Standard Conditions Of Contract For Consultancy, Research & Development, And Test/Trials
Work Instructions Given To VIPAC ENGINEERS & SCIENTISTS Ltd

These Standard Conditions of Contract are applicable to work instructions given to Vipac Engineers & Scientists Ltd. [ACN 005 453 627] (VIPAC).  They apply to the relationship between the person/organisation giving the work instructions (the Client) and VIPAC, following VIPAC’s acceptance of the commission.

GENERAL CONDITION

The VIPAC organisation adopts in general the Terms of Engage­ment currently promulgated by the Association of Consulting Engineers Australia and conforms to the Code of Professional Practise as approved by the Institution of Engineers, Australia.

Notwithstanding the above mentioned terms, and codes, VIPAC brings the following specific conditions to the notice of the Client.

SPECIFIC CONDITIONS

Scope of Work Instruction (WI) and Quotation

1.     The Work Instruction (“WI”) scope, and its price and timing, are as described in the proposal/quotation.  These are based on the information available to VIPAC at the time, and on these Conditions.

2.     These Standard Conditions of Contract shall apply to the works and to any variations. They may be varied only by VIPAC in writing.

3.     Unless stated otherwise, VIPAC’s quotation remains valid for a period of 30 days.

4.     Work will commence only after receipt of the Client’s written order. Acceptance of Vipac’s Standard Conditions of Contract will be implicit in placement of the order.

5.     VIPAC shall undertake no obligation other than to use its best endeavours to achieve for the Client usable results within the scope and timing as proposed.

6.     Variations to the WI or deviations from these Standard Conditions must be agreed in writing between the parties.

7.     Where services are to be provided against a Regular Schedule, the monthly fee is agreed to apply for the actual duration up to the nominated completion milestone.

Secrecy

8.        Unless it is agreed otherwise at the time the WIs are given, VIPAC will keep secret for one year any new data directly relating to the commissioned work.  This commitment to secrecy does not apply to calculation methods, programming and experimental methods and techniques which VIPAC brings to the project.

9.        Designated confidential data belonging of the Client to which VIPAC has access when carrying out the WIs is subject to a term of secrecy of one year.  If required, this term may be extended by a separate written agreement.

10.      VIPAC’s undertaking as to secrecy shall not apply where it would be contrary to VIPAC’s legal functions, obligations and its own defence.

11.       Proposals for works or variations or extension of WI’s, are made on the condition that the exclusive knowledge of VIPAC is only used by the Client for forming an opinion on VIPAC’s proposals and is not passed to third parties without the express written permission of VIPAC.

12.      At no time, unless agreed in writing, will VIPAC be required to refrain from accepting WI’s from third parties and performing works pursuant thereto even if those are  within the scope of or are similar to the Client’s instructions.  Should either VIPAC or the Client consider there to be significant potential for a direct conflict of interest, they must inform the other party at the earliest opportunity.

Rights Concerning Results

13.    The Client is entitled to use all data specifically connected with the WI’s and being within the scope of the instructions, as referred to in para 1.

14.    For the term of secrecy pursuant to para 8, VIPAC shall be entitled to use, for its own purposes, the new specific data which has been obtained.

15.    VIPAC shall have exclusive rights and interest to and therefore be entitled to use for its own purposes, and for the purposes of third parties and to allow third parties to use:

a) all knowledge and experience available to VIPAC at the acceptance of the instructions;

b) the new specific knowledge and data which have been obtained by carrying out the WIs but which are outside the scope of the WIs;

c) calculation, programming and experimental methods of working, arising from carrying out of the instructions.

16.      a) The Client shall be entitled to copies of  reports, findings,raw data, drawings and other materials  which are the results of the WI (“Results) , subject to VIPAC’s retention of copyright therein.  The Client shall be entitled to use and reproduce the Results

b) The Results will only be provided to the Client upon full payment of all sums as noted at para 18 through para 25 below.

17.     Delivered reports shall only be reproduced verbatim and in full by the Client, excepting with the prior written consent of VIPAC.  Reproduction shall also include submitting to the inspection of third parties.  This restriction shall also be passed to any 3rd party recipients. Without limiting any other right or obligation hereunder, the Client assumes full responsibility and liability and indemnifies VIPAC in respect of any loss or damage arising from any editorialising, commentating, analysis or speculation in relation to those Results (being matters extraneous or additional to the Results themselves) including any broadcast or communication to the publication of such editorialising, commentating, analysis or speculation by the Client or by any third party with the Client’s authorisation express or implied.

Price & Payment

18.  By placing the order or authorising commencement of the work, the Client is deemed to be the sole Principal and as such is solely responsible for payment, regardless of any separate contract that may exist between the Client and other parties.

19.  Should no “fixed price” or “limiting fee” or “lump sum” be specifically mentioned in the quotation, then the total sum to be invoiced shall be determined afterwards by way of calculation, based on the WI and VIPAC’s current normal rates and methods. All prices, including fixed prices, shall be subject to variation if material changes occur in tax or other government charges or in relevant currency exchange rates.  Price is nett of any withholding taxes of other government charges levied outside Australia.

20.  VIPAC may request advance payments, if and as detailed in the quotation.  Advance payments of between 10 and 50 percent are normal.

21.  VIPAC will issue invoices monthly against works in progress, partial deliveries of contract items, or Regular Schedule. Invoices are due and payable immediately upon rendering to the Client.

22.  The Client shall pay rendered accounts in full, within seven (7) days from the invoice date.  Also, the Client shall be liable to pay statutory interest (viz. Reserve Bank Rate plus 2 percent) in addition to the costs of recovery, should the 7 days payment period be exceeded.

23.  If the Client foresees that the 7 day terms cannot be met, an alternative period shall be proposed to VIPAC in writing.  Should VIPAC accept a different period there may be a commensurate variation in the quoted cost.

24.  VIPAC reserves the right to cease work – with no consequential liability – for any Client being delinquent in respect of the 7 days term of payment.

25.  In the event of a change to the work scope or timing as a result of the Client’s (or his agent’s) information, instructions or lack thereof, or due to material changes caused by others in the Client’s employ, or due to forces outside VIPAC’s control, then VIPAC’s final price and delivery will also change correspondingly. Ongoing Regular Schedule work shall continue and shall be paid for unless notice of suspension is given to VIPAC in writing. Recommencement of suspended works shall be at VIPAC’s discretion.

Liability

26.  Subject to the provisions in paragraphs 17 and 27, VIPAC shall be liable for damage suffered by the Client if and to the extent that VIPAC is negligent or reckless in performing the WI  or otherwise breaches an express term of this document, but only up to the amount paid or  payable by the Client for those work instructions pursuant to para 19.

27.  Except as set out herein VIPAC shall not be liable for loss or damage which the Client (or by any third party utilising the Results with the Client’s authorisation express or implied) suffers or claims to suffer when, or as a result of, applying,  using, communicating or broadcasting the Results of or any information regarding VIPAC’s works.

28.  The Client shall indemnify VIPAC, its officers, representatives and employees from and against any claims made by third parties against the Client or VIPAC arising from damage claimed to be suffered by those third parties (including without limitation any third party utilising the Results with the Client’s authorisation express or implied)  or any other person to whom the Client has made the Results available.

29.  The Client shall be liable for damages suffered by VIPAC;s employees during the time spent on the premises of the Client or third parties in connection with the WI’s.

30.  To the extent permissible at law VIPAC shall not be liable for any risk of damage suffered by the Client or its staff during the time spent on VIPAC’s premises.

31.  To the extent permissible at law all warranties not expressly set out in this document in relation to the services, works or Results provided by or to be provided by VIPAC are hereby excluded.

Miscellaneous

32.  If the client should not fulfil any essential obligations arising from the agreement, VIPAC shall notify the Client hereof in writing and allow him a reasonable further period, normally 7 days, to fulfil his obligations.  In the event that the Client should still not fulfil his obligations within the further period allowed, then VIPAC shall be entitled by notice in writing to terminate the Contract forthwith but without prejudice to any right of action or remedy which shall have occurred or which shall accrue thereafter in favour of either party.

Disputes

32.  All disputes arising from the present agreement, or from any further agreements resulting therefrom, shall be determined by a competent Court within the State of Victoria of the Commonwealth of Australia. Revised 29 Sep 2015