Terms and Conditions

Our Terms and Conditions of engagement are set out below.

PROVISION OF SERVICES

  1. ESC Consulting shall provide to the Client the consulting services described in the quotation provided (the “Services”).
  2. In providing the Services, ESC Consulting shall exercise a reasonable degree of skill, care and diligence as is generally exercised by competent environmental consultants in similar circumstances.
  3. The Services will be performed at either or both the site of the project (the “Site”) or at other places reasonably required by ESC Consulting and/or the Client. The Client must provide safe and reasonable access to the aforementioned locations to allow ESC Consulting to provide the Services.

PROVISION OF INFORMATION

  1. The success of the services is dependent on your timely co-operation, including:
    1. Providing the materials and information we reasonably require from time to time for the services;
    2. Cooperation from your employees, consultants and advisors; and
    3. Making decisions promptly, to facilitate the performance of the services.
  2. Fees have been calculated on the assumption that all information, documents and other particulars relating to the Client’s requirements for the project necessary for ESC Consulting to carry out the Services will be made available to ESC Consulting at no charge in electronic copy.
  3. ESC Consulting is entitled to rely on such information, documents and other particulars as are provided by the Client and the Client warrants that the information is accurate and correct.

PERMISSION TO PROCEED

  1. In order to proceed with this project, ESC Consulting requires authorisation confirmed by signing the Client Authorisation Form at the end of the quotation and returning it to ESC Consulting.

CONSULTANCY FEES

  1. The Client shall pay to ESC Consulting the Fee and Reimbursable Expenses as set out in the quotation. GST at the current rate will be payable in addition to these amounts.
  2. Time for payment of our fees and expenses shall be within 21 days of the date of ESC Consulting’s invoice.
  3. If payment of any invoice is not received within this period, ESC Consulting reserves the right to charge interest at a rate per annum equal to the Unsecured Personal Overdraft Rate as most recently published by the Australian Financial Review, plus 1% per annum, after the due date of the invoice.
  4. Where our fees are not paid within 21 days we may suspend provision of all services until all sums due are paid in full.
  5. Where the Services are delivered over a time period greater than one (1) year, the Fee will increase by 5% or CPI (whichever is greater) of the total agreed fee upon each annual anniversary of the fee acceptance. The increased fee will be due and payable by the Client to ESC Consulting in accordance with this Agreement.
  6. If ESC Consulting considers it appropriate to do so, it may with the Client’s approval which shall not be unreasonably withheld, engage other consultants to assist ESC Consulting in specialist areas. The Client accepts full responsibility for all monies payable to such other consultant.

LIABILITY

  1. To the maximum extent permitted by law:
    1. Subject to paragraphs (b) and (c) below, and provided the Client notifies ESC Consulting as to the nature of any issues with the Services within a 1 year period from the completion of the Services, ESC Consulting’s liability to the Client arising out of or in connection with this Agreement, whether under the law of contract, in tort, in equity, under statute or otherwise, shall be limited in aggregate to the lesser amount of:
      1. The supplying of the relevant Services again; or
      2. The payment of the cost of having the Services supplied again.
    2. ESC Consulting is not liable to the Client in respect of any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement).
    3. ESC Consulting will use its best endeavours to maintain Professional Indemnity insurance coverage for the Services for a period of 1 year from completion of the Services.
    4. Should ESC Consulting’s insurance policy conditions change at any time during or after the completion of the services and in particular with respect to retrospective exclusions, the Client will be required, upon written notification of the exclusion, to indemnify ESC Consulting from any claims relating to the excluded work type(s) for the service conducted in retrospect.
    5. ESC Consulting shall not be liable to any party including the Client and its agents and contractors for:
      1. The acts, omissions or defaults of other parties engaged by the Client including subconsultants engaged by ESC Consulting; and
      2. Any changes, alterations or additions to the Services made by others without the written approval of ESC Consulting.

INTELLECTUAL PROPERTY

  1. Subject to the Client complying with its obligations under the Agreement, ESC Consulting grants to the Client a non-exclusive, royalty-free and irrevocable licence to use (and allows others to use) any intellectual property (including all drawings, reports, specifications, bills of quantity, calculations and other documents, including “works” as defined in the Copyright Act 1968 (Cth) created or produced by ESC Consulting) arising out of provision of the services (“IP Rights”) for the purposes of completing the Project. As between the Client and ESC Consulting, the ownership of the IP Rights vests in ESC Consulting. ESC Consulting agrees not to use the IP for any other purpose without the client’s prior approval. ESC Consulting retains Moral Rights unless otherwise agreed.
  2. Neither the client nor ESC Consulting shall disclose to third parties or use for any purpose (other than providing or benefiting from the services) any information provided by the other unless:
    1. Required by law;
    2. The information is already generally known to the public; or
    3. The other consents to the disclosure.
  3. All documentation and materials containing confidential information provided by one party to the other shall be returned upon request.

DISPUTE

  1. Any dispute or difference (“Dispute”) between the Client and ESC Consulting may be notified by a party to the other party and the parties shall:
    1. Firstly meet to negotiate in good faith to seek resolution of the Dispute within 14 days of the notification of the Dispute; and
    2. Attend mediation, administered in accordance with the Institute of Arbitrators and Mediators Australia Rules for the Conduct of Commercial Arbitrations, provided that this provision shall not prevent ESC Consulting from instituting legal action at any time to recover moneys owing by the Client to ESC Consulting.

TERMINATION OF WORK

  1. The Client may terminate its obligations under this Agreement:
    1. In the event of substantial breach by ESC Consulting of its obligations hereunder, which breach has not been remedied within 30 days of written notice from the Client requiring the breach to be remedied, or
    2. Upon giving ESC Consulting 60 days written notice of its intention to do so.
  2. ESC Consulting may suspend or terminate its obligations under this Agreement in the event of:
    1. Monies payable to ESC Consulting hereunder being outstanding for more than 45 days; or
    2. Other substantial breach by the Client of its obligations hereunder, which breach has not been remedied within 30 days of written notice from ESC Consulting requiring the breach to be remedied, or
    3. Upon giving the Client 60 days written notice of its intention to do so.