Terms and Conditions of Engagement – Northern Rivers Land Solutions

1. This contract is expressly deemed to have been entered in Sydney in the State of New South Wales and is subject to the laws and usages of that State.

• Consultant shall provide the Services with such skill, care and diligence as is generally exercised by competent members of the consulting profession performing services of a similar nature, at the time the services are provided and in accordance with the Australian Consumer Law.

• These conditions together with the fee proposal form the contract between the Client and BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions.

• The Consultant shall provide to the client the consulting services described in the accompanying fee proposal/submission together with such other services as may be agreed from time to time.

• A written acceptance of the fee submission / proposal and these conditions is required on the form issued with the fee submission / proposal, prior to the commencement of works. Please contact BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions to discuss any matter which is unacceptable, but please do so immediately upon receipt of this fee submission / proposal. If you do not contact us for that purpose before continuing to provide us with instructions to do work after receiving this letter, it will indicate agreement to the terms and conditions proposed above irrespective of whether express written agreement is provided.

• The Services will be performed at either or both the site of the project or at other sites reasonably required by the client. Where the locations of the Consultant’s work are not under the Consultant’s control (including the Site), the Client must provide reasonable access to allow the Consultant to fulfill its obligations (including to provide the Services).

• The Client shall, at its own cost, as soon as practicable make available to the Consultant all information, documents and other particulars relating to the Client’s requirement for the project as is necessary for the Consultant to carry put the services as expressly set out in this Agreement (the “Requirements”). The Consultant is entitled to rely on such information, documents and other particulars as are provided by the Client pursuant to or in connection with this Agreement.

• The scope of the works to be undertaken is detailed in the fee submission / proposal accompanying these conditions.  Where variations to works are to be undertaken, resulting from Council or Client amendments, which fall outside the original scope of the works, then the following hourly rates will apply to the additional works, unless a new fee proposal is issued for the variation. Where extended liaison with Council, Contractors, Government Departments, Consultants or the Client is required and has not been itemised in the original fee proposal, then these activities shall be charged at the hourly rates detailed in our standard hourly rates and disbursement costs.

• Standard Hourly Rates and Disbursements are as follows:-

• Where the duration of the engagement extends beyond 12 months, our standard hourly rates and the fees outlined will be indexed annually from July 1 consistent with CPI or minimum 3%.

• The Client shall pay to the Consultant the Fee and the Reimbursable Expenses  together with such other amounts in respect of other services agreed to be provided; Reasonable adjustments to the Fee and  the Reimbursable Expenses to reflect the additional costs, expenses, liabilities, losses or other amounts incurred or suffered by the Consultant in the performance of the Services and arising out of or in connection with any event or matter beyond the Consultant’s control; and to the extent that amounts payable under this Agreement are not expressed to be GST inclusive, an additional amount for the GST incurred by the Consultant in relation to the supply of the Services (“GST”).

• Travel disbursements will be charged at the Taxation Commissioner’s rate for works outside the Sydney / Gosford / Newcastle Metropolitan areas and/or fares and accommodation at cost.

• Payment for the provision of services is required at the time of issue of plans, reports, calculations or certificates etc.  Where a satisfactory payment history has been established between BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions and the Client, then 7 day payment terms may be arranged.

• Progress invoices will be issued on the issue of plans, reports, certificates, etc and/or after the last day of each calendar month and all invoices will be issued as a claim under the Building Industry Security of Payment Act, 1999 (NSW).

• Where no bona fide dispute exists in respect of works or an invoice, BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions is entitled to charge the Client simple reducible interest at the rate of 15% per annum on any overdue payments from the due date of payment.  The client shall pay all costs and expenses incurred by BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions in pursuing any overdue payments.

• Where the payment is overdue and payment arrangements have not been agreed to BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions reserves the right to provide the Client’s details to a debt recovery professional and credit reporting agency under the strictures of the Federal Privacy Act (1988) & National Privacy Principles.

• Where sub-consultants or other consultants are engaged to undertake works, then the fees charged by these consultants shall be passed on to the Client, external consultant fees are directly payable by the client to the consultant.

• Where survey or other preliminary information to be supplied by the Client or on behalf of the Client is not in an appropriate format for incorporation into designs, then BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions reserve the right to charge fees at the hourly rates detailed in these terms to convert the data to the required format.

• To the maximum extent permitted by law:-
  (a) subject to paragraphs (b), (c) and (d) below, the Consultant’s 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 contract, in tort, in equity, under statute or otherwise, shall be limited in aggregate to the amount specified in the accompanying fee proposal/submission of $300,000 if no amount is stated in this document;
  (b) the Consultant 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);
  (c) the Consultant shall be deemed to have been discharged from all liability in respect of the Services whether under contract, in tort, in equity, under statue or otherwise, at the expiration of the period specified in the accompanying letter, or if no date is specified, on the expiration of 3 years from the completion of the services;
  (d) if, and to the extent that, any of this clause is void as a result of any legislation or law, then the consultant’s liability for a breach of a condition or warranty shall be limited to  the supplying of the relevant services again or the reasonable  costs having the services supplied again.

• Subject to the client complying with its obligations under the Agreement, the Consultant grants to the Client a non – exclusive, royalty-free and irrevocable licence to use (and allow 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 the Consultant) arising out of provision of the Services (‘IP Rights’) for the purposes of completing the Project. As between the Client and the Consultant, the ownership of the IP Rights vests in the Consultant.

• All plans, reports, calculations or other documentation issued remain the property of BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions until such time as the account has been settled to the satisfaction of BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions.  Where the account remains unpaid after a period of 14 days, then BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions reserves the right to revoke the use of any documentation issued. Copyright and Intellectual property in the abovementioned items produced by BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions shall remain vested in BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions.  Provided the client pays the full fees for the contracted service, the client shall have a licence to use the documents for the purpose of completing the intended project.

• Neither the Client nor the Consultant 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:
  (a) required by law;
  (b) the information is already generally known to the public;
  (c) the other consents to the disclosure.

• Any dispute or difference (‘Dispute) between the Client and the Consultant may be notified by a party to the other party and the parties shall:
  (a) first meet to negotiate, in good faith, a resolution of the dispute;
  (b) second, if negotiation fails to achieve a resolution of the Dispute within 5 working days of the notification of   the Dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia;
  (c)provided that this provision shall not prevent the Consultant from instituting legal action at any time to recover moneys owing by the Client to the consultant.

• The client may, without prejudice to any other rights or remedies it may have, by written notice served on the Consultant terminate its obligations under this Agreement:
  (a) if the Consultant is in breach of the terms of the Agreement and the breach has not been remedied within 28 days of a written notice served by the Client on the Consultant specifying the breach and requiring the breach to be remedies;
  (b) upon the Client giving the Consultant 60 days’ written notice of its intention to do so;
  (c) if the Consultant informs the Client that it is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, provisional liquidation, voluntary administration, winding up or external administration (“Insolvency event).

• The consultant may, without prejudice to any other rights or remedies it may have, by notice in writing served on the Client suspend its obligations under this Agreement:
  (a) immediately by written notice if the Client has failed to pay in accordance with this agreement;
  (b) if  the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 10 working days (or longer as the Consultant may allow) of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied.

• The consultant may, without prejudice to any other rights or remedies it may have, terminate its obligations under this Agreement:
  (a) if the breach referred to in clause 13(a) has not been remedied within 5 working days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedies;
  (b) if  the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 28 days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied;
  (c) upon the Consultant giving the Client 60 day’s written notice of its intention to do so;
  (d) if  an Insolvency Event occurs in relation to the client.

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

• Neither party may assign, transfer or sublet any obligations under this Agreement without the written consent of the other. Unless stated in writing to the contrary.

• 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.

• Where the Services as Principal Consultant include contract administration and other services during construction, include the following clauses:
  (a) the Consultant is hereby authorised to act as agent of the Client to carry out those services;
  (b) all communications by the Client, the contractor, specialist consultants or others relative to the Consultant’s duties governed by this Agreement, shall be made by or through the consultant;
  (c) the Consultant may make such decisions and issue such instructions as are in its opinion necessary for the safety of persons or property, or the proper execution of the Project;
  (d) the Consultant may make all decisions which it is empowered or required to make under relevant contracts, including decisions on claims made by the Contractors or the Client as required, and decisions relating to the interpretation of documents pertaining to those contracts;
  (e) the Consultant may issue all certificates required or permitted by relevant contracts which he administers;
  (f) the relevant contractor alone is responsible for the proper execution of the work;
  (g) the contract administration services are not rendered for the benefit of nor does the Consultant undertake a duty of care towards any contractor:
  (h) the Consultant is not responsible to the Client for the means, methods, techniques, sequences, procedures and use of equipment, of any nature whatsoever whether approved by the Consultant or not which are employed by the contractor or others in executing any phases of the project.

• If the Agreement for the provision of Consulting Services is terminated or the project has been stopped temporarily or permanently the BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions is to be paid for the work done up to that date.

• Where a project is reactivated after a delay of six (6) months or more Barker Ryan Stewart are entitled to charge a variation at the standard hourly rates (or an agreed fixed fee) for the time associated for our team to re familiarise themselves with the project.

• The fee proposal will remain valid for 3 months after its date of issue, at which time BRS Northern Rivers Pty Ltd trading as Northern Rivers Land Solutions reserves the right to review the fee proposal.

LAST UPDATED: July 2022