Terms & Conditions of Engagement

  1. ROLE OF ELLIS ENGINEERED (THE CONTRACTOR)
    • THE CONTRACTOR shall perform the services with reasonable skill, care and diligence.
    • THE CONTRACTOR shall communicate with the client by and through THE CONTRACTOR representative, who shall have authority to bind THE CONTRACTOR in respect of all matters arising out of or in connection with the agreement.
    • THE CONTRACTOR shall consult with the client throughout the performance of the services. Unless otherwise agreed, THE CONTRACTOR may rely on and treat the documentation and the directions provided by the client as accurate and correct. If THE CONTRACTOR considers that any documentation made available to it by the client is insufficient to enable THE CONTRACTOR to provide the services or is incorrect, then THE CONTRACTOR shall notify the client accordingly.
    • If THE CONTRACTOR becomes aware of any matter that will change the scope, character, quality, sequence or timing of the services, then THE CONTRACTOR shall promptly notify the client of that matter.
    • THE CONTRACTOR shall keep confidential any information disclosed by the Client or of which THE CONTRACTOR becomes aware in respect of the project, unless such disclosure is approved or agreed to by the Client.
  2. ROLE OF THE CLIENT (CLIENT)
    • The Client shall promptly provide THE CONTRACTOR with all documentation and directions necessary to enable THE CONTRACTOR to provide the Services. Unless otherwise agreed, the Client shall promptly obtain all access, approvals, authorities, licences and permits necessary to enable THE CONTRACTOR to provide the services.
    • The Client shall communicate with THE CONTRACTOR by and through the Client’s representative, who shall have authority to bind the Client in respect of all matters arising out of or in connection with the Agreement.
    • If the Client becomes aware of any matter that will change the scope, character, quality, sequence of timing of the Services, then the Client shall promptly notify THE CONTRACTOR of that matter.
  3. PAYMENT TO THE CONTRACTOR FOR THE SERVICES
    • The Client shall pay THE CONTRACTOR the agreed Fee.
    • Unless agreed otherwise, THE CONTRACTOR shall issue progress claims at monthly intervals on the last business day of the month and the Client shall pay each claim in full within 7 days of the date of the progress claim.
    • THE CONTRACTOR is entitled to charge the Client interest at the rate of 10% per annum on any overdue payments from the due date for payment up to an including the date of payment.
    • The Client shall pay all costs and expenses (including, without limitation, legal costs) incurred by THE CONTRACTOR in pursuing any overdue payments.
    • If the Client varies the scope, character, quality, sequence, or timing of the Services, then THE CONTRACTOR may vary the fee accordingly.
  4. SCOPE OF LIABILITY
    • THE CONTRACTOR shall not be liable to the Client for: the acts, omissions or defaults of other contractors or consultants engaged by the Client; any changes, alterations or additions to the Services made by others without the express approval of THE CONTRACTOR, the accuracy of any costs estimates, any loss of use, opportunity or production, loss of interest, earnings or profit, holding or financial costs, business interruption or any indirect or consequential losses; and any loss damage or claim to the extent that such loss, damage or claim was caused or contributed to by the Client or its employees, agents, consultants, or contractors.
    • To the fullest extent permitted by law, all warranties implied by statute or otherwise are excluded. In the event of a breach by THE CONTRACTOR of a warranty implied under the Australian Competition and Consumer Act 2010 and which cannot be contractually excluded, THE CONTRACTOR’s liability to the Client for such breach shall be limited to the cost of supplying the Services.
    • THE CONTRACTOR shall be deemed to have been discharged from all liability in respect of the Services, whether under the law of contract, or tort or otherwise, at the expiration of one year from the completion of the Services, and the client (and persons claiming through or under the Client) shall not be entitled to commence any action or claim whatsoever against THE CONTRACTOR (or any employee contractor or sub‐consultant of THE CONTRACTOR) in respect of the Services after that date.
  5. COPYRIGHT AND USE OF DOCUMENTS
    • Copyright and the intellectual property in all drawings, reports, specifications, bills of quantities, calculations and other documents produced by THE CONTRACTOR in connection with the Services shall remain vested in THE CONTRACTOR, provided the Client pays THE CONTRACTOR in full for the Fee and, if applicable the reimbursable expenses.
    • THE CONTRACTOR may with prior consent of the Client publish, either alone or in conjunction with others, articles, photographs and other illustrations relating to the Project.
    • If during the course of providing the Services THE CONTRACTOR develops, discovers or first reduces to practice a concept, product or process which is capable of being patented, then such concept, product or process shall be and remain the property of THE CONTRACTOR and the Client shall NOT use, infringe or otherwise appropriate the same without first obtaining the written consent of THE CONTRACTOR.
  6. DISPUTE RESOLUTION
    • If a dispute arises out of or in connection with the Agreement, then either party may by notice in writing served on the other party require that such dispute be resolved within 14 days after service.
    • Each party must use their best endeavours to resolve the dispute or agree on a process for resolving the dispute. If the dispute is not resolved or a process for resolving is not agreed to within 28 days of service of the notice, then the dispute may be resolved through mediation, each party bearing their own cost.
  7. TERMINATION OF SERVICES
    • The Client may by notice in writing to THE CONTRACTOR terminate the Agreement if THE CONTRACTOR is in breach of the terms of engagement and the breach has not been remedied within 14 days (or longer period as the Client may allow) of the service by the Client on THE CONTRACTOR of a notice requiring the breach to be remedied: or the Client serves THE CONTRACTOR a notice requiring that the agreement be terminated on a date specified in the notice being not less than 14 days after the date of issue of the notice.
    • THE CONTRACTOR may by notice in writing to the Client suspend the provision of Services or terminate the Agreement if the client is in breach of any of the obligations as set out above; or the client is in breach of any other obligations under the agreement and the breach has not been remedied within 14 days (or such longer period as THE CONTRACTOR may allow) or the service by THE CONTRACTOR on the Client of a notice requiring that the agreement be terminated on a date specified in the notice being not less than 14 days after the date of the notice; or the client becomes insolvent or appears unable to pay its debts.
    • If THE CONTRACTOR suspends the provision of the Services at its sole discretion and at any time, either terminate the agreement of recommence the services by notice in writing to the client. All loss, damage, costs, expense or loss of profit incurred by THE CONTRACTOR as a result of suspension or termination shall be borne by the Client. 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 agreement which occurred prior to the date of termination.
    • If the agreement is terminated for any reason other than a breach of the agreement by THE CONTRACTOR, then the Client shall pay THE CONTRACTOR for the services carried out prior to the date of termination and all other costs and expenses incurred by THE CONTRACTOR prior to the date of termination.
  8. GENERAL MATTERS
    • Nothing shall prevent THE CONTRACTOR from employing such persons or companies, as it may deem appropriate to assist it in the performance of the Services.
    • The agreement shall be governed by the law of the State in which the majority of the Services are provided, or the law of New South Wales, Australia if the majority of the Services are performed outside Australia.
  9. HOURLY RATES
    • If the Fee or a means of calculating the Fee is not specified, then the fee shall be calculated using the following hourly rates which are subject to change by written notice.
    • Engineering AUD $175 + GST per hour
    • Drafting AUD $100 + GST per hour
  10. ADDITIONAL FEES
    • Should any changes be made subsequent to the agreed scope of works, a variation in cost may be applicable.
    • Additional services required due to modification or alterations to the layout or scope of works due to circumstances beyond the control of our office, would be subject of a separate fee charge to be quoted by THE CONTRACTOR.
  11. CANCELLATION FEES
    • Should the fee proposal (Quote Proposal) be accepted and subsequently cancelled after twenty four (24) hours of acceptance, a cancellation fee shall apply of $150.00 including GST.
    • Cancellations received following issue of any documentation or after any design work has been performed, shall be subject to a fee based on our standard hourly rates, for work performed up to the time of written receipt of cancellation. ALL cancellations must be received in writing.
  12. NOTICES
    • Unless otherwise specified in the Agreement or documents collateral to this Agreement, all notices or communications of a contractual nature given in relation to this Agreement by either party to the other party shall be in writing.