methodology and fees.
Variations Changes to proposed scope, fees or timing to a project after commissioning and before completion.
1.1 Reference to:
a) The singular includes the plural and vice versa
b) “including” and similar expressions are not words of limitations
c) Reference to you, yours, their or other variations refer to the client.
d) Reference to we, ours or other variations refer to the Consultant
e) Reference to days are calendar days unless otherwise specified.
f) Headings are for convenience only and do not form part of this agreement or its interpretation
g) All fees listed exclude GST except in those instances where GST is explicitly included in the fee.
2. Role of Consultant
2.1 The consultant shall comply with all instructions given by the client in respect to this agreement (including instruction which have the effect of modifying or terminating this agreement).
2.2 The client will not be responsible for fees or charges incurred when the consultant has acted in contrary to clause 2.1.
2.3 The consultant is engaged as an independent contractor and not as an agent, employee, or as any other type of relationship.
2.4 The consultant will nominate a project manager as the primary contact for the project. The project manager will be responsible for the timely, cost effective provision of deliverables.
3. Role of Client
3.1 Confirm that the consultants understanding of works and proposed scope address the clients’ requirements by reviewing the proposal and standard terms and conditions and providing appropriate authority to commence works.
3.2 The client shall make available to the Consultant information, documents, maps and other particulars relating to the Client’s requirements for the services in a timely manner.
3.3 The client shall make appropriate arrangements to enable the Consultant to gain access to properties as necessary to enable the Consultant to perform the services.
3.4 The client shall provide advice to the Consultant if changes to the scope or timing of the project are requested.
4. Commissioning
4.1 Acceptance of the proposal may be made by any one of the following ways:
a) The client shall fax, email or post a completed copy of Annexure 2 (project commissioning form) to the Consultant
b) Providing written or email instructions after receiving the proposal
c) Contacting us (verbally or otherwise) and advising of your acceptance
4.2 Without derogating from the above, we prefer that you accept in the way set out in 4.1a to ensure all appropriate contract and account details are accurately captured, and a full written record can be maintained.
4.3 This proposal is valid for 14 days from the issue date and then subject to confirmation.
5. Payment for Services
5.1 The consultant may require payment of the proposed fee at commissioning, or full payment on acceptance of watermarked draft deliverables (prior to release of final deliverables).
5.2 The client shall pay to the consultant fees as stipulated in the Proposal. Fees will be progressively invoiced on a monthly basis, after completion of identified milestones or following project completion whichever is sooner, strictly on 14 day terms
5.3 Disbursements (including, but not limited to laboratory fees, equipment hire, travel costs and sub consultant fees) will attract a surcharge of 15%. Expected disbursements may be invoiced one billing period in advance.
5.4 Moneys not received within the agreed payment terms shall incur a fee to cover finance costs and additional administrative costs associated with this debt. This fee shall be equal to 3% of the outstanding money owed, and will be levied initially on the first day after payment was due , and monthly thereafter until the clients account is fully settled.
5.5 The client will be liable for third party or legal costs be incurred by the Consultant in recovering outstanding monies.
5.6 If the client disputes the whole or any portion of the amount claim in an account, the Client shall pay the portion of the amount stated that is not in dispute, and shall notify the Consultant in writing of the reasons for disputing the outstanding amount within 5 days of receipt of invoice, else invoice is deemed accepted. Any claim shall then be dealt with as per Section 7 of the Standard Conditions.
6. Variations
6.1 The client may request a variation to the services after acceptance of the proposal. The consultant may accept or reject this request.
6.2 If the consultant accepts a request for variation, notice of proposed changes to scope and fee will be provided to the client for consideration and acceptance as per Section 4.
6.3 The consultant may require a variation to the services and/or fee to complete the project in the event changes are required due to circumstances outside the Consultants immediate control. A written notice of proposed changes to scope and fee will be provided to the client for consideration and acceptance as per Section 4.
7. Dispute Resolutions
7.1 In the unlikely event that a dispute between the Client and Consultant, the parties agree that they will proceed in the following manner;
a) In the first instance the Client and the Consultant’s (or representatives) shall attempt to resolve the dispute by negotiation.
b) If, in the opinion of either party, the offending party has not carried out its obligations to correct the dispute in seven (7) days, the offended party shall, by notice in writing to the offending party, provide details of the specific obligations that have not been carried out.
c) If, after seven (7) days from the date of such notice, the offending party fails to remedy such default the matter shall be referred to the Brisbane Dispute Resolution Branch.
d) The cost of arbitration proceedings pursuant to this Agreement shall be borne by the parties as the arbitrator may direct.
7.2 Condition 7.1 shall not affect the consultant’s rights to deal with delinquent payments as per condition 5 of the standard terms and conditions.
8. Termination of Agreement
8.1 Agreement is taken to be completed after draft deliverables have been reviewed provided and accepted by the client.
8.2 The consultant may terminate this agreement immediately and without penalty for any just cause, or if the client:
a) doesn’t pay invoices within the nominated terms
b) isn’t able to agree on a variation to fees required under Section 6.3 of the standard terms and conditions
c) fails to provide us instruction or information either requested in the proposal, or arising throughout the project in a reasonable time
d) fails to accept advice provided by the consultant
e) asks us to act unethically.
8.3 The client may terminates or suspend the agreement, however the client will be liable for all professional fees, fees for other items, expenses and disbursements incurred by the consultant up to the termination or suspension date, together with a cancellation fee equal to 15% of the uninvoiced project value.
9. Intellectual Property
9.1 The Consultant shall retain the copyright and all intellectual property rights in all documents and material it produces. Subject to payment of the Fee, the Consultant shall grant the Client a licence to use those document and materials for the purposes of the project.
9.2 If the Client is in breach of any obligation to make a payment to the Consultant, the Consultant may revoke the licence referred to in clause 9.1, and the Client shall then cause to be returned to the Consultant all documents referred to in clause 9.1 and all copies thereof.
10. Limits to Liability
10.1 The liability of the consultant 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 the estimated fees payable to consultant described in the attached proposal. Should a fee not be nominated in the proposal, this limit shall be set at $50,000.
10.2 The consultant shall be deemed to have been discharged from all liability in respect of the Services, whether under the law of contract, tort or otherwise, on the expiration of one year from the completion of the Services, and the Client (and persons claiming through or under the Client) shall not be entitled to commence any action or claim whatsoever against the consultant (or any employee of the consultant) in respect of the Services after that date.
10.3 The consultant does not give any warranty nor accept any liability in relation to the performance or non-performance of the Services except to the extent, if any, required by law or specifically provided for in this Agreement. If apart from this Clause any warranty would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law hereby excluded.
10.4 Nothing herein, contained shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods or services pursuant to this Agreement of all or any of the provisions of Part V of the Trade Practices Act 1974 (as amended) or any relevant State Act or Territorial Ordinance which by law cannot be excluded, restricted or modified.
11. Severance and Acknowledgements
11.1 In the event that any part of this agreement is found to be void or unenforceable for any reason, the remaining parts shall remain in force.
11.2 In commissioning the consultant, you acknowledge that you have read and understood this proposal (including standard terms and conditions), and that you accept the payment terms and relevant fees associated with late payment.
12. General
12.1 The Client agrees to allow O2 Marine to use its company logo for marketing purposes, and the use of its company name and a brief project summary on the O2 Marine website (confidential project details will not be disclosed), unless directed otherwise.
