Terms of Agreement

INTRODUCTION

These Terms of Agreement and the above Table of Fees and Charges apply to work carried out by Delta Environmental Consulting.

The 'Company' when used in this document shall mean Delta Environmental Consulting and the servants and agents thereof, who are providing the services.

The 'Client' shall mean and include the body or person with whom the Company contracts for or in relation to the performance of, or the provision of, goods or services. In the event that the Client is an incorporated body, 'Client' shall include related corporations as defined in the Corporations Law.

'Subcontractor' shall mean and include:

SCOPE OF RESPONSIBILITY

All goods or services provided by the Company are subject only to these Terms except where necessarily incorporated by statute, no other term, condition or warranty shall be incorporated herein unless specifically agreed in writing by the Company.

The Company undertakes to exercise reasonable care in accordance with standards ordinarily exercised by members of related professions generally who practice in the same locality and under similar conditions. There shall be no liability whatsoever in respect of any failure to exercise a degree or level of care beyond such reasonable care.

The Client will indemnify and hold the Company harmless against all claims, costs and demands (including in respect of negligence) by third parties in respect of the service concerned.

The Client acknowledges that in the event of the Company having failed to exercise reasonable care, the Company's liability, if any, shall be absolutely extinguished after the expiration of twelve months from the date of the Company's invoice in respect of the service.

In the event that the Company is liable to the Client for failure to exercise reasonable care, such liability shall be limited to the greater of:

  • the amount of the fee actually paid by the Client to the Company for the service concerned (to a maximum of $10,000); or
  • any other amount agreed in writing between the Client and the Company.
  • Despite any other Clause, where section 74 of the Trade Practices Act applies in respect of the service concerned, the Company's liability, if any, is limited to:

  • the supplying of the service again; or
  • the payment of the cost of having the service supplied again.
  • Under no circumstances, whether as a result of any act, neglect or default or otherwise howsoever, shall the Company have any liability for or in relation to any work, reports, information, plans, designs or specifications supplied or performed by any third party, including a third party engaged by or at the suggestion of the Company.

    The Client acknowledges that:

  • the Company does not supervise the work of others in the case of work undertaken by others pursuant to directions from the Company. The Company is responsible for exercising reasonable care in giving the directions, but is not responsible for the manner in which the directions are carried out;
  • the copyright in all documents prepared by or at the request or direction of the Company shall remain the property of the Company;
  • samples will be retained by the Company for at least 3 months after which they will be disposed of unless the Client has requested in writing that the Company retain samples for a longer period; and
  • contaminated soil collected by the Company during the conduct of services shall remain the properly of the Client until properly disposed of according to the Clients instructions.
  • For the purposes of this Clause and without limiting the previous clause, the Client acknowledges that the Company is contracting as principal for and on behalf of its servants, agents and Subcontractors. The servants, agents and Subcontractors of the Company shall not be liable in respect of any loss or damage suffered by the Client as a result of goods or services provided by the Company, nor for any consequential loss or damage suffered by any third party. The loss or damage referred to shall mean and include loss or damage caused by the negligence or wilful act or default of the Company, its servants, agents and Subcontractors or others whether or not such loss or damage is foreseeable or contemplated by the Company;

    Unless advised otherwise by the Client in writing, the Company may use information regarding the project which is the subject of this Agreement in any promotional material it may prepare or use.

    GENERAL

    Disputes

    In the event that a dispute should arise relating to theperformance of the services to be provided under this Agreement and should that dispute result in litigation it is agreed where the Company prevails that it shall be entitled to recover all reasonable costs incurred in the defense of the claim, including staff time, court costs, legal fees assessed on a solicitor and client basis and other claim-related expenses.

    Termination

    This Agreement may be terminated by either party upon seven (7) days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof. Such termination shall not be effective if that failure has been remedied before expiration of the period specified in the written notice. In the event of termination the Company shall be paid for services performed to the termination notice date, plus reasonable termination expenses. In the event of termination, or suspension for more than three (3) months prior to completion of all reports contemplated by this Agreement, the Company may complete such analyses and records as are necessary to complete their files and may also complete a report on the services performed to the date of notice of termination or suspension. The expenses of termination or suspension shall include all fees and costs of the Company in completing such analyses, records and reports. If the Company is prevented by circumstances beyond its direct control from performing the services the Agreement shall end without prejudice to the accrued rights of either party. The Agreement shall either survive the death or insolvency of the Client and his rights and obligations shall pass to his successors, receiver, administrator or liquidator or the Company may elect to immediately terminate the services and all fees and costs to the date of termination shall be due and payable as a secured creditor against the tangible assets of the Client.