AGREEMENT FOR THE PROVISION OF CONSULTANCY SERVICES BETWEEN ABN 72 896 582 485 trading as DC Partnership and Client:
1. The contract between the Client and DC comprises these terms of agreement, the accompanying letter and any other documents stated in writing as being incorporated into the contract. Subject to the terms of the contract, DC must provide to the Client the consulting engineering services described in the accompanying letter together with such other services as may be agreed in writing from time to time (the “Services”).
2. DC shall provide the Services with such skill, care and diligence as is generally exercised by competent members of the engineering profession performing services of this nature, at the time the Services are provided.
3. Unless stated in the accompanying letter, DC will perform the Services at its offices, the site of the project (‘Site’) or at any other place nominated in writing by the Client. Where the locations of DC’s work are not under DC’s control (including the Site), the Client must provide reasonable access to allow DC to fulfil its obligations (including to provide the Services), pay DC’s expenses associated with working at the location(s), provide and pay for any site and safety inductions required in order to allow DC’s personnel to work at the location(s) and provide and pay for any accommodation in the event that DC’s personnel are required to remain at the location(s) for longer than 1 working day.
4. Before DC provides the Services, the Client must:
(a) Sign and return a copy of the contract (DC Fee Proposal) to DC. If the Client does not return a copy of the contract to DC but continues to provide information or instructions to DC, the Client will be deemed to have accepted the terms of the contract.
(b) At its own cost, deliver to DC all information, documents and other particulars relating to the Client’s requirement for the project as is necessary for DC to carry out the services as expressly set out in this Agreement (the “Requirements”). The Client’s information, documents and other particulars it provides to DC in connection with this Agreement must be accurate. DC is entitled to rely upon the Client’s information, documents and other particulars as being accurate. DC will not be liable for any inaccurate information, documents or particulars provided by the Client.
(c) Provide DC with instructions so that DC can provide the Services.
5. The Client must pay to DC:
(a) The Fee and the Reimbursable Expenses as set out in the accompanying letter together with such other amounts in respect of other services agreed to be provided;
(b) Reasonable adjustments to the Fee and the Reimbursable Expenses to reflect the additional costs, expenses, liabilities, losses or other amounts incurred or suffered by DC in the performance of the Services and arising out of or in connection with any event or matter beyond DC’s control;
(c) In the event that payment of the fees and expenses in 5(a) and 5(b) is not received by the due date, then;
I. An administration fee of $250.00
II. Interest on the unpaid amount at a rate of 15% per annum
III. All debt recovery costs incurred by DC including all legal fees and debt collection fees and commissions; and
(d) To the extent that amounts payable under this Agreement are not expressed to be GST inclusive, an additional amount for the GST incurred by DC in relation to the supply of the Services (“GST”).
The Client and DC acknowledge that payment is a fundamental term of the contract.
6. DC may claim payment of the amounts in clause 5 above at the times set out in the accompanying letter or, if no time is set out 14 days. If the Client disputes the amount payable to DC in respect of a claim for payment, then it must within 15 days of receipt of the claim for payment issue to DC a Notice of Dispute pursuant to clause 11 of this Agreement. Whether or not the claim for payment has been disputed, the Client must pay to DC, without set-off or deduction, the amount claimed in DC’s claim for payment within 14 days of the date of the claim.
7. All amounts payable to DC under clause 5 must be made prior to the final/signed reports(s) being issued to the client. This is a fundamental term of the contract and obligation on the Client, and DC will not be in breach of the contract if it has not issued the final/signed reports(s) due to non-payment by the Client of all amounts payable under clause 5.
8. To the maximum extent permitted by law:
(a) Subject to paragraphs (b), (c), (d), (e) and (f) below, DC’s liability to the Client arising out of or in connection with this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, shall be limited in aggregate to the lesser of $10,000,000 or ten times the fee charged under this Agreement;
(b) The liability of DC to the Client arising out of the performance or non-performance of the Services whether under the law of contract, tort or otherwise shall be limited to the cost of rectifying the works which are the subject of the commission;
(c) The liability of DC to the Client arising out of an error or omission by DC shall be limited to the portion of the costs of rectifying the works that would not have been incurred if the error or omission had not occurred;
(d) DC is not liable to the Client in respect of any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other agreement);
(e) DC shall be deemed to have been discharged from all liability in respect of the Services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of the period specified in the accompanying letter, or if no date is specified, at the expiration of one (1) year from the issue of the Final Certificate to the Contractor by DC or where there is no Final Certificate at the expiration of one (1) year from the date of the final invoice issued by DC under the Contract, and the Client (and persons claiming through or under the Client) shall not be entitled to commence any action or claim whatsoever against DC (Director, officer, consultant or any employee of DC) in respect of the Services after that date;
(f) If, and to the extent that, any of this clause is determined to be void as a result of any provision of the Competition and Consumer Act 2010 (Cth) or any other written law, then DC’s liability for a breach of a condition or warranty is limited to:
I. the supply of the relevant Services again; or
II. the payment of the cost of having the Services supplied again.
9. Subject to the Client paying DC all amounts due and owing under the contract, DC grants to the Client a non-exclusive, royalty-free and irrevocable licence to use (and allow others to use) any intellectual property (including all drawings, reports, specifications, bills of quantity, calculations and other documents, including “works” as defined in the Copyright Act 1968 (Cth) created or produced by DC) arising out of provision of the Services (“IP Rights”) for the purposes of completing the Project. As between the Client and DC, the ownership of the IP Rights vests in DC.
10. Neither the Client nor DC shall disclose to third parties or use for any purpose (other than providing or benefiting from the Services) any information provided by the other unless:
(a) required by law;
(b) the information is already generally known to the public; or
(c) the other consents to the disclosure.
11. Any dispute or difference (“Dispute”) between the Client and DC, including a dispute as to payment arising under clause 6 of this Agreement, may be notified by a party to the other party by a Notice of Dispute. The parties shall:
(a) within 28 days of the date of the notice, meet to negotiate, in good faith, a resolution of the Dispute. Each party is to be represented at the meeting by a person who has authority to negotiate and resolve the Dispute; and
(b) if the parties fail to achieve a resolution of the Dispute within 14 days from the date of the meeting in 11a) above, the parties must arrange for and attend a mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia. Each party is to be represented at the mediation by a person who has authority to negotiate and resolve the Dispute.
Where a Notice of Dispute is issued by the Client pursuant to clause 6 of this Agreement, the Notice of Dispute must be accompanied by a detailed statement setting out the amount the Client considers to be payable in respect of a payment claim, the calculations used to arrive at that amount and the reasons for the differences between the amount claimed in DC’s payment claim and the amount the Client considers to be payable.
Clause 11 above shall not prevent DC from instituting legal action at any time to recover moneys owing by the Client to DC.
12. DC may, without prejudice to any other rights or remedies it may have, by notice in writing served on the Client suspend its obligations under this Agreement:
(a) immediately by written notice if the Client has failed to fulfil its obligations in accordance with clauses 3, 4(b), 4(c) or 5 of this Agreement; or
(b) if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 10 working days (or longer as DC may allow) of a written notice served by DC on the Client specifying the breach and requiring the breach to be remedied.
13. DC may, without prejudice to any other rights or remedies it may have, terminate its obligations under this Agreement by notice in writing served on the Client:
(a) if the breach referred to in Clause 13(a) has not been remedied within 5 days of a written notice served by DC on the Client specifying the breach and requiring the breach to be remedied; or
(b) if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 28 days of a written notice
(c) upon DC giving the Client 28 days’ written notice of its intention to do so; or
(d) if the Client is the subject of an Insolvency Event.
Despite any other provision of this contract no termination of this contract affects the obligations of the Client under clauses 5 and 6. Those clauses survive termination and remain in force and effect in accordance with their respective terms.
14. If DC considers it appropriate to do so, it may, with the Client’s prior written approval, which shall not be unreasonably withheld or delayed, engage other consultants to assist DC in specialist areas. All consultants engaged under this clause will be engaged by DC acting as the Client’s agent and the Client will remain responsible for the consultant’s costs and expenses as well as the performance of the consultant.
15. Neither party may novate, assign, transfer or sublet any obligations under this Agreement without the written consent of the other. Unless stated in writing to the contrary, no novation, assignment, transfer or subletting shall release the assignor from any obligation under this Agreement.
16. In the interpretation of this Agreement:
(a) No rule of construction applies to the disadvantage of one party on the basis that it put forward this Agreement or any part of it.
(b) If a clause or part of a clause of the contract can be read in a way that makes it illegal, unenforceable or invalid, but can also be read in a way that makes it legal, enforceable and valid, it must be read in the latter way. If any clause or part of a clause is illegal, unenforceable or invalid, that clause or part is to be treated as removed from the contract, but the rest of the contract is unaffected.
17. All communications under the contract must be properly served. In the event that the Client requires DC to use any electronic document management system to transmit communications and/or documents, the Client agrees that DC may download a copy of all document control registers, all communications and documents it has uploaded or previously accessed onto the electronic document management system for its records at no cost to DC.
18. A communication will be deemed to have been properly served to the other party if it is:
(a) Delivered (by post or other means) to the address nominated in this contract;
(b) Sent by email transmission to the email address of the responsible DC contact involved.
19. A communication will be deemed to have been properly served to the other party if it is:
(a) At the time of delivery, if delivered personally;
(b) Upon the expiry of 2 working days after posting, if posted;
(c) On the day of completion of the transmission, if sent by email;
20. The laws of New South Wales apply to this contract and the parties submit to the exclusive jurisdiction of the Courts of New South Wales for the resolution of any disputes in connection with this contract.
21. The fact that a party fails to do, or delays in doing, something the party is entitled to do under this contract, does not amount to a waiver unless the waiver is in writing signed by the party granting it.
22. No variation of this contract will be of any force or effect unless it is in writing and signed by each party to this contract.
Ellie is the powerhouse behind DC Partnership’s financial, operational and people performance. With over a decade of experience in consultancies, startups and corporate environments, she’s a master at combining big-picture strategy with hands-on problem-solving. Since joining DC Partnership in 2021, Ellie has streamlined operations, expanded the company’s footprint and kept everything running smoother than ever. A champion of diversity, inclusion and female leadership, Ellie is all about creating a workplace where everyone feels valued—and where no challenge is too big to tackle.
