Terms of Engagement
Terms of Engagement and Time & Cost Schedule
1.1 Unless the context requires otherwise, all terms in these Standard Terms of Engagement take their meaning from the Fee Proposal letter, save that ‘Services ‘ mean the proposed extent of works outlined in the Fee Proposal plus any additional services EVO-MEP PTY LTD undertakes on the Client ‘ s behalf.
2. OUR ENGAGEMENT
2.1 Our Offer: By submitting a Fee Proposal to the Client, EVO-MEP PTY LTD is offering to deliver the Services to the Client in accordance with the terms set out in these Standard Terms of Engagement (our offer). By signing and returning the Fee Proposal Acceptance the Client accepts our offer. EVO-MEP PTY LTD is not obliged to deliver the Services to the Client unless a completed and signed Fee Proposal Acceptance is returned to EVO-MEP PTY LTD. However, the parties agree that if, after EVO-MEP PTY LTD has delivered a Fee Proposal, EVO-MEP PTY LTD is requested (e. g. by email or telephone) to deliver any part of the Services, such request will amount to acceptance by the Client of our
2.2 Your Warranties: The Client warrants that the information contained in the Fee Proposal Acceptance and Job Commencement Form is acc urate. The individuals which sign the Fee Proposal Acceptance or otherwise accept our offer warrant that they have the authority to bind the Client. If, in any legal proceeding between EVO-MEP PTY LTD and the Client, it is in issue whether the individua Is which accepted our offer were authorized to bind the Client, such individuals must consent to:
- being joined as parties to the legal proceeding; and
- judgment in favor of us, if a court or tribunal determines that the individuals did not have the authority to bind the Client.
2.3 Expiration of Offer: Our offer remains open for acceptance for 30 days from the date of the Fee Proposal. If the Client wishes to engage EVO-MEP PTY LTD after our offer expires, we may vary the terms of our offer, including in respect of price and delivery timeframes.
3. ROLE OF EVO-MEP PTY LTD
3.1 In performing the Services, EVO-MEP PTY LTD shall exercise the degree of skill, care and diligence normally exercised by members of the engineering profession performing services of a similar
3.2 In all matters, EVO-MEP PTY LTD will exercise its professional judgement independently and without improper interference from the Client or the Client ‘ s In those circumstances where EVO-MEP PTY LTD is required to exercise its judgment to decide between the interests of the Client and a third party (for example, when EVO-MEP PTY LTD is appointed as superintendent under a construction contract), it will do so independently and as required by the terms of any contract.
3.3 EVO-MEP PTY LTD will use its reasonable endeavors to deliver the Services in the timeframes set out in the Fee Proposal (if any are noted) and otherwise in a reasonably timely manner to the extent within its control. The Client must keep EVO-MEP PTY LTD informed of any pressing deadlines. EVO-MEP PTY LTD will not commit a breach of this agreement nor will EVO-MEP PTY LTD be liable for any claims due to any delay caused by events or circumstances outside of its
3.4 Unless stated in the Fee Proposal, the Client warrants that EVO-MEP PTY LTD is not the lead consultant for the Project or any part of the Project. Except where EVO-MEP PTY LTD has confirmed in writing that EVO-MEP PTY LTD is the lead consultant for any part of the Project:
- EVO-MEP PTY LTD is not responsible for coordination of other consultants, coordination of documentation, or design of the entire Project; and
- the Client is responsible for engaging the lead consultant (which depending on the Project may be an architect or town planner) to review any advice, recommendations and suggestions (each of which constitutes ‘advice’) given by EVO-MEP PTY LTD to determine whether such advice is appropriate in the context of the entire Project and any design brief.
4. ROLE OF THE CLIENT
4.1 The Client appoints the Client Representative nominated in the Fee Proposal Acceptance form as it’s agent with authority to act on behalf of the Client for all purposes in respect of the subject matter of this
4.2 Where the Client is not also the registered owner of a Project Site, the Client warrants that:
(a) the Client has obtained the consent of the registered owner to EVO-MEP PTY LTD’s officers, employees and consultants accessing the Project Site; and
(b) The registered owner has, to the extent required , provided its consent to EVO-MEP PTY LTD undertaking the Services (e.g. the registered owner’s consent may be required for the lodgment of certified drawings with a local council).
4.3 The Client must provide to EVO-MEP PTY LTD, the Client Representative and/or other consultants appointed in relation to the Project (as the case may be) as and when reasonably required by EVO-MEP PTY LTD:
(a) timely, accurate and proper instructions, including all Client requirement s, documents, briefings, information, reports and records concerning the Project and the Services.
(b) responses to all queries put by EVO-MEP PTY LTD.
4.4 The Client must act reasonably and lawfully and take reasonable care to protect its own interests in respect to all matters associated with the Services (including to notify EVO-MEP PTY LTD if it disagrees with any of assumptions EVO-MEP PTY LTD informs the Client it has made).
4.5 The Client must comply and ensure its consultants (including any contractor) comply with all workplace health and safety laws and obligations.
4.6 The Client must provide EVO-MEP PTY LTD and its employees, agents and consultants with such reasonable unfettered access to the site/s as is necessary to enable it to properly perform the services
4.7 The Client must not attempt to improperly interfere with the exercise by EVO-MEP PTY LTD of its independent professional
4.8 The Client acknowledges that EVO-MEP PTY LTD is under no obligation to undertake such services which must be carried out by any statutory authorities and/or by other consultants. If such services are required, the Client shall obtain these services at its cost and if EVO-MEP PTY LTD obtains such services on behalf of the Client it will do so on the basis set out in the Time & Cost Schedule.
4.9 Secondments: The following rules apply where EVO-MEP PTY LTD’ s Services include provision of an employee on secondment to the Client:
(a) The Client must have public liability insurance cover of not less than $20 million.
(b) The Client must provide EVO-MEP PTY LTD on request with a copy of its public liability insurance certificate of currency.
(c) The Client owes a duty of care to the EVO-MEP PTY LTD employee as a host employer, including without limitation a duty to provide a safe workplace and not expose the employee to risks to their health or safety.
(d) The Client must comply with all workplace health and safety laws.
(e) The Client indemnifies EVO-MEP PTY LTD for any losses, claims, costs, or damages arising directly or indirectly from or in connection with any personal injury claim by the employee arising during the secondment.
5. PAYMENT TO EVO-MEP PTY LTD FOR SERVICES
5.1 Fees: The Client must pay to EVO-MEP PTY LTD the fees and disbursements for providing the Services, calculated on the basis set out in the Fee The following rules apply:
(a) Where a fixed price is specified in the Fee Proposal for the Services (including for any part or phase of the Services), the fee for the Services is the fixed amount so specified (exclusive of GST). EVO-MEP PTY LTD may vary the fixed price where the Client has not complied with the Client’ s obligations under clause 4 or EVO-MEP PTY LTD are entitled to a variation in accordance with clause 6. Any variation in price will be determined in accordance with clause 6.
(b) Where a fixed price is not specified for the Services (including for any part or stage of the Services) or where the Services are specified as being charged on a ‘time and cost ‘ basis,
(c) Where any Services delivered by EVO-MEP PTY LTD are calculated on a ‘ time and cost’ basis, the method of calculation is in accordance with the Time & Cost Schedule.
5.2 Deposit/Prepayments: The Client must pay the deposits/prepayments (if any) specified in the Fee Proposal. Unless specified otherwise in the Fee Proposal:
(a) EVO-MEP PTY LTD will not commence work on the Project until payment of the deposit/prepayment has been received by EVO-MEP PTY LTD.
(b) the initial deposit/prepayment is payable within 7 days of acceptance of our offer; and
(c) subsequent prepayments are payable when requested by EVO-MEP PTY LTD and otherwise prior to undertaking further tranches of work.
Time is of the essence with respect to payment of deposits/prepayments. EVO-MEP PTY LTD may apply any deposit/prepayment received by the Client under this Agreement towards the payment of any other amount not paid to EVO-MEP PTY LTD when due by the Client under any Separate Engagement. Where this occurs, EVO-MEP PTY LTD is not obliged to deliver any further Services under this engagement until the deposit/prepayment has been reinstated in full by the Client.
5.3 Interim Billing: Unless otherwise provided in the Fee Proposal, irrespective of whether or not EVO-MEP PTY LTD’s fee is calculated on a fixed price or on a time and cost’ basis , EVO-MEP PTY LTD may issue interim bills to the Client for Services undertaken by EVO-MEP PTY LTD to the date of the interim bill. To avoid doubt, EVO-MEP PTY LTD may issue interim bills prior to having completed all the Services (including all the Services for any part or stage of the Services). EVO-MEP PTY LTD may issue interim bills at any time but will usually do so monthly.
5.4 Due date for payment: All invoices (including interim bills) must be paid by the Client to EVO-MEP PTY LTD without set-off or deduction within 14 days of the date of the invoice. Time is of the essence in respect of
5.5 Interest: The Client must pay interest on any outstanding monies from the date of invoice and until paid at the rate of 15 percentage a. Interest compounds on daily rests.
5.6 Recovery costs: The Client must pay all costs and expenses (including legal fees on a full indemnity basis) incurred by EVO-MEP PTY LTD associated with the recovery or attempted recovery from the Client of any outstanding amounts under this
5.7 Suspension: In the event of failure of the Client to make any payment to EVO-MEP PTY LTD when due, whether that payment is required under this Agreement or under any Separate Engagement, EVO-MEP PTY LTD may, without prejudice to any right to terminate this Agreement or any other agreement:
(a) suspend delivery of all services, including Services under this Agreement and services under any Separate Engagement. During any period of suspension, EVO-MEP PTY LTD is not:
- obliged to undertake any further Services and may withhold from the client any draft or completed documents, plans or certificates, whether those documents were created under this Agreement or any Separate Engagement; or
- liable for any costs or delays incurred by the Client caused directly or indirectly by the exercise of this
(b) make the ongoing delivery of Services under this Agreement and any other engagement conditional upon the Client doing any one or more of the following:
- providing security nominated by EVO-MEP PTY LTD for the Client’s payment obligations under this Agreement, including without limitation provision of director and/or shareholder guarantees on terms required by EVO-MEP PTY LTD.
- complying with different payment terms nominated by EVO-MEP PTY LTD, including without limitation, requiring shorter payment terms or full prepayment of anticipated costs in advance of delivery of Services.
(c) Separate Engagement under clause 5 means any engagement of EVO-MEP PTY LTD by the Client, a related or associated party of the Client, or by an entity which EVO-MEP PTY LTD reasonably decides is ultimately owned by the same or similar persons that ultimately own the Client.
6.1 EVO-MEP PTY LTD may but is not obliged to undertake services requested by the Client in addition to the extent of works outlined in the Fee
6.2 The Client will be charged for any additional services undertaken by EVO-MEP PTY LTD beyond the extent of works outlined in the Fee Proposal, including any additional services or work occasioned:
(a) because any assumptions outlined in the Fee Proposal were not satisfied or accurate.
(b) by reason of any delay (including, for example, if the Project does not proceed expeditiously).
(c) due to inaccuracy or insufficiency of instructions.
(d) by any breach by the Client of these Terms of Engagement.
The additional charge will be the amount agreed in writing between the parties and failing agreement, the additional services will be charged on a ‘time and cost ‘ basis.
6.3 Without prejudice to any other rights of EVO-MEP PTY LTD (including to terminate or charge for additional services in accordance with clause 6.2 above), in the event the Client breaches any of the conditions and/or warranties set out in clause 3, EVO-MEP PTY LTD may issue a written notice stating that it is given under this clause 6.3 substituting any fixed price offered in the Fee Proposal. If the Client receives a price substitution notice under this clause 6.3, the Client will be at liberty to terminate EVO-MEP PTY LTD’s engagement on notice in writing if it does not agree to any increased fixed price. In that event, EVO-MEP PTY LTD will be entitled to render a bill for work undertaken to that date, which bill, together with all prior bills, will be immediately due and
7. SCOPE OF LIABILITY
7.1 EVO-MEP PTY LTD is not:
(a) required to verify the accuracy or sufficiency of documents or reports created by third parties (eg, survey data or geotechnical reports)
(b) responsible, except to the extent required by law, for workplace health and safety in relation to any Project Site
7.2 The liability of EVO-MEP PTY LTD and any related or associated entities to the Client arising out of the performance or non- performance of the Services, whether under the law of contract, tort or otherwise, shall be limited to the cost of rectifying the works which are the subject of the commission or a sum equal to 5 times the agreed fee, whichever is the lesser
7.3 EVO-MEP PTY LTD shall be discharged from all liability in respect of the Services, whether under the law of contract, tort or otherwise, at the expiration of one year from the completion of the Services and the Client shall not be entitled to commence any action or claim whatsoever against EVO-MEP PTY LTD or any employee of EVO-MEP PTY LTD in respect of the Services after that date.
7.4 The Client indemnifies EVO-MEP PTY LTD and its employees for any loss and damage (including any legal costs on a full indemnity basis):
(a) caused directly or indirectly by any materials containing asbestos on a site or location under the Client’s ownership or control; or
(b) incurred by EVO-MEP PTY LTD in relation to any claims made against EVO-MEP PTY LTD by any person or entity other than the Client in relation to the Services delivered (including, in relation to any documents, reports, certificates and plans produced by EVO-MEP PTY LTD).
8. COPYRIGHT AND USE OF DOCUMENTS
8.1 Copyright in all drawings, plans, reports, specifications, bills of quantities, calculations and other documents (“the documents”) provided by EVO-MEP PTY LTD in connection with the Project shall remain vested in EVO-MEP PTY LTD.
8.2 The Client is granted a limited license to use the documents only for the purpose of completing the Project described in the Fee Proposal. The Client shall not use or make copies of such documents in connection with any other work or provide the documentation or copies of the documentation to a third party unless prior approval is given by EVO-MEP PTY LTD. The Client’s license to use the documents is immediately revoked if any monies on any account are outstanding to EVO-MEP PTY LTD.
8.3 The Client authorizes EVO-MEP PTY LTD, for its marketing and adverting purposes:
(a) to disclose its involvement in the Project and/or relationship with the
(b) to commission the taking of images of the
(c) to use images, plans and drawings of the Project supplied by the Client or the Client’s other
9. EVO-MEP PTY LTD EMPLOYEES
9.1 For the period commencing on acceptance of our offer and ending 6 months after EVO-MEP PTY LTD’s engagement ends, the Client must:
(a) not, without EVO-MEP PTY LTD’s prior written consent, directly or indirectly make any offer to employ or otherwise engage (including as an independent contractor) any employee of EVO-MEP PTY LTD that the Client dealt with;
(b) immediately notify EVO-MEP PTY LTD if any employee of EVO-MEP PTY LTD makes any approach to the Client with a view to the Client employing or engaging the
9.2 If the Client breaches its obligations under clause 9.l(a) and an employee of EVO-MEP PTY LTD leaves his or her employment with EVO-MEP PTY LTD, without limitation to EVO-MEP PTY LTD’s rights, the Client must pay as liquidated damages to EVO-MEP PTY LTD a sum equal to 17.5 percent of the employee’s annual remuneration package (excluding superannuation) current at the date of termination of the employee’s employment. The parties agree that this is a genuine pre-estimate of EVO-MEP PTY LTD’s loss having regard to the cost to EVO-MEP PTY LTD to engage a recruiter to replace the lost employee and costs associated with training new
10.1 The Client must not assign (or purport to assign) this agreement, any benefits or obligations created by this agreement, or any document s, certificates or drawings created by EVO-MEP PTY LTD as a consequence of entering into this agreement without the prior written consent of EVO-MEP PTY LTD (which consent may be withheld in EVO-MEP PTY LTD’ s absolute discretion or granted only subject to conditions determined by EVO-MEP PTY LTD).
11.1 EVO-MEP PTY LTD may terminate the agreement and their obligations under the agreement immediately in the event:
(a) the Client fails to pay monies payable to EVO-MEP PTY LTD as and when
(b) other than any obligation to pay any amount to EVO-MEP PTY LTD, the Client breaches any obligation or warranty in these Standard Terms of Engagement, provided that, if the breach is capable of remedy, EVO-MEP PTY LTD must first deliver a notice to the Client giving the Client not less than 7 days to remedy such breach,
(c) a site or location under the Client’s ownership or control is considered to be hazardous or has the potential to contain an asbestos or a material containing asbestos in an unsafe
(d) the Client is insolvent, bankrupt or subject to any form of external
(e) EVO-MEP PTY LTD reasonably believes a conflict of interest may arise or has
(f) EVO-MEP PTY LTD reasonably believes that there has been a breakdown in the relationship of mutual trust and confidence between EVO-MEP PTY LTD on the one hand and the client, the client’s representative and/or lead consultant on the other
11.2 EVO-MEP PTY LTD may terminate this agreement on 30 days written notice to the
11.3 In the event of termination under this clause, all monies on any account become immediately due and payable to EVO-MEP PTY LTD.
12. GENERAL PROVISIONS
12.1 Severance: If any provision of this agreement between the parties is unenforceable, the parties agree that such provision will be severed from this Agreement.
12.2 Jurisdiction: This Agreement is governed by the laws of Queensland and the parties submit to the exclusive jurisdiction of the Queensland Court.
12.3 Electronic Transactions: The parties’ consent to and agree that:
(a) information can be given and received by electronic communication.
(b) this Agreement can be signed by way of digital or electronic signature
TIME & COST SCHEDULE
BY CATEGORY FOR WORKS UNDERTAKEN ON A TIME AND COSTS BASIS
This schedule sets out the basis on which the Client will charged if any works or services provided by EVO-MEP PTY LTD are to be provided on a ‘time and costs’ basis.
TIME COSTING – HOURLY RATES
Fees for professional services on a time basis are based on the time spent on the work for the Client at the hourly rates scheduled below.
For purposes of administration, the staff of EVO-MEP (“EVO-MEP PTY LTD”) has been divided into several categories and the hourly rate for each category is set out below. EVO-MEP PTY LTD reserves the right to change the hourly rate of project personnel during the currency of the assignment to take account of promotions, performance and responsibility.
EVO-MEP PTY LTD may annually vary each rate, with the effect of such variation taking effect on 1st July each year.
EVO-MEP PTY LTD will keep records of all time spent on the project and any expenses incurred. The Client may inspect these records at any time during the currency of the assignment.
|Category Description:||Hourly Rate:*|
|Director/ Partner/ Principal||$230|
|Drafter/ Site Manager||$117|
|Supervising Technical Officer||153|
|Junior Technical Officer||112|
|Secretary and Clerical||92|
|Rate per kilometre for vehicles*||3.45|
* Exclusive of GST
OTHER PROFESSIONAL SERVICES
EVO-MEP PTY LTD shall, if it considers it necessary and with the Client’s approval, obtain the services of other professional consultants as agent for the Client and shall be responsible for co-ordinating their services. The Client shall reimburse EVO-MEP PTY LTD for the fees incurred or, by agreement, pay the other consultants direct. A co-ordination fee of 12.5% of the fee paid to other consultants shall be paid by the Client to EVO-MEP PTY LTD.
EVO-MEP PTY LTD will be reimbursed for the cost of document printing, communication charges and miscellaneous services as follows:
- Documents – External printing, reproduction of documents and the like will be reimbursed at actual cost plus 10%. Purchase of Council ‘as-constructed’ or other documents including BiMap records, maps, other records and the like will be reimbursed at actual cost plus 10%.
- Communications – Trunk and toll telephone calls, telex facsimile, telegrams, cables, charges for courier service deliveries and freight will be reimbursed at cost plus 10%.
- Miscellaneous – Advertising, testing and other items or services will be reimbursed at cost plus 10%.
INVOICES AND PAYMENTS
Invoices for fees at the hourly rate set out above will be rendered in accordance with the Standard Terms of Engagement.
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