Agreement means the agreement between Contract Australia Pty Ltd (trading as Construction Expert Witness) and the Client, governed by these terms and conditions.
Client means the party specified in the Particulars.
Commencement Date means the date specified in the Particulars.
Completion Date means the date specified in the Particulars.
Consequential Loss means and includes loss of profit (or anticipated profit), loss of revenue, loss of opportunity, loss of goodwill, loss of contracts, loss or corruption of data, loss of anticipated savings or other costs which are considered to be beyond the ordinary measure of loss.
Fees means the amount to be paid by the Client to Construction Expert Witness in respect of the Services as specified in the Particulars.
Insolvency Event means:
Intellectual Property Rights means:
Project Intellectual Property Rights means all Intellectual Property Rights brought into existence by or on behalf of Construction Expert Witness in the course of performing the Services.
Services means the services specified in the Particulars.
2.1 Construction Expert Witness agrees to provide the Services to the Client on the terms set out in this Agreement.
2.2 In the performance of the Services, Construction Expert Witness will exercise reasonable skill and care in conformity with the normal standards of industry practice.
2.3 The Services must comply with all relevant legislation, codes and requirements of authorities.
3.1 The Client shall:
4.1 Construction Expert Witness will perform the Services as detailed in the quote provided for the Fee.
4.2 The Client will pay Construction Expert Witness the Fee in accordance with this clause 4.
4.3 Construction Expert Witness may make a claim for payment in respect of the Services performed at the time set out in the Particulars.
4.4 The Client must, within 14 days of receipt of a payment claim from Construction Expert Witness, pay to Construction Expert Witness the amount set in the payment claim.
4.5 If any moneys due and payable to Construction Expert Witness remain unpaid after the expiration of the period referred to in clause 4(c), then interest shall be payable thereon from but excluding the expiration of the period within which they should have been paid to and including the date upon which the moneys are paid. The rate of interest shall be 10% per annum.
5.1 A reference in this clause 5 to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 is, unless the context indicates otherwise, a reference to that term as defined or used in that Act.
5.2 Unless otherwise stated, the Fee is GST exclusive.
5.3 A recipient of a taxable supply made under this Agreement must pay to the supplier, in addition to the consideration for the taxable supply, any GST paid or payable by the supplier in respect of the taxable supply.
5.4 The recipient must pay the GST to the supplier at the same time as the consideration is payable.
5.5 Each party making a taxable supply under this Agreement must issue a tax invoice to the other party for each taxable supply at or before the time it makes the taxable supply.
5.6 Each party must issue an adjustment note to the other party as soon as it becomes aware of an adjustment event related to a taxable supply by it under this Agreement.
6.1 Construction Expert Witness will commence carrying out the Services on the Commencement Date and complete the Services by the Completion Date, or if no time is stated, within a reasonable period of time.
6.2 If Construction Expert Witness will be delayed in performing the Services, Construction Expert Witness will be entitled to an extension of time for that period of delay.
7.1 A party may give the other party written notice of a proposed variation, in respect of the Services.
7.2 If the Client gives notice of a proposed variation pursuant to this clause 7, Construction Expert Witness shall as soon as practicable after receiving such notice, notify the Client whether the proposed variation can be effected together with, if it can be effected, Construction Expert Witness’s estimate of the cost of the proposed variation.
7.3 If Construction Expert Witness gives notice of a proposed variation pursuant to this clause 7, such notice shall specify Construction Expert Witness’s estimate of the cost of the proposed variation.
7.4 Construction Expert Witness shall, as soon as possible, price each variation using the following order of precedence:
7.5 That price shall be added to or deducted from the Fees (as applicable).
8.1 Construction Expert Witness’s total liability under the Agreement shall not exceed the total dollar amount of the Fees paid to Construction Expert Witness by the Client pursuant to this Agreement.
8.2 To the extent permitted by law and except as otherwise provided in the Agreement, Construction Expert Witness shall not be liable to the Client:
8.3 The Client shall indemnify and keep indemnified Construction Expert Witness against any direct loss, damage, cost or expense that Construction Expert Witness may suffer and against all demands, actions, suits and causes of action that may be made against Construction Expert Witness arising out of:
9.1 Construction Expert Witness will, prior to commencing the Services, effect and maintain the insurances set out in the Particulars.
9.2 If requested by the Client before the date of this Agreement, Construction Expert Witness will provide the Client with certificates of currency for the insurance required to be effected and maintained under this Agreement.
10.1 The Client and Construction Expert Witness retain their Intellectual Property Rights respectively created outside of this Agreement and used in performing the Services.
10.2 The Client acknowledges and agrees that all Project Intellectual Property Rights remain the property of and vest in Construction Expert Witness.
10.3 Construction Expert Witness grants to the Client a non-exclusive perpetual irrevocable royalty-free licence to use anywhere for any purpose such of the Project Intellectual Property in respect of deliverables provided to the Client in the course of providing the Services or is necessary for the Client to enjoy the benefit of the Services.
11.1 This Agreement may be terminated by either party immediately by giving written notice if:
11.2 If this Agreement is terminated under clause 11(a), then each parties’ right will be the same at common law as if the terminated party had repudiated this Agreement and the terminating party had accepted and elected to treat this Agreement as at an end and recover damages.
11.3 Without limiting any other rights of Construction Expert Witness, in the event of termination by Construction Expert Witness pursuant to clause 11(a), then the Client shall, without limitation, pay to Construction Expert Witness upon demand, the sum of all costs and expenses reasonably incurred by Construction Expert Witness in anticipation of completing the Services.
11.4 The termination of this Agreement under clause 11(a) does not affect any of the parties’ other rights and remedies.
12.1 Neither party may assign, novate or subcontract its rights and/or obligations under this Agreement without the prior approval of the other party (which will not be unreasonably withheld).
12.2 Construction Expert Witness may subcontract part of the Services provided that the Client has provided prior written consent and that the terms of any subcontracts are not inconsistent with this Agreement.
13.1 A notice (and other documents) will be deemed to have been given and received:
13.2 Notwithstanding this clause, notices in relation to default, insolvency or termination, or dispute may only be sent by hand or registered mail.
14.1 In the event of a dispute, either party may deliver a written notice to the other party which states that it is a notice of dispute under this clause 14(a) and provides details of the dispute.
14.2 Within 14 days of delivery of a notice of dispute, representatives of the parties who have authority to resolve the dispute must meet in good faith and use their best endeavours to resolve the dispute.
14.3 Communications between the parties during that meeting are not admissible as evidence in any legal proceedings unless the communications are in writing and signed by both parties.
14.4 If the dispute is not resolved within 14 days of the representatives meeting in clause 14(b), the dispute shall be referred to the senior executives of the parties who must meet in good faith with a view to resolving the dispute.
14.5 If the parties are unable to resolve the dispute within 14 days of the dispute being referred to the senior executives pursuant to clause 14(d), the dispute shall be referred to a mediator and the mediation shall be conducted in accordance with the Resolution Institute’s Mediation Rules.
14.6 No party may commence proceedings in court in relation to a dispute unless a notice of dispute has been delivered in relation to that dispute and the party has used its best endeavours to comply with clause 14(a) – (e).
14.7 Nothing in this clause 14 limits a party’s rights to seek urgent injunctive or urgent declaratory relief.
15.1 No waiver by Construction Expert Witness of any default or breach or the non-acceptance by Construction Expert Witness of any repudiation of this Agreement by the Client shall affect the rights of Construction Expert Witness in respect of any further or continuing default or breach or any subsequent repudiation by the Client.
15.2 In the event that any provision (or part thereof) contained in this Agreement is rendered void, invalid or unenforceable in any jurisdiction then such provision (or part thereof) shall be severed from this Agreement without affecting the validity of the provision in any other jurisdiction or the remaining provisions in that jurisdiction.
15.3 Where there is more than one Client, then the liability of each shall be joint and several.
15.4 In this Agreement:
15.5 This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter and contains all of the representations, undertakings, warranties, covenants and agreements of the parties.
15.6 This Agreement shall be governed by and construed in accordance with the laws stated in the Particulars.
15.7 Any agreed amendments or variations to this Agreement must be in writing and signed by both parties.
15.8 Each of the parties must:
