Environmental Site Services’ Terms of Agreement

1.0 INTRODUCTION

These Terms of Agreement and Scale of Fees apply to work carried out by Environmental Site Services. “ENVSS” shall mean Environmental Site Services. The “Client” shall mean and include the body or person with whom ENVSS contracts for or in relation to the performance of functions or the provision of goods or services and, in the event that the Client is an incorporated body, shall include related corporations as defined in the Corporations Act. “Subcontractor” shall include:

a. any person, firm or company with whom ENVSS may arrange for any work to be performed for the Client, and

b. any person who is now or hereafter a servant, agent or subcontractor of any person, firm or company referred to in (a) above.

2.0 SCOPE OF RESPONSIBILITY

2.1 All goods or services provided by the ENVSS are subject only to these Terms. Except where necessarily incorporated by statute, no other term, condition or warranty shall be incorporated herein unless specifically agreed in writing by ENVSS. In particular, these Terms take precedence over any terms in a client purchase order and any other document provided by a party whether before or after the date of issue of these Terms.

2.2 ENVSS undertakes to exercise reasonable care in accordance with standards ordinarily exercised by members of the profession generally who practice in the same locality and under similar conditions. There shall be no liability whatsoever in respect of any failure to exercise a degree or level of care beyond such reasonable care.

2.3 The Client will indemnify and hold ENVSS harmless against all claims, costs and demands (including in respect of negligence) by third parties in respect of the service concerned.

2.4 The Client acknowledges that in the event of ENVSS having failed to exercise reasonable care, ENVSS’s liability, if any, shall be absolutely extinguished after the expiration of twelve months from the date of ENVSS’s invoice in respect of the service.

2.5 In the event that ENVSS is liable to the Client for failure to exercise reasonable care, such liability shall be limited to the greater of:

  • the amount of the fee actually paid by the Client to ENVSS for the service concerned (to a maximum of $25,000) or,
  • any other amount agreed in writing between the Client and ENVSS.

2.6 Where legislation implies in these Terms any condition or warranty (“Prescribed Conditions”) and that legislation avoids or prohibits a contract excluding or modifying the application of the Prescribed Conditions, then the Prescribed Conditions will be deemed to be included in these Terms but the liability of ENVSS for a breach of any of the Prescribed Conditions is limited, at the option of ENVSS, to either:

  • The supplying of the services again;
  • The payment of the cost of having the services supplied again.

2.7 If ENVSS is liable to the Client for any loss or damage arising in connection with any goods or services provided by ENVSS pursuant to this Agreement or otherwise, the Client’s entitlement to recover damages from ENVSS shall be reduced by such amount as fairly reflects the extent to which any act, omission or negligence of the Client or any third party caused or contributed to such loss or damage.

2.8 Under no circumstances, whether as a result of any act, neglect or default or otherwise howsoever, shall ENVSS have any liability for or in relation to any work, reports, information, plans, designs, or specifications supplied or performed by any third party, including a third party engaged by or at the suggestion of ENVSS.

2.9 The Client acknowledges that:

  • ENVSS does not supervise the work of others. In the case of work undertaken by others pursuant to directions from ENVSS, ENVSS is responsible for exercising reasonable care in giving the directions, but is not responsible for the manner in which the directions are carried out;
  • Documents (including reports) required by ENVSS’s servants are signed by them, for and on behalf of ENVSS and not in any personal capacity
  • the copyright in all documents prepared by or at the request or direction of ENVSS shall be and remain the property of ENVSS;
  • It will not supply or permit any report of ENVSS to be seen by or given to any third party unless that report has incorporated in or attached to it these Terms;
  • contaminated material, including soil, sediment, water, air and/or manufactured material, collected by ENVSS during the conduct of the services shall remain the property of the Client until properly disposed of according to the Client’s instructions.

2.10 For the purposes of this Clause and without limiting Clause 2.9 the Client acknowledges that ENVSS is contracting as principal for and on behalf of its servants, agents and Subcontractors. The servants and agents of ENVSS shall not be liable to the Client in respect of any loss or damage suffered by the Client as a result of goods or services provided by ENVSS, nor for any consequential loss or damage suffered by any third party. The loss or damage referred to shall mean and include loss or damage caused by the negligence or willful act or default of ENVSS, its servants or agents or others whether or not such loss or damage is foreseeable or contemplated by ENVSS.

2.11 Unless advised otherwise by the Client in writing, ENVSS can use information regarding the project which is the subject of this Agreement in any promotional material it may prepare or use.

3.0  GENERAL 

3.1  Disputes. In the event that a dispute should arise relating to the performance of the services to be provided under this Agreement and should that dispute result in litigation it is agreed where ENVSS prevails that it shall be entitled to recover all reasonable costs incurred in the defence of the claim, including staff time, court costs, legal fees assessed on a solicitor and client basis and other claim related expenses.

3.2 Termination. This Agreement may be terminated by either party upon seven (7) days written notice in the event of substantial failure by the other party to perform in accordance with the terms hereof. Such termination shall not be effective if that failure has been remedied before expiration of the period specified in the written notice. In the event of termination ENVSS shall be paid for services performed to the termination notice date plus reasonable termination expenses. In the event of termination, or suspension for more than three (3) months prior to completion of all reports contemplated by this Agreement, ENVSS may complete such analyses and records as are necessary to complete their files and may also complete a report on the services performed to the date of notice of termination or suspension. The expenses of termination or suspension shall include all fees and costs of ENVSS in completing such analyses, records and reports. If ENVSS is prevented by circumstances beyond its direct control from performing the services the Agreement shall end without prejudice to the accrued rights of either party. The Agreement shall either survive the death or insolvency of the Client and his rights and obligations shall pass to his successors, receiver, administrator or liquidator, or ENVSS may elect to immediately terminate the services and all fees and costs to the date of termination shall be due and payable to ENVSS as a secured creditor against the tangible assets of the Client.

4.0 INTRODUCTION TO SCALE OF FEES

Our fees scale is based on ACEA recommendations for time based charges. Being directly related to salaries, they are subject to increases in CPI and to movements in wage levels. Our services for a particular project are on a schedule of rates, unless otherwise stated, so that invoices are for actual hours and expenses which reflect the quantity of work carried out. Where an estimate of cost is provided, it is based on available information in relation to the agreed scope of work. While endeavors are made to complete the work as proposed to the estimate, unexpected conditions may cause the scope of work to change. Where practical, ENVSS will advise you if it appears likely that the scope of work will be significantly changed.

5.0 CURRENCY OF FEE SCALES

The fees and charges set out herein apply to all work carried out from the date of revision shown above except as increased from time to time in accordance with increases in the Consumer Price Index from the date of the CPI increase for all projects regardless of their status at that time. ENVSS reserves the right to vary these fees and charges without notice.

6.0 PROFESSIONAL & TECHNICAL STAFF

All time spent on an assignment, including consultations, planning, inspections, preparing samples or equipment, travelling, delays or interruptions caused by inclement weather, industrial unrest, bogging of equipment, site traffic ability problems or other conditions beyond the direct control of ENVSS, field testing, analysis, calculation, assessment, drafting, word processing, presentation of results, interpretation and reporting will be charged at the rates per hour as shown in the cost estimate of the proposal, except for the time spent on standard laboratory tests or other agreed unit rates work performed as a service by ENVSS.

7.0 LABORATORY TESTING

Laboratory tests, performed as a service by ENVSS, are charged in accordance with the Schedule of Rates for Standard Tests (available on request from the laboratory performing the work). Special tests not covered by the Schedule or tests to procedures other than those shown will be charged at the hourly rate appropriate to the personnel involved. Where tests are carried out by others, charges will be in accordance with 9.0 “Reimbursable Expenses”.

8.0 SPECIALISED EQUIPMENT

Specialised equipment will be charged in accordance with the Schedule of Rates for Specialised Equipment (available on request). Equipment not covered by this Schedule will be charged in accordance with 6.0 “Reimbursable Expenses”.

9.0 REIMBURSABLE EXPENSES

Expenses incurred by ENVSS or its employees in the course of, or attributable to, a particular assignment will be charged for as set out below.

9.1 Motor Vehicle Use. Use of private, hired or Company motor vehicles in the course of an assignment will be charged at the following rates. These rates do not cover the travelling time of personnel.

a Motor car $0.95/km c 4WD $1.20/km
b One tonne utility $1.00/km d Hired vehicles direct cost + 10%

9.2 Airfares. Air flights undertaken as part of a project will be charged at standard economy rates plus 10%, unless otherwise approved by the Client.

9.3 Other Expenses. All other project related expenses are the responsibility of the Client. Where such expenses are processed and paid by ENVSS they will be charged at cost plus a service fee of 10%. Such expenses include but are not limited to:

  • Services of other consultants, contractors, laboratories, computer bureaus, printing services and the like.
  • Hire of plant and equipment such as drilling equipment, earthmoving equipment or other plant as required, including cost of travel, delays associated with access, inclement weather, bogging of vehicles and equipment, or any other delays not readily avoided.
  • Transportation of personnel, equipment and samples. Living expenses of personnel involved in assignments away from the city in which the staff normally reside.
  • Expendable items installed in the ground or works, for example groundwater monitoring wells, dust collection gauges, weather stations, etc.
  • Unusual equipment, miscellaneous items, and services specifically required for the assignment, e.g. maps, charts or aerial photographs, special stationery, printing, photography, permit fees.
  • Restoration of any damage to property or services not readily avoided.
  • Special insurance required for particular projects.

Additional copies of reports to the 2 normally provided will be charged at commercial copying rates. Further storage or transfer of samples will be at the Client’s expense.

10.0 TERMS OF PAYMENT

Progress invoices are issued on a regular basis; payment in full of each invoice is due within 14 days of issue. If the Client does not pay any invoice within the due time, ENVSS may at not less than one business day’s notice suspend the provision of services hereunder until payment. At the option of ENVSS, interest may be charged on the daily balance of overdue accounts at the same rate as the maximum overdraft rate fixed by Bankwest, plus 2.5% without relieving the Client of his obligation to pay the account. ENVSS shall also be entitled to recover as a debt all costs, legal fees, and expenses on solicitor and client basis, court costs and fees, collection agency charges paid or due for payment by ENVSS and such further sums as will fully recompense ENVSS for all its costs, expenses and losses incurred in respect of failure, refusal or default of the Client to pay in full as aforesaid.

11.0 PROPOSALS

Where ENVSS has submitted a proposal for an assignment, circumstances may require departure from the method or personnel proposed. ENVSS shall be entitled to vary the method or personnel as required and shall have no liability in respect thereof.

12.0 GOODS & SERVICES TAX

The charges due and payable to ENVSS will be increased, or a separate charge will be imposed, on account of the GST payable in connection with the sale or supply of our services or any other thing.