1.    Definitions

In these General Terms and Conditions, capitalised terms used but not defined have, unless the context requires otherwise, the meanings attributed to them in the Project Proposal (and those terms are deemed to be incorporated in these general terms and conditions by reference). In addition:

“force majeure event” means acts of God; acts of war, terrorism, or other civil disturbance; industrial action; inclement weather; flood, earthquake, fire; epidemic; pandemic; or any other event beyond the reasonable control of the parties and which actually caused the delay;

“GST” means the goods and services tax as governed by A New Tax System (Goods and Services Tax) Act 1999 (Cth);

“intellectual property” means any intellectual or industrial property whether protected by statute, at common law or in equity, including any patent, invention, copyright, or design right (whether or not registrable), in any design, specification, process, technique, software, know how, trade secret, technical information, financial information, business method or confidential information; and

“Services” or “Works” means the services or works to be performed by AULDEC Solutions under the Head Contract as described in the Description section of the Project Proposal or otherwise agreed in writing between AULDEC Solutions and the Client.

2.    Agreement

Acceptance of a Project Proposal by the Client (as evidenced by the signing and dating of the Project Proposal by the Client Consultant named on Page 1 of the Project Proposal) creates a binding contract between AULDEC Solutions and the Client.  For clarity, the resulting Head Contract comprises:

2.1           the Project Proposal, including the Description, Inclusions, Assumptions, Exclusions, Variations, Schedules, Terms of Payment and Attachments referenced in or attached to the Project Proposal;

2.2           these general terms and conditions;

2.3           any amendment or variation to the Services or Works which AULDEC Solutions and the Client agree in writing; and

2.4           any special or other terms or conditions which AULDEC Solutions and the Client agree in writing form part of the Head Contract.

3.    Validity

Unless otherwise agreed in writing between AULDEC Solutions and the Client (or withdrawn by AULDEC Solutions prior to acceptance), a Project Proposal is valid and capable of acceptance by the Client for thirty (30) days from the date it is submitted to the Client by or on behalf of AULDEC Solutions (by a duly authorised representative of AULDEC Solutions).

4.    Price

Unless otherwise agreed in writing between AULDEC Solutions and the Client:

4.1           the Client must pay AULDEC Solutions the price stipulated in the

Price Schedule (which, for clarity, is based on the Contract Type specified in the Project Proposal, and the rates and/or quantities set out in the Price Schedule) at or within the time(s) specified in the Price Schedule, and in the manner stipulated in the Price Schedule or clause 7 below;

4.2           subject to clauses 4.3 and 4.4 below, the Grand Total specified in the Price Schedule includes all duties, taxes (including GST) and any other costs and expenses associated with delivery and/or supply of the Services or Works at or to the project site / premises stipulated in the Project Proposal;

4.3           AULDEC Solutions shall be entitled to pass through any increase in the cost of delivery and/or supply of the Services or performance of the Works between the date the Project Proposal is signed by the Client and the date of delivery to the Client of the Services or Works at cost (i.e., no mark-up);

4.4           the Client may direct AULDEC Solutions in writing to alter, add to or omit all or part of the Services or Works without cause, and for its own convenience (including, without limitation, for the purpose of having all or part of the Services provided, or Works performed by another supplier).  In that event, if the parties are not able to agree upon a revised price for the amended Services or Works (or any part of the Services or Works performed prior to the date of the written direction by the Client) within fourteen (14) days of the written direction being received, AULDEC Solutions shall be entitled to determine and notify the Client of its revised pricing for the amended Services or Works (which must be a reasonable price), the Head Contract shall be deemed to be varied in accordance with the revised price notified, and the revised price paid in the manner stipulated in the Price Schedule or clause 7 below; and

4.5           if any moneys due to AULDEC Solutions under the Head Contract remain unpaid after the due date, interest is payable on the amount due from but excluding the due date to and including the date upon which the moneys are paid. The rate of interest will be 5% per annum, calculated daily.

5.    Acceptance

Without limiting the Client’s rights under the Head Contract, in the event that any (or all) of the Services provided or Works performed by AULDEC Solutions under the Head Contract do not pass any acceptance test specified in the Project Proposal or are determined by a qualified expert not to comply with an applicable standard or law, AULDEC Solutions shall re-perform the relevant Service or Works which are found not to be in accordance with the requirements of the Head Contract.  For clarity:

5.1           the Services or Works will not be considered accepted by the Client until they have passed any acceptance tests set out in the Project Proposal and are in conformity with the requirements of the Head Contract and applicable standards or

5.2           unless otherwise agreed, AULDEC Solutions shall not commence providing the Services or performing the Works until the Client has provided all designs, specifications, drawings, and technical information including installation and operating manuals, and all other documents and things specified in the Project Proposal or reasonably required in connection with the Head Contract to enable the Services or Works to be performed and used for their intended purpose (as applicable);

5.3           Services or Works performed and not required to be tested will be deemed accepted by the Client 14 days after delivery unless AULDEC Solutions advises otherwise.  The inspection and acceptance referred to in this clause shall be without prejudice to any of AULDEC Solutions rights and remedies under the Head Contract or otherwise; and

5.4           the Client is responsible for the care of the Works, including the risk of loss or damage to such Works from the date of commencement of the works until the date of completion. The Client shall have title to and risk of loss of all completed and partially completed portions of the Works and any materials delivered to the Client with effect from the date that AULDEC Solutions receives payment in full.

6.    Time

6.1           The Client shall provide written confirmation to AULDEC Solutions 3 days prior to any scheduled supply of Services or performance of Works that such supply is still required to be made or performed at the time(s) and place(s) stipulated in the Project Proposal or otherwise agreed with AULDEC Solutions.

6.2           The Client may by notice in writing given at any time prior to the actual supply of the Services or performance of Works postpone the time for supply or performance, or request AULDEC Solutions to perform the Services or Works in instalments.

6.3           If: (a) the provision of Services or performance or Works by AULDEC Solutions under the Head Contract is contingent upon a supply of goods, materials or services by the Client or another supplier to the Client; and (b) the Client or a third party supplier to the Client fails to supply the required goods, materials or services by the time stipulated in the Project Proposal or otherwise agreed with AULDEC Solutions, the Client must pay AULDEC Solutions on demand as a debt due any amount payable by AULDEC Solutions to a third party under any contract under which the Services provided or Works performed are to be on-sold, together with any amount stipulated in the Project Proposal as liquidated damages in respect of the period thereafter up to the date upon which supply or performance is achieved.  AULDEC Solutions reserves its rights to claim actual damages for delay from the Client where no amount or ‘nil’ is stipulated for liquidated damages in the Project Proposal.

7.    Payment

7.1           AULDEC Solutions shall submit a claim for payment in accordance with the Price Schedule set out in the Project Proposal and accepted by the Client, such claim to be submitted by the next following 25th day of the month after acceptance.

7.2           Where the Price Schedule provides for periodic progress payments or payment by instalments or milestones, Auldec Solutions may submit a claim for payment of the amount due in respect of the relevant Services provided or Works performed after completion, and after acceptance by the Client, by the next following 25^th day of the month after the relevant payment period or instalment or milestone date (as applicable).

7.3           Each claim for payment under the Head Contract shall take into account all adjustments in accordance with the Head Contract for the period and in respect of the matters the subject of the claim, including without limitation, adjustments for any variation to the scope of the Services or Works (as applicable).

7.4           AULDEC Solutions may issue to the Client a statement setting out the amount payable and the reasons for any difference between the amount contemplated in the Price Schedule for the relevant Service or Work performed and the amount claimed for payment.

7.5           The Client shall pay AULDEC Solutions the amount of the claim due to AULDEC Solutions within 30 days after the end of the month in which the claim for payment is submitted.  A claim submitted after the 25th day but by the end of a month shall be considered to have been submitted in the following month.

7.6           If the Head Contract is a construction contract for the purposes of the Building and Construction Industry Security of Payment Act 1999 (NSW) or the Building and Construction Industry Security of Payment Act 2002 (Victoria):

(a)        any certificate issued by AULDEC Solutions in response to a payment claim is deemed to be a payment schedule for the purposes of that Act; and

(b)       the authorised nominating authority to whom any adjudication application may be made is the Resolution Institute (formerly the Institute of Arbitrators and Mediators Australia).

Any amount paid by AULDEC Solutions to any subcontractor or supplier of the Client pursuant to any notice of claim served to the Client by such subcontractor or supplier under the Contractors Debts Act 1997 (NSW) or the Building and Construction Industry Security of Payment Act 2002 (Victoria) shall be a debt due and payable by the Client to AULDEC Solutions.

8.    Insurance

AULDEC Solutions shall, until acceptance of the Services or Works (as applicable) by the Client and/or completion of the performance of the Services or Works pursuant to the Head Contract and expiry of the liability period in clause 9.1, at its own cost, procure and maintain any insurances compulsory under the laws in the State or Territory where the work is being performed for any loss of or damage to the Services, Works and/or related materials.

9.    Guarantee

Without limiting any of the Clients’ rights, or any warranty provided in the Head Contract or by operation of law:

9.1           AULDEC Solutions hereby guarantees the Services or Works against any omissions, defects or failures whether due in whole or in part from faulty design, materials or workmanship or any other cause which occurs (whether or not apparent) at any time from the date of acceptance and/or completion of all of the Services or Works until the date 12 months from the date the Services are put into commercial use, notwithstanding that such omissions, defects or failures come to the attention of the Client at any time after expiry of that period; and

9.2           If AULDEC Solutions is found by a court of competent jurisdiction to have breached its obligations under the Head Contract, AULDEC Solutions:

(c)        shall re-perform that part of the Services or Works which has been determined do not so conform with the Head Contract, and AULDEC Solutions shall be liable for all resulting costs and expenses incurred by the Client, including but not limited to, where applicable, any reasonable costs or expenses directly incurred by the Client in re-performing, testing, or re-commissioning the Services or Works; and

(d)       may, at its option, have any modification, replacement or resupply of the Services or Works undertaken by a third party or undertake the modification, replacement or resupply itself, and all resulting costs and expenses shall be borne by AULDEC Solutions.

10.   Warranty

AULDEC Solutions hereby warrants to the Client that:

(a)        the Services will be performed by AULDEC Solutions with due care, skill, and diligence in accordance with the standard of care normally exercised by members of the profession or trade under which the Services or Works are being provided to the Client; and

(b)       the Services or Works will comply with all applicable laws, regulations, standards, and codes.

11.   Materials Supplied by AULDEC Solutions

If the Project Proposal stipulates that AULDEC Solutions provide materials in connection with the Services to be provided or Works to be performed, then ALDEC Solutions:

11.1         shall provide the required materials in accordance with any patterns, designs, specifications, drawings, samples, or technical information specified in the Project Proposal or otherwise agreed with the Client; and

11.2         may submit a request for design change of materials to the Client in writing, with the request to be submitted with details of the design change purpose, the proposed change and any associated costing involved (“Design Change Request”).

For clarity:

11.3         ownership of all materials supplied by AULDEC Solutions in connection with Services or Works, and AULDEC Solutions’ intellectual property rights therein (if any), remain the property of AULDEC Solutions until such time as payment has been received for the materials by AULDEC Solutions in full; and

11.4         if a Design Change Request is accepted by the Client, the Head Contract shall be deemed to be varied accordingly.

12.   Materials Supplied by Client

If the Project Proposal stipulates that the Client provide materials in connection with the Services (“Client Materials”), then:

12.1         the Client shall provide to AULDEC Solutions any such materials and associated patterns, designs, specifications, drawings, samples, or technical information specified in the Project Proposal (or which the Client has otherwise agreed is required to be provided by the Client or a third party to enable AULDEC Solutions to supply the Services or perform the Works) in electronic format where possible; and

12.2         all such materials must be provided to AULDEC Solutions within the Head Contract’s limits, and AULDEC Solutions shall provide confirmation of receipt of Client Materials from the Client upon request;

12.3         all Client Materials (and the Client’s intellectual property rights therein, if any), remain the property of the Client;

12.4         AULDEC Solutions must return the Client Materials to the Client within 7 days after receipt of written notice requesting return of Client Materials and payment of any amounts due to AULDEC Solutions from the Client under the Head Contract; and

12.5         AULDEC Solutions must not use the Client Materials for any purpose except the supply of the Services to the Client.

13.   Design and Specifications

Design drawings, specifications, construction drawings, workshop drawings or any other documents prepared by or on behalf of the Client (“Design Documents”) are the Client’s sole responsibility. To the extent that AULDEC Solutions gives any approval, direction, or instruction to the Client, or provides information to the Client in connection with any Design Documents, this shall not:

13.1         relieve or reduce the Clients sole responsibility for the accuracy and correctness of the Design Documents;

13.2         release the Client from its obligations to provide AULDEC Solutions with accurate and correct Design Documents in connection with the Services to be supplied or Works to be performed by AULDEC Solutions under the Head Contract;

13.3         restrict AULDEC Solutions rights and remedies under the Head Contract; or

13.4         constitute acceptance by AULDEC Solutions that the Client has complied with its obligations under the Head Contract.

14.   Occupational Health and Safety

14.1         AULDEC Solutions shall comply with all applicable laws and regulations concerning health and safety (“HSE”) during performance of the Services or Works and, without limitation, comply with any HSE policies notified in writing by the Client as being applicable to the Services or Works performed under the Head Contract.

14.2         Prior to commencing any Services or performing Works on any site specified in the Project Proposal AULDEC Solutions will provide to the Client: (a) details and assessments for all hazardous products and materials used in connection with the Services or performance of the Works, and provide evidence of its proposed safety and environmental management program/system; and (b) risk assessments, method statements, and/or site safety plans or the like for the Services or performance of the Works as required by relevant safety authorities or on written request from the Client.

15.   Quality Assurance Control

AULDEC Solutions shall have in place an adequate quality assurance plan and shall provide to the Client such quality assurance documentation as requested by the Client (acting reasonably) and in accordance with any requirements specified in the Project Proposal or otherwise agreed between the parties.

16.   GST

16.1         If any supply of Services, Works or other goods or materials made under the Head Contract is subject to GST the party to whom the supply is made (“the Recipient”) must pay to the party making the supply (“the Supplier”), subject to issuing a Valid Tax Invoice, an additional amount on account of GST, such amount to be calculated by multiplying the consideration by the applicable rate of GST and paid to the Supplier at the same time as the consideration. This clause does not apply to the extent that a supply is expressed to be GST inclusive.

16.2         If a party is required to reimburse or indemnify the other party for a cost, expense, or liability (“Cost”) incurred by the other party, the amount of that Cost for the purpose of the Head Contract is the amount of the Cost incurred less the amount of any credit or refund of GST to which the party incurring the Cost is entitled to claim in respect of the Cost.

17.   Confidentiality

AULDEC Solutions shall keep the terms of the Head Contract and any Client Materials supplied under the Head Contract confidential and shall only disclose the same to those of its employees, servants, or agents necessary to enable AULDEC Solutions to perform its obligations under the Head Contract or as otherwise required by law.

18.   Intellectual Property

Unless otherwise specified in the Project Proposal, AULDEC Solutions hereby grants to the Client a perpetual, irrevocable, non-exclusive, royalty-free, transferable licence (with the right to sub-license) to use all intellectual property owned by AULDEC Solutions and used in connection with the performance of Services or works under the Head Contract.

19.   Breach and Termination

AULDEC Solutions may terminate the Head Contract by written notice to the Client in its absolute discretion at any time up to and including 14 days prior to the Start Date stipulated in the Project Proposal or otherwise agreed between the parties.  In addition, AULDEC Solutions may terminate the Head Contract by written notice to the Client if:

(a)        any services, works and or Client Materials specified in the Project Proposal and required by AULDEC Solutions in connection with the Services or performance of any Works are not supplied by the time(s) stipulated in the Project Proposal or otherwise agreed between the AULDEC Solutions and the Client;

(b)       the Client is in breach of a term of the Head Contract and fails to remedy the breach within 7 days of the receipt by it of a notice in writing from AULDEC Solutions specifying the breach and requiring the Client to remedy it;

(c)        a force majeure event (or any suspension of Services or Works) continues for more than three (3) months;

(d)       AULDEC Solutions determines that the Client is unable or unwilling to comply with its obligations under the Head Contract with due diligence, or in a competent manner; or

(e)       the Client becomes bankrupt or makes an assignment of its estate for the benefit of its creditors or makes a composition or other arrangement with its creditors or if, being a company, the Client goes into liquidation whether voluntary or compulsory (except for the purposes of reconstruction) or has a receiver appointed over all or any of its assets or if any person or corporation goes into possession of or appoints an agent overall of any of the assets of the Client and such termination is not prohibited by law.

20.   Dispute Resolution

If a difference or dispute between the parties arises in connection with the subject matter or interpretation of the Head Contract, including (but not limited to) a dispute concerning a claim in tort, under statute, or on any other basis in law or equity available under the law governing the Head Contract (“Dispute“), either party may by hand or registered post addressed to the delivery address of the other party give the other party a written notice of Dispute identifying and providing details of the Dispute and entitled Dispute Notice (“Dispute Notice“).

Within seven (7) days of receipt of a Dispute Notice, representatives of the parties having authority to bind the parties shall confer to seek to resolve the Dispute or agree on a method of doing so and whether that method shall be binding.  If a resolution or method of resolution has not been agreed within twenty-one (21) days of the service of Dispute Notice, the Chief Executive Officers of the parties (or their equivalent officer) shall confer for the same purpose as the parties’ representatives.  All aspects of such conference(s) shall be conducted on a ‘without prejudice’ basis.

Except for the enforcement of payment due under the Head Contract or to seek injunctive or urgent declaratory relief, and subject to any agreement to the contrary, neither party may institute legal proceedings in respect of any Dispute unless a Dispute Notice in respect thereof has first been given and then only after a period of twenty eight (28) days from receipt of such Dispute Notice has elapsed and the procedures detailed in this clause 20 have been complied with.

21.   General

21.1         (Limitation of liability) – Except as otherwise contemplated under these general terms and conditions, and to the extent permitted by law:

(a)        the total cumulative liability of AULDEC Solutions to the Client arising out of or in connection with the Head Contract for all loss, damage, cost, or expense suffered or incurred whether in contract or tort (including negligence), in equity, in restitution, by way of warranty or indemnity shall be limited to no more than 50% of the price stipulated in the Price Schedule (including GST);

(b)       AULDEC Solutions is not liable for any indirect, special, contingent, or consequential type losses or damages which include but are not limited to loss of actual or anticipated profits, loss of opportunity, loss of goodwill or loss of revenue;

(c)        subject to (a) and (b) above, AULDEC Solutions shall be proportionately liable to the extent that AULDEC Solutions caused or contributed to any claim, demand, proceeding, cost, expense, loss, liability, or damage arising under the Head Contract; and

(d)       AULDEC Solutions shall have no liability to the Client in respect of any matter in connection with the Head Contract unless the claim together with full particulars thereof is lodged with AULDEC Solutions within 14 days of the occurrence of the event(s) or circumstance(s) on which the claim is based.

21.2         (Force Majeure) – Neither party will be considered to be in breach of its obligations under the Head Contract to the extent that the performance of the relevant obligation is prevented or delayed by a force majeure event. Each party will use all reasonable endeavours to overcome the force majeure event as soon as possible.

21.3         (Severability) – If any provision or part of any provision of the Head Contract is unenforceable, such unenforceability shall not affect any other part of such provision or any other provision of the Head Contract.

21.4         (Waiver) – Any waiver by a party of strict compliance with any provision of the Head Contract shall not be effective unless in writing and signed by an authorised person of each of the parties.

21.5         (Governing Law) – The Head Contract shall be governed by the laws and jurisdiction of the State or Territory of Australia in which the Services are to be provided or Works performed, and the parties agree to submit to the non-exclusive jurisdiction of the courts of that State or Territory and any courts having appellate jurisdiction from them.

21.6         (Contra proferentem) – No provision of the Head Contract shall be construed adversely against one party solely on the basis that that party was responsible for the drafting of that provision.