Client Agreement Terms and Conditions

1.        Trustee for Rimmelzwaan Family Trust trading as eCoast Engineering (hereinafter referred to as ECE) shall provide to the Client the consulting services described in the accompanying letter or as detailed above.

2.        In performing the services ECE shall exercise all reasonable skill care and diligence of a reasonably prudent consultant in similar circumstances and in accordance with the reasonable direction and information provided by the Client.

3.        The Client will provide to ECE all such information as is available to the Client and the Client’s Consultants and Contractors and ECE shall be entitled to rely upon the accuracy and completeness thereof.  The Client recognises that it is impossible for ECE to ensure the accuracy, completeness and sufficiency of such information, either because it is impossible to verify or because of errors or omissions which may have occurred in assembling the information the Client is providing.  Accordingly, the Client agrees, to the fullest extent permitted by law to indemnify and hold ECE harmless from any claim, liability or cost (including reasonable solicitors fees and costs of defense) for injury or loss arising or allegedly arising from errors, unforeseen delays, omissions or inaccuracies in documents or other information provided by the Client to ECE.

4.        The Client agrees to pay all monies, including interest and additional fees due to variations, to ECE within 14 days of the date of invoice.  Monies not paid within that period shall attract interest from the date of invoice until payment at a rate of 18% per annum.  In addition, ECE will be reimbursed for the cost involved to retrieve the invoiced monies owed including document printing, communication charges, legal fees, debt collection fees, and miscellaneous services required until full payment is received.

5.        Debt Collection Services: Our hourly rate to coordinate debt collection services is $650.00 per hour + GST, in addition to the appointed debt collectors fees. This rate applies to all time spent on each account, including: Communication with debtors (phone calls, emails, filing, and letters), skip tracing (locating debtors), negotiation and settlement discussions, legal proceedings (if necessary), and internal company time spent on each account, such as case management, file review, and team communication related to specific debt collection matters. Please note this list provides examples of inclusions, and all time and costs dedicated to debt collection needs will be billed and 3rd party debt collection costs passed on.

6.        If the Client fails to make a payment to ECE in accordance with the terms of this Agreement, ECE may:

(a) Revoke Access: Revoke any certificates, software files, and documentation provided to the Client; and

(b) Demand Return of Materials: Require the Client to return all plans and documents related to the project to ECE.

7.        ECE may suspend work or cancel this contractual agreement if the Client:

(a)   Has breached any of the terms and conditions of this Agreement and has not remedied such a breach within 7 days of receipt of a written notice from ECE requiring it to remedy that breach;

(b)   Displays an intention not to be bound by this Agreement;

(c)       Becomes insolvent or appears unable to pay its debts;

(d)   Has monies payable to ECE being outstanding for more than 28 days.

Hourly rates for accrued time is billable at:

i) $180.00/hr +gst for RPEQ qualified engineers, and 

ii) $160.00/hr + gst for draftsmen, engineers and inspectors (non-RPEQ qualified). 

8.        Copyright of all drawings, reports, specifications, bill of quantity, calculations and other documents provided by ECE in connection with the project shall remain the property of ECE. Please note that any legally privileged, confidential, or private information contained in these materials is protected by copyright law. Such information may only be used by the intended recipient(s) for authorized purposes. Any unauthorized use, review, alteration, transmission, disclosure, distribution, printing, or copying of this information is prohibited.

9.        ECE shall be entitled to vary the fee (including additional fees) whenever the services are subject to obvious variations. 

Additional costs and delays may be required due to:

(a) Changes in facts or circumstances

(b) Attitude or conduct of other parties

(c) Alterations in client instructions

(d) Reasons beyond our control

(e) Delays in receiving instructions (causing greater costs due to the need to refresh)

(f) Assistance required from third parties

10. No Action shall lie against ECE at the suit of the Client after the expiration of one (1) year from the date of Invoice in respect of the final amount claimed by ECE pursuant to Clause 4.

11. ECE shall not be liable for any claim whatsoever by a third party arising out of or in relation to the Services or the project works and the Client indemnifies ECE accordingly.

12. It is a condition of ECE engagement that ECE shall not be liable to its Client for any liability or loss to the extent that it is the fault of the ECE Client.  Where negligence is found to have been contributory, each party shall bear responsibility in accordance with that party’s proportional fault.

13. The liability of ECE to the Client arising out of the performance or non-performance of the Services including liability for breach of contract, negligence duty of care, or howsoever arising shall not exceed the lesser of either:

(a)   The sum of $200,000; or

(b)   The Fee paid to ECE under the Contract Agreement; or

(c)        The cost of rectifying the works the subject of the consulting service.

14. If the Client suspends work or cancels the Contract, the Client shall meet all loss, damage cost or expense, incurred by ECE at the time of suspension or cancellation including time to raise final invoices and file.

15. In addition to any other method of service permitted by law, notices shall be deemed to be properly served if sent to the recipient by prepaid mail or personal delivery of which the details are disclosed herewith on this agreement by the Client.

 GENERAL TERMS AND CONDITIONS

1. Definitions and Interpretation

1.1 Definitions

In this Agreement, unless the context or subject matter otherwise requires:

• Address means a street address, postal address, or email address specified in the Retainer Schedule or Scope of Work or such other address as may be notified by the Client as its Notice Address from time to time.

• Agreement means the agreement between the Client and ECE on these Terms and Conditions, including any Retainer Schedule and Scope of Work.

• Australian Dollars or $ means the lawful currency of Australia.

• Authorised Representative means a person authorized to act on behalf of a party, as specified in the Retainer Schedule or as notified in writing.

• Business Day means a day, excluding Saturdays, Sundays, or public holidays, on which banks are open for business in Brisbane.

• Client means the person or entity described as such in the Retainer Schedule or Scope of Work.

• Fee means the fee payable by the Client to ECE, as specified in the Retainer Schedule or Scope of Work.

• Outgoings means the total cost of all outgoings, costs, and expenses properly assessed, charged, or incurred in respect of the Services and Contract Administration.

• Retainer Schedule or Scope of Work means the details and descriptions of services specified and provided to the Client during the term of this Agreement.

• Services means the engineering consultancy services provided by ECE to the Client as specified in the Retainer Schedule or Scope of Work.

• Term means the duration of this Agreement as specified in the Schedule or Scope of Work.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

(a) The singular includes the plural and vice versa. 

(b) References to persons include corporations, trusts, partnerships, and other legal entities, as well as individuals. 

(c) References to statutes include amendments and replacements of those statutes. 

(d) References to clauses, schedules, and attachments are references to clauses, schedules, and attachments in or to this Agreement. 

(e) References to this Agreement include its schedules and attachments.

2. Term

2.1 Agreement Term

ECE will provide the Services to the Client during the Term as reasonably required and within a reasonable period after being requested in writing by the Client.

ECE may provided forecast time estimates from time to time. However, these estimates are subject to change due to various factors, including but not limited to:

• Project Scheduling: Dependencies and adjustments within the overall internal project schedule may impact individual service timelines.

• Unforeseen Challenges: Surprises such as technical complexities, material availability, staff availability, or 3rd party delays can arise during projects.

• Client Requests and Industry Factors: Changes in client requirements, industry standards, significant weather events, or external factors can affect the scope and timeline of the Services.

• Good Faith Communication: Both parties agree to communicate openly and in good faith regarding any issues that may impact the estimated timeframe.

• Flexibility and Adjustments: ECE reserves the right to adjust the forecast time estimates based on the factors mentioned above. The Client will be notified of any significant adjustments and provided with revised timelines, or the Client may request updates.

• Liability for delays: ECE shall not be held liable for delays caused by unforeseen circumstances beyond its reasonable control.

2.2 Services Post Term or Outside Scope

The Client may request ECE to provide services outside the Term or Scope of Work, and if so :

(a) The Client will be deemed to have accepted these terms. 

(b) The Client will pay the same Fee or an hourly rate as determined by ECE for the additional services.

3. Fee

3.1 Payment of Fee

The Client agrees to pay ECE the Fees as outlined in the Retainer Schedule, Scope of Work, or as invoiced by ECE at its sole discretion. Payments will be made in the following manner:

(a) Monthly Accruals: As per the Retainer Schedule or Payment Schedule, payments will be made monthly for accrued fees; or
(b) Upon Completion of Stages: Fees will be payable upon the completion of specific work stages as described in the Scope of Work.

In the event of any Client delays between work stages, ECE reserves the right to suspend work and issue an invoice for the fees accrued to date on a monthly and pro-rata basis. Work will only recommence upon agreement with the Client, and after any necessary client information is provided to avoid unexpected additional costs, service iterations and delays.

3.2 Client to Pay Outgoings

The Client must pay ECE for all Outgoings incurred during the period, as invoiced.

4. Billing, Interest Charges, and Contact Person

(a) A tax invoice for the Fee and GST will be delivered to the Client upon acceptance of the Retainer Schedule or Scope of Work. 

(b) Invoices for Outgoings and other charges will be sent monthly or as incurred. 

(c) Invoices are payable upon receipt. Interest may be charged on overdue amounts. 

(d) ECE may retain Client documents until all invoices are paid. 

(e) Recovery costs, including legal and debt collection costs, will be payable by the Client.

5. Withholding Tax and Gross-Up

Invoices issued by ECE reflect the total amount billed, without any client deductions for withholding tax or other taxes. ECE shall not be responsible for any withholding tax or other taxes imposed.

6. Assignment

The Client must not transfer or assign its interest in this Agreement without ECE's prior written consent and compliance with ECE's requirements.

7. Discretion

All parties must acknowledge that:

7.1. An absolute discretion of ECE under the contract is not required to be exercised for the benefit of the third parties, such as clients and contractors.

7.2. ECE is bound to exercise any such absolute discretion in any particular manner or having regard to any particular consideration notwithstanding that such considerations might be stated in the contract documents elsewhere.

7.3. No provision of the contract conferring such an absolute discretion gives third parties any rights (including any right to make any claim arising out of the exercise or failure to exercise the discretion), and

7.4. The exercise or failure to exercise such an absolute discretion is not capable of being the subject of a dispute or difference and is not otherwise subject to review.