Terms and Conditions

These Standard Terms and Conditions of Engagement (Terms), and the Quote, must be read together as they form the agreement (Agreement) between you (“you”, “your”, “yours” or “the Client”) and Environmental Group Australia Pty Ltd (ABN 83 671 599 143) (Environmental Group Australia). A reference to “EGA”, “us”, “our” or “we” is a reference to Environmental Group Australia.

These Terms become binding when you:

Sign these Terms or the Quote; or

After having received a copy of the Terms, and despite the absence of a signature, you do any of the following:

If there is any inconsistency between any Quote and these Terms, the Quote will prevail over the provisions of the Terms to the extent of the inconsistency. 

2.1 Environmental Group Australia shall perform the Services with due care, skill, and diligence.

2.2 EGA shall communicate with the Client by and through EGA Representative, who shall have authority to bind EGA in respect of all matters arising out of or in connection with the Agreement.

2.3 Unless otherwise agreed in writing, EGA may rely on and treat the Documentation and the directions provided by the Client as accurate and correct.

3.1 The Client shall promptly provide EGA with all relevant Documentation, and instructions, and other information necessary to enable EGA to provide the Services.

3.2 The Client shall communicate with EGA by and through the Client’s Representative, who shall have the authority to bind the Client in respect of all matters arising out of or in connection with the Agreement.

3.3 If the Client becomes aware of any matter that will change the scope, character, quality, sequence or timing of the Services, then the Client shall promptly notify EGA of that matter.

3.4 The Client shall ensure that adequate public liability and contract works insurances are obtained and maintained for the course of the Project.

4.1 The Client agrees to pay EGA the Fee described in the Quote.

4.2 The Fee in the Quote is valid for thirty (30) days from the date of the Quote (unless a different period is set out in the Quote), provided works are commenced within three (3) months of acceptance and completed with six (6) months of acceptance . EGA reserves the right to review its position in relation to Fees should works not commence and not be completed within this period. Any variation to the Fee will be notified in writing to the Client.

4.3 In the event that:

a) the supply of the Services is delayed;

b) the Client requests additional services (or such additional services are reasonably required for the proper performance of the Agreement) from EGA that are not included in the original scope of services forming the Agreement;

c) EGA is required to deliver the Services in circumstances other than those expressly or reasonably anticipated to be associated with the delivery or supply of services of a similar nature; or

d) there is a change in the character, complexity, quality, sequence or timing of the Services, for reasons other than a breach of the Agreement by EGA, then EGA shall be entitled to vary the Fee accordingly.

4.4 All Fees, Reimbursable Expenses and other amounts expressed or determined to be payable under or in connection with the Agreement are exclusive of GST unless otherwise stated by EGA in writing;.

4.5 Unless agreed otherwise in writing, EGA shall issue progress claims at monthly intervals and the Client shall pay each claim in full within 30 days of the date of the claim by cheque, or by bank cheque, or by direct credit, or by any other method as agreed to between the Client and EGA. Notwithstanding the foregoing, the Reimbursable Expenses, may be invoiced by EGA as incurred and are payable within seven (7) days of the date of the invoice.

4.6 Unless noted otherwise within the Agreement, an allowance for visits to site to inspect work compliance with our design have been included in the Fee, however this should be considered an estimate only. Whilst we will make reasonable efforts to complete our works within this allowance, we will be entitled to an adjustment where events or matters factors beyond our control affect the performance of the Services.

4.7 EGA reserves the right to charge interest on overdue accounts on the daily overdue balance at the rate of 7% calculated daily and compounded monthly. Unless applicable laws or court rules permit otherwise, the interest charged will not exceed 10% per annum.

4.8 At the request of the Client, EGA may express an opinion of the probable cost of the Project. The probable cost is based on EGA’s experience as an environmental consulting firm and not as a quantity surveyor. The Client accepts and acknowledges the estimate is merely a guide and EGA accepts no liability for these estimates.

5.1 EGA shall not be liable to the Client for:

a) the acts, omissions or defaults of inadequate brief from the Client or other contractors and/or consultants engaged by the Client (including consultants or contractors engaged by EGA as agent for the Client);

b) any changes, alterations, or additions to the Services made by the Client or third parties without the express prior written approval of EGA;

c) any Services that are not performed in accordance with the Agreement, unless EGA is notified in writing of the non-performance within one (1) year of the provision of (or failure to provide) those Services;

d) 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;

e) any financial cost for extra construction costs related to latent site conditions, unforeseen elements, or general design improvements, or alternative design solutions;

f) EGA accepts no liability for any new or pre-existing defects or Building Code and Australian Standards violations related to the current use of the Client’s asset; 

g) EGA accepts no liability for temporary works (whether constructed or enabled by EGA or any other person) required to allow occupation and/or use of the Client’s property, premises, equipment, land, or other assets, prior, during and post construction, and the Client retains full responsibility for any loss or liability incurred by the Client or any other person arising out of or in connection with such temporary works.

5.2 Any reports, opinions or advice produced by EGA under or in connection with the Agreement are provided solely for the benefit of the Client and for the purpose set out in (or if no such purpose is set out, then the purpose that can be reasonably inferred from) the Agreement, and may not be used or relied upon by any other person or for any other purpose, nor may such reports, opinions or advice be quoted in whole or in part or otherwise referred to, without EGA’s prior written consent, and EGA assumes no liability to any third party because of any reliance by such third party on the same.

5.3 While we take reasonable care to ensure that representative samples are taken at a site, the Services are otherwise performed by way of desktop assessment of the samples collected and we are not liable and disclaim, to the fullest extent permitted by law, all liability arising out of or in connection with:

5.4 Notwithstanding any other provision of the Agreement, EGA shall have no liability (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) under or in connection with the Agreement for loss of use, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs, or for any special, indirect or consequential loss. Otherwise, EGA’s maximum aggregate liability (whether for breach of contract, under indemnity, negligence, or on any other legal or equitable basis) under or in connection with the Agreement is limited to the amount paid by the Client to EGA under the Agreement during the twelve (12) months period immediately preceding the first event giving rise to a claim.

5.5 To the extent permitted by law, are to be discharged from all liability in respect to the Services after the expiration of one (1) year from the date of final invoice. The client shall not be entitled to commence any action or claim whatsoever against EGA.

5.6 If, and to the extent that, any provision of this clause 5, is void as a result of the Australian Consumer Law or otherwise, then EGA’s liability for a breach of a condition or warranty is limited, at EGA’s discretion, to the supplying of the relevant Services (or part thereof – as the case may be) again, refund or the payment of the cost of having the Services (or part thereof) re-supplied.

5.7 For the avoidance of doubt, in this clause 5 reference to EGA includes reference to EGA’s related bodies corporate, officers, directors, employees, agents, subcontractors, and sub-consultants.

6.1 If either party commits a substantial breach of the Agreement, the other party may give to the party who committed the breach a written notice to show cause. A notice to show cause must state that it is a notice given under this clause, specify the alleged breach with reasonable details, require the party who committed the breach to show cause in writing why the party giving notice should not terminate the Agreement and must specify a date (which must be not less than 10 Business Days after the notice is served) by which the party who committed the breach must show cause.

6.2 Substantial breaches include suspension of work other than as permitted under the Agreement, failure to proceed with due care, skill and diligence and failure of the Client to pay EGA the Fee, or any other amounts under the Agreement.

6.3 If the recipient of a notice to show cause fails to show reasonable cause why the other party should not terminate the Agreement within the time specified in the notice, the other party may, by further written notice terminate the Agreement.

6.4 Either party may terminate the Agreement without notice if the other party is subject to an Insolvency Event. This right is in addition to any other rights under the Agreement.

6.5 If the Agreement is terminated for any reason, the Client must pay to EGA the applicable portion of the Fee for the Services performed prior to the date of termination together with all Reimbursable Expenses, and all reasonable costs and expenses incurred by EGA prior to the date of termination which would have been payable had the Agreement not been terminated.

7.1 All intellectual property created by EGA before the date of the Agreement (including all modifications to such intellectual property) remains vested in EGA.

7.2 All Intellectual Property Rights in all drawings, reports, specifications, bills of quantities, calculations and other documents or materials created by or for EGA in connection with the Services shall remain vested in EGA (EGA Materials).

7.3 EGA grants to the Client a non-exclusive, non-transferrable, royalty free licence to use, adapt, reproduce, and publish any of the EGA Materials for the purposes of benefiting from the Services in order to complete the Project as anticipated by the Agreement.

7.4 The Client grants EGA an irrevocable, royalty free licence to use and manipulate all Intellectual Property Rights in any information, documents, and other particulars which the Client provides to EGA to the extent reasonably necessary for EGA to perform the Services.

8.1 If EGA considers it appropriate to do so, EGA may, with the Client’s prior approval, which shall not be unreasonably withheld or delayed, engage another consultant to assist in specialist areas.

8.2 Unless otherwise agreed by the parties, these costs will be treated as outgoings and they will be charged at cost plus 20%.

8.3 The Client agrees to indemnify and keep indemnified EGA in respect of any fees, costs, expenses, and any claim (including all reasonable legal costs and expenses) whatsoever in relation to work performed by the consultant.

8.4 By appointing a consultant, EGA does not assume a duty of care and gives no warranty, guarantee or representation about the professional capacity, reliability of the consultant.

9.1 Each party agrees must treat Confidential Information confidential, provided that, either party may make such disclosures in relation to the Agreement as is reasonably necessary:

10.1 EGA is not liable or in breach of the Agreement for any delays or failures in performance of the Agreement which result from circumstances beyond the reasonable control of EGA.

10.2 If such circumstances continue for a continuous period of more than 60 days, either party may terminate the Agreement by written notice to the other party.

11.1 The Agreement is governed by the laws of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

11.2 The Agreement constitutes the entire agreement between the parties, superseding any prior agreements.

11.3 No right under the Agreement shall be deemed to be waived except by notice in writing.

11.4 The Terms may not be varied or amended except in writing signed by the parties.

11.5 If any provision of the Agreement is or becomes legally ineffective, under common law or legislation, the ineffective provision may be severed from the Agreement which otherwise continues to be valid and operational.  The parties will agree on an arrangement having a legal and economic effect which will be as similar as possible to the ineffective provision.

11.6 The Agreement does not create a relationship of employment, agency or partnership between the parties.

11.7 Termination of the Agreement will not end those provisions that are capable of surviving the ending of the Agreement.

Agreement has meaning given to it in clause 1.1.

Business Day means a day which is not a Saturday, Sunday or public holiday in NSW.

Client has meaning given to it in clause 1.1. 

Client Representative means the person appointed by the Client from time to time to act as the Client’s representative to exercise the Client’s functions under the Agreement.

Confidential Information of a party means any information marked as confidential or which by its nature the other party knows or ought to know is confidential (regardless of the form of the information and when it was acquired) and includes trade secrets, technical knowledge, concepts, designs, plans, precedents, processes, methods, techniques, know-how, innovations, ideas, procedures, research data, financial data, databases, personnel data, computer software and programs, customer and supplier information, correspondence and letters and papers of every description including all copies or extracts of same relating to the affairs or business of the party. Confidential Information excludes information that:

Documentation means all information supplied by or on behalf of the Client to EGA by electronic or other means for the purposes of the Agreement.

Fee means the fee payable for the Services pursuant to the Agreement.

Quote means the quote that these Terms are incorporated in or attached to (including any modifications to such Quote that might be agreed by the parties via email correspondence) and any subsequent quotes issued by EGA to the Client (except where such subsequent quotes incorporate different or amended terms).

Insolvency Event means any one or more of the following circumstances:

Intellectual Property Rights means copyrights, trademarks, design rights, service marks, patent, semiconductor or circuit layout rights, trade secrets, know-how, database rights, or other rights in the nature of intellectual property rights (whether registered or unregistered), or any right to registration of such rights, existing anywhere in the world, or protected by statute from time to time.

Project means the project carried out by the Client for which the Services form part of.

EGA Representative means the person appointed by EGA from time to time to act as EGA’s representative to exercise EGA’s functions under the Agreement.

Reimbursable Expenses means all payments made to third parties which are necessary to enable EGA to carry out the Services.

Services means the works to be carried out by EGA for the Client in connection with the Project pursuant to the Quote.