- The Contract is binding between the Client and SMI Land Surveys Pty Ltd (Indiya Geospatial) upon the earlier of the Client signing and returning a copy of the Quote or providing instructions or documents in connection with the Scope of Works, whichever occurs first.
- If the Client comprises two or more parties each of those parties is jointly and severally liable on the covenants and obligations herein.
- This Contract cannot be varied or amended except where in writing and signed by both parties. A provision of the Contract may not be waived except in writing and signed by a director or other authorised officer of Indiya Geospatial. No waiver or breach of any provision of the Contract shall constitute a waiver or breach of any other provision.
- Where there is any discrepancy, inconsistency or ambiguity between the Quote, these General Conditions and the documents comprising the Scope of Works, Indiya Geospatial will determine how the discrepancy, inconsistency or ambiguity must be resolved. Any additional services or costs necessary to overcome a discrepancy, inconsistency or ambiguity, must be treated as a Variation.
- This Contract, together with documents referred to herein or incorporated in the Quote constitute an entire agreement between the Client and Indiya Geospatial in respect of the Services and replaces and supersedes all other agreements, representations and understandings. No materials submitted by the Client in connection with the Quote shall prevail over any contrary provisions in this Contract.
- Indiya Geospatial is an independent contractor and is not an agent or employee of the Client.
PERFORMANCE OF SERVICES
- The Services must be performed by Indiya Geospatial in accordance with these terms and conditions.
- Prior to the Commencement Date, the Client shall provide to Indiya Geospatial all necessary information and specifications relating to the Client’s requirements for the project as set out in the Quote. The nature and extent of the Services which Indiya Geospatial provides to the Client shall be determined on the basis of this Scope of Works. The Scope of Works shall be fully documented and agreed upon by Indiya Geospatial and the Client prior to commencing the Services.
- Indiya Geospatial must perform the Services with reasonable skill care and diligence.
- Unless otherwise agreed in writing, Indiya Geospatial will use reasonable endeavours to complete the Services during standard operating hours between 06:00 and 18:00 Monday to Friday and by the Completion Date. If a situation arises which requires Services to be provided outside the standard operating hours, reasonable attempts will be made by Indiya Geospatial to gain prior approval from the Client.
- Indiya Geospatial may at any time, by written notice to the Client, suspend performance of the Services to the extent it has been prevented, impeded, restricted or delayed by matters outside of its reasonable control. Indiya Geospatial may also suspend the performance of the Services where the Client is in breach of this Contract or has failed to pay amounts due. The Completion Date is extended for the period of suspension.
SITE AND ACCESS
- From the Commencement Date until the Completion Date the Client must provide sufficient and uninterrupted access to the Site to enable Indiya Geospatial to perform the Services.
- The Client must ensure that the Site is a safe working environment and complies with all occupational health and safety requirements and that any potential dangers are communicated to Indiya Geospatial before entry to the Site.
- The Site must be prepared by the Client prior to the Commencement Date. The Client must ensure that the working area is clear, dry, clean and free of materials, plant and equipment, and above all, a safe working environment.
- Indiya Geospatial is not responsible for providing task lighting, scaffold, stairs or the like on the Site.
- Any delays or rescheduling costs incurred by Indiya Geospatial as a result of the Client failing to comply with this clause 3 are deemed to constitute a Valid Variation.
Indiya Geospatial will provide a Project Team capable of providing the services specified in the Scope of Works. Members of the Project Team may vary from time to time subject to availability, requirements of other Indiya Geospatial projects; leave requirements, specific skill sets applicable to different stages of the project, and other factors which may arise from time to time.
- WARRANTY AND DEFECTS
- Within 6 months of completion of the Services (Warranty Period), the Client must notify Indiya Geospatial in writing if it considers there to be a Defect in the Deliverables or Services.
- Where the Client has notified Indiya Geospatial of a Defect within the Warranty Period, Indiya Geospatial must either (at Indiya Geospatial’s election):
- re-perform the Services; or
- pay the Client the reasonable costs of re-performing the Services.
- Notwithstanding anything to the contrary herein, the Client acknowledges that no representation, warranty or condition, express or implied, is given by Indiya Geospatial that the Services provided comply with the rules, regulations, laws and legislation of the place where the Services are being provided.
- Where the law implies any term or warranty into these terms and conditions which cannot be excluded, then the liability of Indiya Geospatial for any breach of such term will be limited in the manner permitted under section 64A of the Australian Consumer Law to either (at Indiya Geospatial’ election) supply of the Services again or payment of the reasonable cost of having the Services supplied again.
- The rights under this clause 5 are the Client’s sole and exclusive remedy in connection with a Defect in the Deliverables or the Services.
- The Client may instruct in writing a Variation to the Scope of Works.
- Indiya Geospatial may not vary the Scope of Works without the Client’s consent (which must not be unreasonably withheld or delayed).
- Subject to clause 4, a Variation is only valid and binding where it is in writing and signed by both parties (Valid Variation).
- Any additional services or costs necessary to comply with a change in Law after the date of the Contract must be treated as a Valid Variation.
- Variations must be valued according to (Valuation):
- any agreement by the parties in respect of the adjustment to the Fee for the Variation; and
- in the absence of any agreement, on a fair and reasonable basis, having regard to the rates and prices set out in the Quote where appropriate.
- Without limiting this clause 6, Indiya Geospatial may claim in any Valuation the reasonable costs including margin for the following activities: site visits, meetings and/or briefings, calculations, plan checking, issue of RFI’s, field survey work, quality assurance checks and processes, plans and/or sketches, delivery of survey data and filing.
- For each Valid Variation, the Fee must be adjusted according to the Valuation.
FEES & DISBURSEMENTS
- In consideration for the performance of the Services, the Client must pay the Fees specified in the Quote in respect of the provision of equipment, labour and ancillary services.
- The Client must reimburse Indiya Geospatial for all third party and out-of-pocket expenses reasonably and properly incurred in connection with the Services (Disbursements). Disbursements include (but are not limited to) consumables, air travel and freight, accommodation, title and survey searching fees, data licence fees and the like.
- Indiya Geospatial may claim payment for the Fee and Disbursements by issuing an invoice to the Client no more frequently than once per week in respect of the Services performed to such date (Invoice).
- Indiya Geospatial may claim payment from the Client in respect of amounts relating to the performance of Services involving any undertaking, engagement or work requiring interaction, Authority to Act, documentation or lodgement with any regulatory or statutory body or organisation which shall be paid in full prior to the lodgements relating to these Services (Claim).
- Where clause 11 applies, if the Client disputes the amount in the Invoice or Claim it must provide a payment schedule and its reasons for disputing those amounts in accordance with the SOPL.
- The Client must pay the Fees and Disbursements, including GST without any set-off or counterclaim whatsoever, to Indiya Geospatial within the Applicable Period from the date of the Invoice or Claim.
Goods and Services Tax (GST) is payable on the Fees and Disbursements. The amount of GST applicable to the Fees and Disbursements will be identified separately in each Invoice and Claim.
Where the Client has failed to make payment of an amount due under the Contract by the due date (Outstanding Amount), interest will accrue on the Outstanding Amount at the date of 12% per annum, calculated daily. Payment of the interest will not relieve the Client of the obligation to pay the Outstanding Amount.
SECURITY OF PAYMENT LEGISLATION
Where the Services relate to or are in connection with Construction Works, all claims for payment made by Indiya Geospatial are subject to the Security of Payment Legislation.
Indiya Geospatial may apply, or set-off, any Outstanding Amount against any sums which may be owed to the Client by any member of the Indiya Geospatial Group.
- The Client must to Indiya Geospatial on demand all legal costs (on a full indemnity basis), charges, duties and other expenses incurred by Indiya Geospatial:
- in respect of enforcing its rights under this Contract or the securities or other documentation required hereunder;
- in relation to registering, maintaining or releasing any security interest, charge or caveat (including the cost of registering any financing statement or financing change statement); or
- as a result of the Client failing to perform its covenants and obligations contained herein,
- Enforcement Costs include, but are not limited to the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector.
- Indiya Geospatial retains ownership of all Intellectual Property Rights in all Data prepared by it in connection with the Services.
- Indiya Geospatial reserves all present and future moral rights in Intellectual Property Rights in all Data.
- Indiya Geospatial’ Data must not be given, reproduced or disseminated, to any person, public authority, institution or organisation without the express written permission of a duly authorised representative of Indiya Geospatial.
- Indiya Geospatial grants the Client a licence to use the Data for the purposes of the Project, conditional upon the following:
- the licence applies only to the Project or that part of the Project to which the Data relates;
- Indiya Geospatial has completed the relevant Services or Deliverables; and
- all Fees and Disbursements properly due to Indiya Geospatial have been paid.
This Contract and all other information provided to the Client is confidential and the Client will not disclose it to any third party or use it for any other purpose.
EMPLOYMENT OF INDIYA GEOSPATIAL PERSONNEL
The Client acknowledges that Indiya Geospatial develops and trains its employees to a high standard in order to provide the highest level of service to its clients.
Accordingly, the Client, or a related entity or associate of the Client, may not make an offer to employ an employee of Indiya Geospatial, or otherwise procure or induce an employee to terminate his or her employment with Indiya Geospatial, except with the approval of Indiya Geospatial. Should any offer of employment by the Client or a related entity or associate of the Client to a Indiya Geospatial Group employee be made and accepted at any time from commencement of the Services until 12 months following completion of the Services, the Client shall recompense Indiya Geospatial to the value of 50% of the total remuneration package offered and accepted by the employee and the employee must not commence his or her employment with the Client, or a related entity or associate of the Client, until at least 3 months have elapsed since termination of his or her employment with Indiya Geospatial, such period to be spent off-Site, unless Indiya Geospatial otherwise approves.
Without limiting any other right or remedy, Indiya Geospatial may:
- suspend performance of the Services upon 3 days’ written notice to the Client in respect of an Outstanding Amount or other breach of this Contract by the Client; and/or
- have recourse to any security given by the Client including through the enforcement of any guarantee, security or bond and apply this in reduction of any Outstanding Amount.
- Indiya Geospatial may terminate the Contract:
- in the event of monies payable to Indiya Geospatial being outstanding for more than 20 Business Days;
- in the event of any other breach by the Client of its obligations under such Agreement, which breach is not remedied within 20 Business Days of written notice from Indiya Geospatial requiring the breach to be remedied;
- in the event the Client requires Indiya Geospatial to act unlawfully or unethically, or fails to provide an adequate Scope of Works and associated instructions;
- upon giving the Client 20 Business Days’ written notice of its intention to do so; or
- immediately, if the Client becomes insolvent, bankrupt, takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs.
- The Client may terminate its obligations under the Contract entered into with Indiya Geospatial in the event of a breach by Indiya Geospatial of the Contract, which breach is not remedied within 20 Business Days’ written notice from the Client requiring the breach to be remedied.
- Upon termination, the Client must pay all monies owed to Indiya Geospatial for Services performed up to and including the date of termination pursuant to these General Conditions as well as for the costs incurred by Indiya Geospatial in relation to demobilising personnel and equipment from Site.
LIMITATION ON LIABILITY
- To the maximum extent permitted by law, the aggregate liability of Indiya Geospatial arising under or in connection with this Contract (whether in contract, tort (including negligence), statute, equity or otherwise) is limited to the Fees payable under this Contract.
- Indiya Geospatial is not be liable under any circumstance for indirect, special or consequential loss or damage or for fines, penalties or punitive damages.
- Indiya Geospatial is not liable for any loss or damage to the extent caused or contributed to by inaccurate or incomplete information supplied by the Client relating to the Services or breach of this Contract by the Client.
Without limiting any rights under SOPL to refer a matter to adjudication, in the event of a dispute between the parties, either party may serve a notice on the other detailing matters of dispute and requiring that senior representatives of each party meet and attempt to settle the dispute within 5 Business Days. If the dispute is not settled by the senior representatives within 10 Business Days of the service of the notice, the parties shall agree to refer the dispute to mediation by a single mediator. Either party may initiate mediation, the costs of which shall be shared equally by the parties. If the parties cannot agree upon the identity of the mediator, the dispute shall be referred for mediation to a mediator nominated by the Institute of Mediators and Arbitrators.
The relationship between Indiya Geospatial and the Client shall be governed and construed in accordance with the laws of the state in which the Services are completed and the parties shall submit to the jurisdiction of the Courts of that state and waives any right to object to any proceedings being brought in those Courts.
If any part of these terms and conditions become void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. None of the terms and conditions will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to these terms and conditions.
The Client warrants and agrees that where it is, at the time of executing this document or at any time thereafter, a trustee of any trust (the “Trust”):
- to produce a stamped copy of the Trust deed (with all amendments) if and when requested by Indiya Geospatial;
- that it has full power and authority to execute, or continue with its obligations under, this Agreement on behalf of the Trust as it is doing so in its individual capacity and in its several capacity as trustee;
- that it shall be bound by the terms and conditions of this Agreement in its individual capacity, or further or alternatively, in its several capacity as trustee; and
- that the assets of the Trust shall be available to meet payment of its obligations to Indiya Geospatial.
Capitalised words in these General Conditions have the meaning given in the Quote. Otherwise:
“Applicable Period” means, where Indiya Geospatial is identified in the Quote as the (i) contractor, 25 Business Days or (ii) sub-contractor, 20 Business Days, or such shorter period where required by SOPL.
“Business Days” means a day other than a weekend or public holiday in the jurisdiction in which the Site is located.
“Construction Works” means construction works or activities to which the Security of Payment Legislation applies.
“Contract” means the contract identified in the Quote, of which these General Conditions form part.
“Data” includes proposals, tenders, documents, drawings, calculations, designs, plans and data.
“Defect” means any defect, error, damage, deficiency, fault or inadequacy in the performance, workmanship, quality or makeup of the Services or Deliverables that does not comply with the Contract.
“Deliverables” means the Data to be provided by Indiya Geospatial to the Client upon completion of the Services as specified in the Scope of Works.
“Intellectual Property Rights” means all intellectual and industrial property rights, including trademarks, copyright (including future copyright), inventions, patents, designs, circuits and other eligible layouts, database rights, including any application or right to apply for registration of any of these rights.
“Indiya Geospatial Group” means Indiya Geospatial, the parent (of every tier) of Indiya Geospatial and every subsidiary (of any tier) of such parent.
“Security of Payment Legislation” or “SOPL” means where the location of the Site is:
- the Australian Capital Territory, the Building and Construction Industry (Security of Payments) Act 2009 (ACT);
- the Northern Territory of Australia, the Construction Contracts (Security of Payments) Act 2004 (NT);
- New South Wales, the Building and Construction Industry Security of Payment Act 1999 (NSW);
- Queensland, the Building and Construction Industry Payments Act 2004 (Qld);
- South Australia, the Building and Construction Industry Security of Payment Act 2009 (SA);
- Tasmania, the Building and Construction Industry Security of Payment Act 2009 (TAS);
- Victoria, the Building and Construction Industry Security of Payment Act 2002 (VIC); and
- Western Australia, the Construction Contracts Act 2004 (WA),
as amended and replaced from time to time.
“Site” means the place identified in the Quote.
“Quote” means the order or quote accompanying these General Conditions or which incorporates these General Conditions by reference.
“Variation” means any change to the Services or method of performing the Services including by amendment, addition or omission.