Terms of Engagement
between the Client and the Consultant.
- The Client wishes to receive quantity surveyor services, as more particularly described in schedule 1.
- The Consultant has the skills, background and experience in providing the quantity surveyor services.
- The Client wishes to engage an independent contractor to provide the Consultancy Services to the Client.
- The Consultant is willing to provide the Consultancy Services and the Client is willing to appoint the Consultant to provide the Consultancy Services, all in accordance with the provisions of this agreement.
- Definitions and interpretation
In this agreement, the following words have the following meanings.
Claims means all demands, claims, proceedings, penalties, fines and liability (whether criminal or civil, in contract, tort or otherwise).
Client means the individual or entity which engages the Consultant for the performance of the services pursuant to this Agreement.
Commencement Date means the date of this agreement.
Completion Date means the date on which the Consultant is to complete performing the consultancy agreement.
Confidential Information includes any information marked as confidential and any information received or developed by the Consultant during the term of this agreement, which is not publicly available and relates to processes, equipment and techniques used by the Client in the course of the Client’s business including all information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans.
Consultancy Services has the meaning given to the term in schedule 1.
Consultant means Duo Tax Quantity Surveyors Pty Ltd, its nominees, assigns, contractors, subcontractors or appointees.
Consultant’s Personnel means any person or persons that the Consultant designates to perform the Services on the Consultant’s behalf.
Facilities means working space, the property to which the Consultancy Services are provided, and all other matters to the extent required by the Consultant in order to perform the Consultancy Services.
Fees means the schedule of fees attached to the quotation and provided to the Client.
GST Law means the same as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property includes trade marks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former.
Information includes information whether of a technical, commercial or any other nature provided directly or indirectly in oral, electronic or documentary form or by way of models, biological or chemical materials or other tangible form or by demonstrations and whether before, on or after the date of this agreement.
Losses means all losses including financial losses, damages, legal costs and other expenses of any nature.
Quotation means the quotation of services and fees provided to the Client in accordance with this Agreement. This quotation may be made in an invoice issued to the Client with the description of the works to be performed.
Parties means the Consultant and the Client, and Party means either one of them.
Purpose means the same as in Schedule 1.
In this agreement unless the context otherwise requires:
- words importing any gender include every gender;
- words importing the singular number include the plural number and vice versa;
- words importing persons include firms, companies and corporations and vice versa;
- references to numbered clauses, paragraphs and schedules are references to the relevant clause or paragraph in or schedule to this agreement;
- reference in any schedule to this agreement to numbered paragraphs relate to the numbered paragraphs of that schedule;
- any obligation on any Party not to do or omit to do anything is to include an obligation not to allow that thing to be done or omitted to be done;
- the headings to the clauses and schedules of this agreement are not to affect the interpretation;
- any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment; and
- the word “including” (and related forms including “includes”) shall be understood as meaning “including without limitation”.
2. Definitions and interpretation
2.1 Services provided by the Consultant
- The Client is bound by this Agreement upon receiving and accepting, verbally or in writing, the Quotation or by instructing the Consultant to proceed with the Services, verbally or in writing.
- The Client agrees to be bound by this Agreement, and payment of the Fees, upon acceptance of the Quotation or this Agreement, and/or upon providing instructions to the Consultant to proceed with the Services.
- By accepting the Quotation, the Client agrees to be bound by this Agreement.
- The Consultant will provide the Consultancy Services according to Schedule 1 to the Client. This is in consideration for the Client paying the Fee to the Consultant, subject to the provisions of this agreement.
- The Client must ensure that the Consultant receives all necessary materials, documentation, access to premises or any other relevant document or thing necessary for the Consultant for the performance of the Services. In the event of a delay, the Client agrees to reimburse or indemnify the Consultant to any additional costs or fees incurred.
- The Consultant and the Client will agree the time and place for the performance of the Consultancy Services subject to the availability of the Consultant’s staff and agents.
- The Consultant will start providing the Consultancy Services on the date of this agreement, and upon receiving payment from the Client.
- In the event that the Client seeks any alterations to the initial instructions or Quotation, the Client agrees to pay or reimburse the Consultant for any additional fees or costs incurred as a result of the alteration.
2.2 Standard of services
- The Consultant must use reasonable endeavours to complete the Consultancy Services by the date specified in this agreement, or as agreed between the parties.
- The Consultancy Services must be performed by such employees or agents that the Consultant may choose as most appropriate to carry out the Consultancy Services as determined by the Consultant at its discretion.
- The Client acknowledges and agrees that time is not of the essence for:
- any dates or times when Consultancy Services are due to be performed;
- the length of time that any Consultancy Services will take to perform; and
- any date or time when the Consultancy Services will be completed.
2.3 Professional bodies
- The Consultant provides the Consultancy Services subject to the requirements and obligations of Australian Taxation Office and regulations and legislations governing tax agents. These may limit or override any provisions of this agreement or Schedule 1 or anything else agreed by the Parties.
- The Consultancy Services call for the provision of opinions and advice. The Parties acknowledge and agree that the Consultant may give an opinion or an interpretation on a set of facts or an issue provided by the Client which is fully in accord with its obligations under this agreement and in accordance with his obligations as a member of the Tax Practitioners Board. However, another member of the Tax Practitioners Board or any other profession may give a different opinion or interpretation on the same facts or issue.
- From the date of this Agreement, the Parties will discuss and agree the Consultancy Services to be carried out by the Consultant. What has been agreed by the Parties, the time estimates for the provision of the particular Consultancy Services, and the Fees to be paid will be set out in Schedule 1.
- The Consultant is responsible for preparing Schedule 1.
- Schedule 1will be provided to the Client on its completion.
- For the Consultant to commence providing the Consultancy Services as stated in Schedule 1, the Client must first provide a signed copy of Schedule 1 to the Consultant to indicate the Client’s acceptance of the content of Schedule 1 and that the Client is willing for the Consultant to provide the Consultancy Services in accordance with Schedule 1.
- Schedule 1 may be varied or added to as agreed by the Parties from time to time, in writing. Any variation or addition to Schedule 1 shall be clearly indicated (including the additional or different Fees to be paid by the Client).
The Consultant will provide the Consultancy Services in such places and locations as the Consultant considers appropriate to the type and nature of the requirement of the Client or set out in Schedule 1 or agreed by the Parties from time to time.
Unless otherwise provided for in Schedule 1, where any stage of performing the Consultancy Services requires the approval or acceptance of the Client, where the Consultant has completed performing the Consultancy Services, the Client will be deemed to have accepted or approved them within 7 days of the Consultant:
- notifying the Client that the Consultancy Services had been completed;
- supplying any final report to the Client; or
- sending a final invoice to the Client.
- In consideration of the provision of Consultancy Services in accordance with this agreement, the Client will pay the Consultant the Fees.
- In the event that the Client requests alterations with respect to the Services, the Client must pay the Consultant any additional fees or costs as advised by the Consultant.
- The report in accordance with the Services will not be released to the Client unless payment is made to the Consultant in full.
- Where the Consultant’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.
- The Fees are exclusive of any GST that may be charged by the Consultant to the Client, and therefore, the Consultant will be entitled to add on GST.
- The Consultant will provide the Client with a tax invoice in accordance with the GST Law in relation to remuneration payable under this clause.
- In the event that the Services are cancelled by the Client after accepting the Quotation, or the Services, or any part of them, are not capable of being performed through no fault of the Consultant, then the Client agrees to pay the Consultant the Fee in full.
- Upon receiving instructions from the Client, the Consultant will issue an invoice to the Client. Payment of the Fee for the Consultancy Services must be made, in full, prior to the Consultant providing ant of its Services.
- In the event that the Client requests the cancellation of any of the services to be provided pursuant to this agreement, the Fees is payable in full. Moreover, it is at the discretion of the Consultant, at its sole discretion, to consider the work performed, and the cost incurred when assessing the Fee to be charged in the event that the Client requests the cancellation. The Consultant has the discretion to charge the full Fee amount.
- The Consultant is permitted to charge for all costs and expenses incurred in performing the Consultancy Services, including travelling, photocopying, courier services, postage, in addition to the fee estimate, in the event that those fees are incurred outside the agreed Schedule 1.
- If the Client does not make a payment by the date stated in an invoice or as otherwise provided for in the agreement, the Consultant is entitled:
- to charge interest on the outstanding amount at the rate of 5% per year above the base lending rate of the Commonwealth Bank of Australia, accruing daily;
- to require the Client to pay, in advance, for any Consultancy Services (or any part of the Consultancy Services) which have not yet been performed; and
- not to perform any further Consultancy Services (or any part of the Consultancy Services).
- When making a payment the Client must quote relevant reference numbers and the invoice number.
7. Client’s obligations
- During the performance of the Consultancy Services the Client will:
- co-operate with the Consultant as the Consultant reasonably requires;
- provide the information and documentation that the Consultant reasonably requires;
- make available to the Consultant such facilities as the Consultant reasonably requires; and
- ensure that the Client’s staff and agents cooperate with and assist the Consultant.
- The Client will not charge for the Consultant’s use of the Facilities made available by the Client.
- If the Client does not provide the Facilities that the Consultant reasonably requires (and within the time period) to perform the Consultancy Services, any additional costs and expenses which are reasonably incurred by the Consultant will be paid by the Client.
8. Provision of reports
- The Consultant may provide a report for the purpose of taxation.
- Unless otherwise by the parties:
- the Client will be entitled to 1 copy of any report provided by the Consultant;
- the Client will be entitled to use any reports for tax purposes only.
- the Client will not be entitled to publish any reports (or sell or make the reports available to third parties), or allow any other person to do so; and
- the copyright and database right (and all other Intellectual Property rights) in the reports (or any other material created or prepared, whether or not provided to the Client, by the Consultant in performing the Consultancy Services) will belong to the Consultant.
9. Use of subcontractors
- The Consultant is permitted to use other persons to provide some or all of the Consultancy Services.
- The Consultant is responsible for the work of any of the Consultant’s subcontractors.
- Subject to clause 9(d), any work undertaken by any of the Consultant’s subcontractors is to be undertaken to the same standard as the work agreed to between the parties.
- To the extent that the terms of any subcontract stipulate a higher standard for any of the Consultancy Services than the standards set out in this agreement (including as to timing or quality), any Consultancy Services provided by the relevant subcontractor will be governed by the terms and conditions of the subcontract.
- Where the Consultant uses the services of a subcontractor, not all of the subcontractors may hold (or need to hold) membership Tax Practitioners Board / be qualified as a tax agent. Therefore, they may not owe the same duties as the Consultant in regard to the services provided by those subcontractors.
- The Client may, at any time, if it has reasonable grounds which have been disclosed and discussed with the Consultant, by notice in writing to the Consultant, require the Consultant to cease to permit a particular person or persons employed by the Consultant or acting as agents of the Consultant to carry out the Consultancy Services.
- If the Client makes the requirement referred to in clause 9(f), the Consultant must, as soon as it is practicable, cease to provide the service of the particular person or persons in respect of the Client’s business and provide the services of an alternative person or persons as may be reasonably acceptable to the Client.
10. Warranties, liability and indemnities
- The Consultant provides no warranty that any result or objective can or will be achieved or attained at all or by the given completion date or any other date, whether stated in this agreement or Schedule 1 or elsewhere.
- The Consultant provides no warranty as to the result that the depreciation report will achieve.
- The Client must indemnify and hold harmless the Consultant from and against all Claims and Losses arising from loss, damage, liability, injury to the Consultant, its employees and third parties, infringement of third party intellectual property, or third party losses by reason of or arising out of any information supplied to the Client by the Consultant, its employees or consultants, or supplied to the Consultant by the Client within or without the scope of this agreement.
- Each of the Parties acknowledge that, in entering into this agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law.
- Notwithstanding anything in this agreement to the contrary, the Consultant may immediately terminate this agreement by notice in writing to the Client for any reasonable cause, after which all invoices are payable immediately.
- A reasonable cause may include, but is not limited to:
- The Client not providing proper instructions;
- The Client has, in any material or non-material way, breached any of the terms of this Agreement; or
- The Client becomes insolvent or bankrupt or has committed an act of insolvency or bankruptcy
- On termination of this agreement, the Client must pay for all Consultancy Services provided up to the date of termination, and for all expenditure falling due for payment after the date of termination from commitments reasonably and necessarily incurred by the Consultant for the performance of the Consultancy Services prior to the date of termination.
- In the event that the Client terminates this Agreement, the Client must, prior to doing so:
- Provide the Consultant 7 day’s notice in writing;
- Provide a reason for the termination; and
- Pay any and all Fees and invoices
12.1 Force majeure
- Neither Party has any liability under or be deemed to be in breach of this agreement for any delays or failures in performance of this agreement which result from circumstances beyond the reasonable control of that Party.
- The Party affected by such circumstances must promptly notify the other Party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.
- If such circumstances continue for a continuous period of more than 6 months, either Party may terminate this agreement by written notice to the other Party.
This agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in NSW, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of NSW.
- Subject to clause 3(b), neither Party may assign, delegate, subcontract, mortgage, charge or otherwise transfer any or all of its rights and obligations under this agreement without the prior written agreement of the other Party.
- A Party may assign and transfer all its rights and obligations under this agreement to any person to which it transfers all of its business, provided that the assignee undertakes in writing to the other Party to be bound by the obligations of the assignor under this agreement.
12.4 Entire agreement
- This agreement contains the whole agreement between the Parties in respect of the subject matter of agreement and supersedes and replaces any prior written or oral agreements, representations or understandings between them relating to such subject matter.
- The Parties confirm that they have not entered into this agreement on the basis of any representation that is not expressly incorporated into this agreement.
- No failure or delay by the Consultant in exercising any right, power or privilege under this agreement will impair the same or operate as a waiver of the same nor will any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege.
- The rights and remedies provided in this agreement are cumulative and not exclusive of any rights and remedies provided by law.
12.6 Agency, partnership etc
- This agreement does not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this agreement.
- Neither Party may, nor represent that it has, any authority to make any commitments on the other Party’s behalf.
12.7 Further assurance
Each Party to this agreement must at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this agreement or to make it easier to enforce.
If any provision of this agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this agreement and rendered ineffective as far as possible without modifying the remaining provisions of this agreement. It will not in any way affect any other circumstances of or the validity or enforcement of this agreement.
A notice or other communication connected with this agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, the notice may be sent by pre-paid post to the address of the addressee as set out in this agreement, or sent by facsimile to the facsimile number of the addressee.
12.10 Work, health and safety
The Consultant shall comply with all relevant work, health, safety and welfare standards and regulations determined by the Company or as prescribed by legislation.
12.11 Law and jurisdiction
This agreement takes effect, is governed by, and shall be construed in accordance with the laws from time to time in force in NSW, Australia. The Parties submit to the non-exclusive jurisdiction of the courts of NSW.
SCHEDULE 1 – Consultancy Services
- The description of the works as set out in the Quotation.