The following are the Terms and Conditions of Engagement under which Tingmore Structures (“Tingmore“) and their subsidiaries will carry out the work (the “Services“), which is outlined in our fee proposal (the “Agreement“) referencing these Terms and Conditions. These Terms and Conditions are generally in accordance with those set out by the Association of Consulting Engineers Australia. If anything in these Terms and Conditions are found to be unenforceable, illegal or void, then it is severed and the rest of the Agreement remains in full force.

1. OBLIGATIONS OF PARTIES

1.1      The Client is as detailed in the Agreement, and that Client shall be responsible for the payment of the fees as outlined in the Agreement. The Client shall inform Tingmore if any of the Client details vary subsequent to the signing and acceptance of the Agreement.

1.2     The Client shall, at its own cost, as soon as practicable, provide to Tingmore all information, documents and other particulars relating to the Client’s requirements for the project and the site as are necessary for Tingmore to carry out the Services. Tingmore is entitled to rely on such information, documents and other particulars.

1.3     The Client shall promptly obtain all necessary access to the site, approvals, authorities, licenses, permits and consents necessary to enable Tingmore to perform the Services.

1.4     If the Client becomes aware of any matter that will change the scope, character, quality, sequence or timing of the Services, the Client shall promptly notify Tingmore of the matter.

1.5     The Client shall give or cause to be given to Tingmore timely directions, decisions, information and instructions necessary to enable Tingmore to perform the Services.

1.6     Neither party may assign, transfer, sublet or novate this Agreement or any obligation arising under it without the written consent of the other. Unless stated in writing to the contrary, no assignment, transfer or subletting shall release the assignor from any obligation under this Agreement.

1.7     In the interpretation of this Agreement, no rule of construction applies to the disadvantage of one party on the basis that it put forward this Agreement or any part of it.

2. ENGAGEMENT AND TERMINATION

2.1      In preparing the Agreement, Tingmore has relied upon the information which has been provided by the Client up to the date of the Agreement.

2.2     Tingmore shall provide the Client consulting engineering services described in the Agreement. In providing the Services, Tingmore shall exercise the degree of skill, care and diligence normally exercised by consulting engineers in similar circumstances.

2.3     The Service provided by Tingmore does not include services outside its area of expertise or outside its normal range of activity (excluded areas include, without limitation, design and documentation of formwork, shop drawing preparation, design of precast panels for lifting and handling, demolition and design of temporary works).

2.4     The Client expressly authorises Tingmore to act as agent on behalf of the Client for the purpose of making any application or appeal to relevant authorities. For example, liaison with local council with regards to the submission and approval of drainage plans.

2.5     The Client shall brief Tingmore by providing all information concerning the Client’s requirement for the commission.

2.6     The Client shall pay an additional fee based on hourly rates to Tingmore for changes to services and/or documentation when such changes are the result of the Client’s request or are due to circumstances outside the control of Tingmore.

2.7     In the instance where a geotechnical (soil) report is provided, the soil investigation and report must be carried out by an adequately insured and experienced geotechnical engineer. It is the Client’s responsibility to ensure that the geotechnical engineer is adequately insured and experienced. Tingmore will not accept any responsibility or liability for designs reliant on soil reports that are defective or non-compliant.

2.8     Site inspections generally include, but are not limited to, external and internal consultant meetings, and site coordination meetings. If a site meeting is required, the Client shall provide a minimum of 48 hours notice to Tingmore. Tingmore does not conduct statutory site inspections (e.g. foundation, footing reinforcement, framing, etc.) unless explicitly requested and quoted for.

2.9     If Tingmore considers it appropriate to do so, it may, with the Client’s prior approval, which shall not be unreasonably withheld or delayed, engage another consultant to assist Tingmore in specialist areas. The consultant shall be engaged at the Client’s risk, cost and expense, and on its behalf.

2.10    The Client may terminate the Agreement in the event of: (a) a substantial breach by Tingmore 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 (b) upon giving Tingmore 30 days written notice of its intention to do so.

2.11     Any written notice of termination by the Client must be expressly accepted in writing by an authorised representative of Tingmore. The Client will still be liable to pay for all work conducted up to the cancellation of the Agreement, the amount of which will be determined at the reasonable discretion of Tingmore.

2.12    Tingmore may suspend the performance of the Services or any part of the Services or terminate the Agreement in the event of: (a) monies payable to Tingmore hereunder being outstanding for more than 60 days, (b) other substantial breach by the Client of its obligations hereunder, which breach has not been remedied within 30 days of written notice from Tingmore requiring the breach to be remedied, or (c) upon giving the Client 30 days written notice of its intention to do so.

3. PAYMENTS, NON-PAYMENTS AND PENALTIES

3.1      The client shall pay to Tingmore the fee for providing the Services and the reimbursable expenses (including GST) as set out in the Agreement.

3.2     The Client shall pay any reasonable adjustments to the agreed fees (including GST) as may be agreed between the parties, both acting reasonably, to reflect the additional costs, expenses, liabilities, losses or other amounts incurred or suffered by Tingmore in the performance of the Services arising out of or in connection with any event or matter beyond Tingmore’s control.

3.3     Tingmore may claim payment, by submitting an invoice at the times set out in the Agreement, or as mutually agreed with the Client, or if no time is set out, monthly in arrears.

3.4     The Client must pay to Tingmore, without set-off or deduction, the amount payable under this Agreement for the Services provided during the relevant period within 14 days of the date of invoice.

3.5     In the event of an overdue invoice, and at the total discretion of Tingmore, the following penalties may be applicable: (a) an administration fee of 10% of the overdue amounts may be accrued to the outstanding balance to account for additional administration burden, and (b) interest shall be accrued on the total overdue amount, on a compounding and weekly basis. The applicable commercial interest rate is 20% p.a.

3.6     Should any monies owed to Tingmore remain unpaid for a period of 60 days after the date of the invoice, Tingmore shall be entitled to suspend performance of the Services. Tingmore shall not be liable for any loss or damage whatsoever suffered by the Client as a result of this suspension.

3.7     At any stage, Tingmore may exercise their rights under the Building and Construction Industry Security of Payment Act 2002. Tingmore also reserves the right to engage further legal representation, as deemed necessary, in the pursuit of any overdue amounts. All costs associated with recovery of overdue invoices will be incurred by the Client.

4. LIABILITY OF THE CONSULTANT

4.1      To the maximum extent permitted by law, subject to paragraphs 4.2 to 4.7 inclusive below, Tingmore’s total liability to the Client arising out of or in connection with this Agreement (including the performance or non-performance of the Services), whether under the law of tort, in equity, under statute or otherwise, shall be limited in aggregate to: (a) the cost of rectifying the Services provided pursuant to the Agreement, (b) ten times the value of the fees (exclusive GST and disbursements), or (c) $50,000, whichever is the lesser.

4.2     Tingmore shall not be liable to the client in respect of any indirect, consequential, economic or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under this, or any other agreement).

4.3     Tingmore shall be deemed to have been discharged from all liability in respect of the Services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of 1 year from the earlier of: (a) the date of completion of the Services, (b) the date of Tingmore’s final invoice for the provision of the Services, and (c) the date of termination of the Agreement for provision of the Services.

4.4     In, and to the extent that, any of this clause is null and void as as result of section 68 of the Trade Practices Act 1974, Tingmore’s liability for a breach of a condition or warranty is limited to supplying of the relevant Services again or payment to the Client of the cost of having the Services supplied again, whichever is the lesser.

4.5     Tingmore shall have no liability whatsoever to the Client in respect of any changes, additions, alterations or modifications made to the Services by others without the express prior written approval of Tingmore.

4.6     Tingmore shall have no liability whatsoever to the Client in respect of any acts, omissions or defaults of any other contractor or consultant engaged by the Client.

4.7     Tingmore shall have no liability whatsoever to any third party for any claim, demand, proceeding or otherwise, arising out of the performance by Tingmore of the Services.

5. DISPUTE RESOLUTION

5.1      Should any dispute or difference (the “Dispute“) arise between the Client and Tingmore in relation to the Services or the Agreement, either party shall notify the other of the Dispute. As soon as practicable, but in any event, within 7 days of the notification, the parties shall meet to negotiate, in good faith to try and resolve the Dispute.

5.2     If the parties are unable to resolve the Dispute within 7 days of the meeting referred to in Clause 5.1, the Dispute shall be referred to mediation, administered in accordance with the Institute of Arbitrators and Mediators Australia Rules for the Conduct of Commercial Arbitrations.

5.3     Notwithstanding Clauses 5.1 and 5.2, Tingmore shall not be prevented from instituting legal action at any time to recover monies owing by the Client to Tingmore.

6. INTELLECTUAL PROPERTY AND CONFIDENTIALITY

6.1      Subject to the Client complying with its obligations under the Agreement, Tingmore grants to the Client a non-exclusive, royalty-free and irrevocable license to use (and allow others to use) any intellectual property (including drawings, reports and specifications), calculations and other documents, (including ‘works’ as defined in the Copyright Act 1968 created or produced by Tingmore) arising out of the provision of Services (the “IP Rights“) for the purpose of completing the Project.

6.2     Notwithstanding Clause 6.1, as between the Client and Tingmore, the ownership of the IP Rights vests with Tingmore.

6.3     Neither the Client nor Tingmore 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 the disclosure is required by law, the information to be disclosed is already generally known to the public, or the other party to the Agreement consents to the disclosure.

6.4     All documentation and materials containing confidential information provided by one party to the other shall be returned upon request.