1. Callaghan and Toth Consulting Engineers shall provide to the client the consulting services (“the services”) described in the accompanying proposal.
2. Callaghan and Toth shall perform the services with a degree of skill, care and diligence normally exercised by consultants in such circumstances. Callaghan and Toth offers the client the opportunity to provide feedback regarding their performance of the services at any time.
3. The client shall provide to Callaghan and Toth, upon commencement and as soon as practicable upon request, all information considered essential to the client’s requirements for the commission of the services, including the location of all existing underground services. Callaghan and Toth shall not be liable for any loss or damage, or any costs or claims of the client, any statutory authority or any third party, arising from or as a consequence of actions undertaken due to incomplete or inaccurate information regarding underground services supplied or omitted to be supplied by the client. By his acceptance of the accompanying proposal, the client agrees to indemnify and forever hold indemnified Callaghan and Toth in respect of all liability which may arise as a consequence of the client’s error or omission.
4. The client shall pay Callaghan and Toth the Fees and the Reimbursable Expenses as set out in the accompanying proposal. Where this Agreement has been entered into or authorised by an Agent (or a person purporting to act as an Agent) on behalf of the client, the Agent and clients shall be jointly and severally liable for payment of all accounts due to Callaghan and Toth under this agreement.
5. All monies payable by the client to Callaghan and Toth shall be paid within 30 days of receipt of a Tax Invoice. Monies not paid within that period shall attract interest from the date of invoice until payment at the rate of 1% per month, plus debt collection fees and any enforcement costs where appropriate. Any monies received form a client on a provisional basis shall be applied to and offset against any monies subsequently owing on Invoice.
6. Any liability of Callaghan and Toth arising out of their performance or non-performance of the services, whether under the law of contract, tort or otherwise, shall be limited to: (a) The cost of rectifying the works the subject of the services, or (b) The amount of One Hundred Thousand Dollars ($100,000.00), whichever is the lesser amount, in the discretion of Toth and Partners.
7. Callaghan and Toth will be deemed to have been discharged from all liability in respect of the services, whether under law of contract, tort or otherwise, upon the expiration of one (1) year from: (a) Their completion of the services; (b) The date of invoice in respect of the final amount for fees owing by the client claimed by Callaghan and Toth pursuant to clause 4; or (c) The termination of the agreement for the supply of services pursuant to clauses 13 or 14 herein, whichever is the earlier (“the liability date”), and the client shall thereafter be prevented from raising any dispute or commencing any action or claim whatsoever against Callaghan and Toth (or any employee, agent or sub consultant of Callaghan and Toth) in any jurisdiction in respect of the services after the liability date.
8. It is acknowledged that the provisions of clauses 6 and 7 herein are subject always to the application of the provisions of Part V of the Fair Trading Act Qld 1989 (as amended) or any other law, which cannot be excluded, restricted or modified by the terms of this agreement.
9. Copyright in all drawings, reports, specifications, bills of quantity, calculations, software data and other documents (“the confidential information”) generated or provided by Callaghan and Toth in connection with its services shall remain the property of Callaghan and Toth unless agreed to or stipulated otherwise.
10. Subject to clause 11, the Client alone shall have a licence to use the confidential information referred to in clause 9 for the purpose of completing the brief, but the Client shall not use, reproduce, publish or disseminate any confidential information for any other purpose without first obtaining the express written authority of Callaghan and Toth Upon a breach of this clause by the Client, Callaghan and Toth shall revoke this licence and reserve the right to terminate this agreement and pursue the client for damages for any loss occasioned by his breach.
11. If the Client is in breach of any obligation to make a payment to Callaghan and Toth, Callaghan and Toth may revoke the licence referred to in clause 10, by notice in writing to the Client, and the Client shall then return or cause to be returned to Callaghan and Toth all confidential information in his possession of the possession of his advisors.
12. Both the Client and Callaghan and Toth shall first attempt to mediate a resolution to any dispute arising. However, should mediation not take place within a reasonable time period or should mediation fail to resolve the dispute, then either party may, without further notice, institute legal action to recover monies owing hereunder or in respect of any other alleged breach of a term of this agreement.
13. The Client may terminate its obligations under this agreement: (a) In the event of substantial breach by Callaghan and Toth of an obligation on their part expressed herein, which breach has not been remedied within 30 days of written notice from the Client to Callaghan and Toth requiring the breach to be remedied, and provided neither party has within this time period requested the appointment of a mediator to mediate a resolution to the alleged breach; or (b) Upon mediation referred to within subparagraph (a) failing to achieve remedy or an acceptable resolution and the passing of the 30 days notice period; or (c) Upon giving Callaghan and Toth 60 days written notice of its intention to do so without reason, subject to the Client paying to Callaghan and Toth all monies due and owing pursuant to Tax Invoice for services rendered up to and including the date of termination, without retention or set off, failing which such notice of termination shall be invalidated.
14. Callaghan and Toth may suspend or terminate its obligations under this agreement: – (a) In the event of – (i) monies payable to Callaghan and Toth hereunder being outstanding for more than 45 days; or (ii) any other substantial breach by the Client of his obligation hereunder, which breach has not been remedied within 30 days of written notice from Callaghan and Toth requiring the breach to be remedied, and provided neither party has within this time period requested the appointment of a mediator to mediate a resolution to the alleged breach; or (iii) Upon mediation referred to within subparagraph (a) failing to achieve remedy or an acceptable resolution and the passing of the 30 days notice period,
(b) Upon giving the Client 60 day’s written notice of their intention to do so without reason, whereupon all monies due and owing pursuant to Tax invoice for services rendered to the date of termination shall be paid in full.
15. If Callaghan and Toth considers it appropriate to do so, they may, with the Client’s prior approval, which shall not be unreasonably withheld, engage another consultant to assist Callaghan and Toth where specialist expertise is required or advisable to perform part of the services.
16. Neither party may assign or transfer any obligation under this Agreement without the written consent of the other. Unless stated in writing to the contrary, no assignment or transfer shall release the assignor from any obligation under this Agreement.
17. No provision of this Agreement shall be read or applied so as 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 the Fair Trading Act Qld 1989 as amended and in force from time to time or any relevant State Act of Territory Ordinance which by law cannot be excluded, restricted or modified. Any provision of this Agreement found to be invalid or unenforceable and offend any provision of current legislation shall not affect the validity or enforceability of other provisions in this Agreement.
18. Where the provision of the services includes the preparation of a report in support of an application by the Client for the approval of his project, no guarantee is given or implied by Callaghan and Toth that a prepared report will ultimately receive approval from the relevant statutory authority. Callaghan and Toth agrees to prepare reports and assist with the preparation of applications adopting a professional standard necessary to advance the interests of the client and facilitate a reasonable prospect of obtaining the project approvals required. Accordingly, payment of fees for these services is to be made within the stated payment terms, and such fee payment bears no relation or otherwise to the success or otherwise of the ultimate outcome of the application.
19. Validation, as defined under AS/NZSIS09001 is not included as part of the Services unless specifically requested and detailed.
20. Callaghan and Toth quoted fees exclude GST or any other value added Government taxes. To allow for these taxes and general wage rises, charge rates will rise by 10%.