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Terms and Conditions

  1. ICEN shall perform the Services in accordance with these conditions and the attached Letter of Engagement, which, when read together, form the contract(Contract) between you (the Client) and ICEN. If you elect to confirm our engagement other than by signing a duplicate of this letter, by sending a purchase order or other document containing alternative terms and conditions, those terms and conditions will be of no effect. 

  2. ICEN must commence the Services as soon as practicable after this Contract is executed by both parties and complete the Services by the Completion Date or during the Period as stated in the Letter of Engagement or, if no time is stated, within a reasonable period of time. If ICEN is delayed in performing its obligations by an act or event beyond its reasonable control, time for performing the obligations shall be extended by a time equal to the delay. 

  3. ICEN must perform the Services to the standard of skill, care and diligence as is reasonably expected of a consultant performing the same or similar services. 

  4. The Client and ICEN may agree in writing to vary the Services. The value for each variation shall be calculated based on the Fee or as agreed between ICEN and the Client. Time for performing the Services shall be extended by a time equal to the variation. 

  5. The Client must pay to ICEN the Fee, the Reimbursable Expenses, the value of any variation in accordance with clause 4, and any reasonable costs incurred by ICEN in performing its obligations under this Contract and agreed to by the Client. 

  6. ICEN may claim payment progressively throughout the Project, corresponding with the value of work undertaken during the period for the payment claim. 

  7. The Client must pay ICEN the amount payable under this Contract within thirty days of the date of a payment claim. Overdue payments will be subject to compound interest charged at the bank bill standard yield rate as displayed by Reuters for the unpaid period plus two per cent per annum calculated daily. ICEN may immediately stop performing the Services if the Client fails to pay any fees that are due and payable to ICEN under this Agreement(“Outstanding Fees”). ICEN must recommence the Services as soon as the Client has paid all Outstanding Fees. 

  8. The Client must provide to ICEN all relevant, up-to-date and accurate information and documents relevant to the Services at the commencement, and during the term of, this Contract.ICEN may rely on information and documents provided by the Client but is under no duty to verify their accuracy or completeness. 

  9. ICEN’ Liability to the Client is limited to the Fee or the cost of re-performing the Services,whichever is the lesser.Liability arising under this clause is reduced to the extent it arises out of in connection with any negligent act or omission or breach of contract by the Client. Neither party is liable to the other for loss of actual or anticipated revenue or profits,increased capital or financing costs, increased operational or borrowing costs, pure economic loss, exemplary or punitive damages or indirect or consequential damages. 

  10. Twelve months from the date of ICEN’ final invoice, each party releases the other from all current and future Liability, save for the Client’s obligation to pay the Fee and any claim or dispute that has been notified in writing before that date. 

  11. ICEN must effect and maintain insurance policies that it deems necessary for the Services (in its absolute discretion). 

  12. Intellectual property rights in any drawings,reports, specifications, bills of quantity, calculations and other documents provided, or created by ICEN in connection with the performance of the Services remain the property of ICEN. Subject to each party complying with its obligations under the Contract, each party provides to the other a royalty-free, non-exclusive, non-transferable license to use intellectual property either belonging to that party or able to be provided by it whether under sub-license or otherwise, for the sole purpose of performing the Services and completing the Project. 

  13. Unless ICEN expressly agrees otherwise:

    1. The Services are solely for the use and benefit of the Client; and

    2. ICEN does not accept any liability, whether directly or indirectly, for any Liability or loss suffered or incurred by any third party placing any reliance on the performance of the Services or any documents, materials or advice arising from or in connection with the Services. 

  14. The Client indemnifies ICEN from any claim by, or liability to, a third party regarding third party use of, or reliance on,the Services. 

  15. Any dispute between the Client and ICEN may be notified in writing by a party to the other party. If a dispute is to be notified, it must be delivered by hand or registered post, and adequately detail the dispute. Within seven days of service of a notice, senior representatives from each party with authority to settle the dispute must meet and use best endeavors to resolve the dispute. If the dispute is not resolved within seven days (or other period as agreed between the parties), either party may by written notice refer the dispute to a mediator appointed by both parties, or failing such agreement, appointed by the President of the Institute of Arbitrators and Mediators Australia. If the dispute is not resolved by mediation, either party may commence legal proceedings or such alternative dispute resolution proceedings as agreed in writing by the parties. A party cannot commence legal proceedings unless it has issued a notice under this clause and the requirements of this clause have been complied with. 

  16. Clause 15 does not prevent a party from instituting proceedings in a competent court of law to seek injunctive or urgent declaratory relief or ICEN instituting proceedings at any time to recover money owing by the Client. 

  17. A party may terminate this Contract if the other party commits a material breach of the Contract and does not rectify the breach within fourteen days of being notified in writing of the breach. If the material breach is the Client’s failure to pay the Fee, ICEN may suspend the Services or terminate the Contract. The parties may terminate the Contract at any time by mutual written agreement. Termination shall be without prejudice to any claim that either party may have against the other in respect of any breach of the terms of the Contract that occurred prior to the date of the termination. 

  18. A party may only assign, novate or otherwise transfer any or all of its rights or obligations under the Contract with the prior written consent of the other party, which must not be unreasonably withheld. ICEN may appoint a suitably qualified and competent sub-consultant to assist ICEN at any time and without the Client’s consent. 

  19. The parties must keep confidential all information marked “confidential” or which by its nature is confidential. This does not apply where the information is

  20.   1. in the public domain (other than through a breach of this Contract); (b) required by law to be disclosed; (c) disclosed to a party’s financial or legal advisors; or

  21.   2. used by ICEN for marketing purposes, but then only to the extent that ICEN makes non-specific statements. 

  22. ICEN complies with the National Code of Practice for the Construction Industry and the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry (Codes) as they apply to the Services. ICEN must require its sub-consultants to comply with the Codes as they apply to the sub-consultancy services. 

  23. Unless the Services specifically include a requirement to give advice on pollution and/or contamination, the obligations of ICEN do not include a duty to advise as to the actual or possible presence of pollution or contamination or as to the risks of such matters having occurred, being present or occurring in the future, nor shall ICEN have a duty to consider such matters as influencing any aspect of the Services. 

  24. This Contract will be governed by the laws of the State, Territory or Country shown in the ICEN letterhead in the attached Letter of Engagement. The parties submit to the exclusive jurisdiction of the courts of the applicable State, Territory or Country. 

  25. The Contract constitutes the entire contract for the performance of the Services and supersedes all previous arrangements, correspondence, tenders, representations, proposals, understandings and communications whether written or oral. 

  26. If any provision of the Contract is deemed to be void, invalid or unenforceable, all other provisions which are self-sustaining and capable of separate enforcement, shall, to the maximum extent permitted by law, continue to be valid and enforceable. 

  27. A notice shall be deemed to have been properly delivered and served if it is sent by a party’s nominated representative to the address of the other party’s nominated representative. ICEN’ nominated representative is detailed in the attached Letter of Engagement. The Client must notify ICEN of the Client’s nominated representative at the commencement of this Contract. 

  28. Words appearing as capitalized text in the Conditions of Engagement are defined by reference to the information appearing below the corresponding heading in the Letter of Engagement. For the purpose of clauses 9 and 10, Liability is any claim or liability arising out of or in connection with the Contract, whether arising in contract, tort (including negligence) or otherwise.

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