A S P Consulting (Melbourne) Limited, hereafter referred to as ‘ASP’.
"Client" means the person, firm, company, or organisation who purchases Services from ASP.
1.2 "Confidential Information" means all records, reports, data and other information and know‐how belonging to either party which are disclosed to the other as a result of the Contract other than that which is already in its possession or the public domain other than a result of a breach of condition 14.
1.3 "Contract" comprises these General Conditions and any special conditions agreed between the parties and any specification for the Services as set out in the Proposal.
1.4 "Intellectual Property Rights" means all copyright and related rights, patents, right to inventions, utility models, design rights, registered design, database right, topography rights, moral rights, rights in confidential information (including know‐how and trad e secrets) trademarks, service marks, trade, business and domain names, rights in trade dress or get‐up, rights in goodwill or to sue for passing off, or other proprietary rights of a similar or equivalent nature whether registered or unregistered and including all applications for and renewals or extensions of such rights, arising in the United Kingdom or anywhere in the world.
1.5 "Project" the project described in the Proposal.
1.6 "Proposal" means ASP’s proposal for services to be delivered to the Client under a Contract.
1.7 "Services" the services to be provided by ASP under the Contract together with any other services which ASP provides or agrees to provide to the Client.
1.8 "Site" means the site set out in the Proposal.
1.9 Unless otherwise expressly agreed in writing by ASP every proposal of work subsequent to the Proposal shall be subject to these conditions
1.10 The headings in these General Conditions are inserted only for convenience and shall not affect their construction.
1.11 A reference to a statute or statutory provision is a reference to it as it is in force for the time being, taking account or any amendment, extension, or re‐enactment and includes any subordinate legislation for the time being in force made under it.
2.1 The Client’s acceptance of a Proposal for Services constitutes an offer by the Client to purchase the Services specified in it on these General Conditions and on any special conditions set out in the Proposal. ASP shall accept such offer by a written acknowledgement or, if earlier, by ASP starting to provide the Services where upon a contract for the supply and purchase of those Services on these General Conditions will be established. The Client's standard terms and conditions (if any) attached to, enclosed with, or referred to in any acceptance, purchase order or other document shall not govern this Contract.
2.2 The Proposal is given to the Client by ASP on the basis that no Contract shall come into existence except in accordance with condition 2.1. The Proposal is valid for the period stated in such Proposal or, if none is stated, for 30 days from the date of the Proposal.
2.3 The Contract comprises the entire agreement between the parties to the exclusion of all other terms and conditions, prior or collateral agreements, negotiations, notices of intention and representations.
2.4 These General Conditions shall be subject to any special conditions as set out in the Proposal. In the event of any inconsistency, the special conditions shall prevail.
3.1 ASP shall perform the Services at the Site or elsewhere as is reasonably necessary for the due performance of them.
3.2 The compliance with any relevant rules and regulations and the obtaining of any necessary licences, permits, consents, approvals, or other matters of a like nature necessary to enable ASP to provide the Services to the Client shall be the responsibility of the Client.
4.1 The Client shall provide to ASP its agents, sub‐contractors, and employees, in a timely manner, at all reasonable times and at no charge, access to the Site or any site other than the Site where the Services are to be performed, for the purpose of performing the Services.
5.1 The Client shall be responsible for and shall pay any extra costs incurred by ASP because of any discrepancies, errors or omissions in drawings, documentation, or other information supplied in writing by the Client, whether they have been approved by ASP or not, provided that such discrepancies, errors, and omissions are not due to inaccurate drawings or information supplied in writing to the Client by ASP.
6.1 Subject to conditions 5, 6.2 and 6.3, the fee for the Services shall be as set out in ASP's Proposal or as otherwise varied from time to time by agreement in writing between ASP and the Client. All charges quoted under the Contract are exclusive of value added tax which where appropriate shall be added to the price at the prevailing rate.
6.2 Unless otherwise agreed in writing, the rates set out in the Proposal are based on the cost of performing the Services at the Site. If any extra costs are incurred by ASP in carrying out the Services or any part thereof other than at the Site (including, without limitation, equipment hire, room hire, and additional time spent on site) ASP shall be entitled to recover such extra costs from the Client.
6.3 The Client shall in addition to the fees for the Services and the costs referred to in condition 6.2, reimburse to ASP at cost all reasonable hotel, subsistence, travelling and other ancillary expenses properly incurred by individuals whom ASP engages in connection with the Services.
7.1 On completion of the Services, or as otherwise agreed at stages of the Services, an invoice will be sent to the Client for the fees, costs and expenses referred to in conditions 5 and 6.
7.2 Subject to any terms of payment stated in the Proposal payment of each invoice shall be made in full and in cleared funds, without deduction or set‐off, within 28 days of the date of invoice. Time of payment shall be of the essence of this Agreement.
7.3 ASP may (without prejudice to any other right or remedy) charge interest on any overdue amount at the rate of 3% above the base rate of HSBC PLC from time to time before and after judgment and suspend all Services until payment has been made in full.
7.4 Notwithstanding any other provision of the Contract, all sums payable to ASP under the Contract shall become due immediately on termination. This condition, 7.4, is without prejudice to any right to claim for interest under the law or any such right under the Contract.
8.1 When required to give a decision on any matters properly referred to it by ASP, the Client shall notify ASP of its decision in such reasonable time or, if earlier, within such period as agreed between ASP and the Client, so as not to delay or disrupt the performance of the Services.
8.2 The Client shall:
8.3 The Client shall be liable to pay to ASP, on demand, all reasonable costs, charges or losses sustained or incurred by ASP (including any direct, indirect or consequential losses, loss of profit, loss of reputation, loss of or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Client's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to ASP confirming such costs, charges and losses to the Client in writing.
9.1 Except as expressly agreed between ASP and the Client in writing, neither party grants to the other any right or license to copy or use any written or oral information, material or invention protected by any Intellectual Property Rights subsisting prior t o the Contract and vested in that party.
9.2 ASP shall own any Intellectual Property Rights arising in the course of the Services and may apply for protection for the same throughout the world in which event the Client shall provide such assistance as is requested for the protection to be obtained. ASP licenses all such Intellectual Property Rights to the Client free of charge and on a non‐exclusive basis to such extent as is reasonably necessary for the Client to make use of the Services as provided for in the Contract.
10.1 ASP may with the written consent of the Client (such consent not to be unreasonably withheld or delayed) publish alone or in conjunction with any other person any article photographs or other illustrations relating to the Services.
10.2 Any report provided by ASP is confidential to the Client and is not to be passed on to or relied upon by any third party. A person who is not a party to the Contract shall not have any rights under or in connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
11.1 The Services shall be provided by ASP to the Client from the date specified in the Proposal or as otherwise varied from time to time by agreement between ASP and the Client in writing.
11.2 The Services shall continue to be supplied until the Project is completed or the Services provided, or, if earlier, the Contract is otherwise terminated in accordance with this condition 11.
11.3 ASP shall have the right to terminate the Contract with immediate effect at any time on written notice if the Client:
11.4 Termination of the Contract shall be without prejudice to the accrued rights of either party and in particular ASP shall be entitled to retain all payments previously received and to receive payment in respect of work carried out under the Contract for which no payment has been received at the date of termination.
12.1 No variation to the Contract shall be binding unless agreed in writing by ASP and the Client.
13.1 ASP undertakes to carry out the Services with all reasonable skill, care, and diligence.
13.2 ASP shall use reasonable endeavors to meet any performance dates set out in the Proposal, but any such dates shall be estimates only and time shall not be of the essence in respect of such performance dates.
13.3 ASP shall use all reasonable endeavors to observe all health and safety rules and regulations and any other reasonable security requirements that apply at the Site or at any other site at which the Services are to be performed and that have been communicated to ASP under condition 8.2.3 provided that it shall not be liable under the Contract if, as a result of such observation, it is in breach of any of its obligations under the Contract.
14.1 Neither party shall use any Confidential Information for any purpose other than in connection with the performance of the Services or disclose any Confidential Information without the prior written consent of the other to any person other than to employees, agents or sub‐contractors to whom disclosure is necessary to enable performance of the Services and each party shall ensure that such employees, agents or sub‐contractors are subject to obligations of confidentiality corresponding to those which bind the party concerned. This condition 14 shall survive termination or expiry of the Contract.
15.1 If ASP's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Client, its agents, sub‐contractors or employees, ASP shall not be liable for any costs, charges or losses sustained or incurred by the Client arising directly or indirectly from such prevention or delay.
15.2 This condition 15 sets out the entire financial liability of ASP (including any liability for the acts or omissions of its employees, agents and sub‐contractors) to the Client in respect of:
15.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
15.4 Nothing in these Conditions limits or excludes the liability of ASP for death or personal injury caused by negligence or for any damage or liability incurred by ASP as a result of fraud or fraudulent misrepresentation by ASP.
15.5 Subject to conditions 15.3 and 15.4:
16.1 If either party is unable wholly or in part to carry out any obligation (except an obligation or pay) under the Contract due to any cause beyond its control (which shall include industrial disputes) such party shall give to the other party prompt notice thereof with full details whereupon such obligation shall be suspended so far as it is affected by such cause during the continuance of such cause provided that the party affected shall take all reasonable steps to eliminate the cause and resume performance as promptly as practicable.
17.1 None of the provisions of the Contract shall be regarded as waived or amended by either party unless the same is agreed in writing and executed by both parties.
18.1 Any notice served under these General Conditions shall be in writing, addressed to the registered office of the intended recipient (or such other address as the recipient may have notified in writing to the other party) and delivered (and deemed served) as follows: either by hand (first business day after delivery), by first class post (third business day after posting) or by facsimile transmission (first business day after date of transmission): "business day" meaning any other than Saturday, Sunday or a public holiday.
19.1 If any provision (or a part of a provision) of the Contract is found by any court or administrative body or competent jurisdiction to be invalid, unenforceable or illegal the other provisions shall remain in force.
20.1 Nothing in these General Conditions shall prevent ASP from providing services of whatsoever kind to any other persons, companies, firms or organisations.
20.2 The Client shall not, without the prior written consent of ASP, at any time from the date of the Contract until the expiry of six months after the last date of supply of the Services solicit or entice away from ASP or employ or attempt to employ any person who is, or has within the previous six months been, engaged as an employee or sub‐contractor of the Supplier in the provision of the Services.
21.1 ASP may appoint any sub‐contractor it considers suitably qualified to perform any of ASP's obligations under the Contract.
21.2 Subject to condition 21.1 neither party shall assign, transfer, charge, sub‐contract or in any other manner make over to any third party all or any of its rights or obligations under the Contract without the prior written consent of the other.
22.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter, shall be governed by, and construed in accordance with the law of England and Wales.
22.2 The parties irrevocably agree that the courts of England and Wales shall have non‐exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract or its subject matter.
23.1 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other and neither party shall have authority to act in the name of or on behalf of or otherwise bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
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