1. Definitions
1.1. In these Terms:
Casual Services means Services provided by Us to You on an ad hoc or as required basis.
Confidential Information means any information or data, whether or not in a material form, which is confidential to either of Us, including confidential information acquired, collected or developed for the purpose of the Services or obtained under these Terms, whether disclosed before or after the date we commence providing Services to You, except that information which is already in the public domain otherwise than as a result of a breach of these Terms.
Fees means the amount set out in the Quote.
Ongoing Services means Services provided by Us to You on an ongoing continual basis in accordance with the service agreement noted on the Quote.
Quote means the BAMS Group Services Pty Limited document issued by Us to You and titled “Estimate for Traffic Control Services” or “Quote for Traffic Control Services”.
Services means the services as described in our Quote.
Terms means these terms and conditions. as amended from time to time.
We and Us and words with a similar connotation mean BAMS Group Services Pty Limited ACN 666 476 375 and includes our employees. You and Your and words with a similar connotation mean You, Your company, Your employ
2. Incorporation
2.1. These Terms govern the provision of all our Services to You. All other terms and conditions, express or implied are excluded to the fullest extent permitted by law including without limitation any of Your terms and conditions.
2.2. These Terms can only be amended in writing and signed by both of Us. These Terms will prevail to the extent of any inconsistency between any Quote and these Terms.
3. Quotations and request for Services
3.1. The Quote is valid for thirty (30) days from the date we issue it to You and is subject to withdrawal or change by Us at any time. Any Quote provided to You is a mere invitation to treat and does not constitute a contractual offer.
3.2. You are deemed to accept and agree to these Terms in full when You do all or any of accepting an Quote; providing further instructions to Us; making a payment to Us; or any other act by You that requires Us to commence the provision of Services. You may accept the Quote by notice in writing, by verbal acceptance or verbal notice, by providing further instructions or by payment of the deposit or any other amount to Us.
3.3. Additional fees apply to any variations that You direct to the original scope of Services that are outside the Quote.
4. Deposit
4.1. A non-refundable deposit may be payable if outlined in the Quote (“Deposit”). You agree to pay Us the deposit as set out in the Quote or within a reasonable time frame and in any event, before we commence any work for You.
4.2. We will not start to provide the Services until we receive the Deposit in cleared funds (if applicable).
5. Standards of Service
5.1. We agree to perform the Services
(a) in a diligent manner and with all necessary skill and care expected in accordance with the provisions of such Services;
(b) expeditiously and in accordance with any time limits specified in the Quote;
(c) in accordance with all representations and warranties as to our experience and ability expressly or impliedly made by these Terms or by law;
(d) in accordance with all applicable acts, ordinances, rules, regulations and by-laws;
(e) in accordance with all Your policies and procedures that are provided to Us, but only to the extent that they are applicable to Us; and
(f) in accordance with the information and instructions You provide to Us.
5.2. Our Services are suitable to the circumstances in which they are provided and are not suitable to be applied by You to any future project. We recommend that You seek further professional advice or services in other instances and for future similar projects as our advice and Services are not designed to be reapplied by You to future projects.
6. Confidentiality
6.1. Neither of Us may disclose any Confidential Information to any person that is not a party to these Terms unless that disclosure:
(a) is necessary for the purposes of performing its obligations under these Terms;
(b) is consented to by the other party’s authorised delegate in writing; or
(c) is required by law to be disclosed.
6.2. We must use the same degree of care towards the Confidential Information that each of Us would use to protect our own confidential information of like nature, but no less than a reasonable degree of care.
6.3. Within 30 days of completion of the Services; termination of these Terms; or receipt of written notice from You, we agree to return or destroy, as directed by You, all forms of the Confidential Information in our custody or control, including all materials containing Confidential Information. We may keep copies of any materials that we produce for You and that may contain Confidential Information.
6.4. You acknowledge and agree that the materials we produce for You constitute Confidential information and You must not, for whatever reason, either for Yourself, for a third party or with the assistance of any third party, provide to any other person or party, appropriate, copy, memorise or in any manner reproduce (or reverse engineer) any of our Confidential Information.
6.5. In the event that we suspect illegality at Your premises, then we will report the same to the relevant authority. You do not have any recourse against Us in relation to the same.
7. Our Fees
7.1. You agree to pay for the following, over and above the Quote, if so requested by Us:
(a) All goods and services tax payable not otherwise included in the Fees or in the Quote. We will issue a tax invoice to You for goods and services tax;
(b) Repeated or varied services due to Your act or omission or a variation request by You. Additional work required will be charged in accordance with our hourly rate as set out in schedule of rates in the Quote.
(c) Interest accruing daily on the unpaid balance of the Fees or any amount payable, calculated daily from its due date until the date of payment at a rate of 7% per annum.
(d) Any additional costs or expenses incurred by Us because You give Us incorrect information.
(e) Any costs or expenses incurred by Us as a result of the work site where Services are to be carried out not being accessible or where there are delays or complications in delivering any equipment or performing of the Services arising from difficultly in accessing the site.
(f) The cost of consumables used in the provision of the Services according to the market rate as apportioned by Us.
(g) The cost of rental of traffic controller equipment You have specifically requested be used in the provision of the Services.
8. Payment
8.1. For provision of Ongoing Services, invoices will be sent to You regularly each week or unless otherwise stated in Payment Terms within the quotation issued for services. An invoice will be sent in accordingly.
8.2. For invoices issued pursuant to clause 8.1 above, You agree to make payment of the balance of the Fees within seven (7) days of the date of the invoice issued to You by Us.
8.3. For provision of Casual Services, an invoice will be sent to You following Your acceptance of these Terms and the Quote. A deposit equal to 50% of the invoice is payable before provision of the Services and the balance of the invoice is payable on completion of the Services.
8.4. The time of payment is an essential term of these Terms. A late fee interest will be applied in circumstances where You do not make payment within 14 days. You indemnify Us on demand against all costs, Fees, expenses and legal costs (on an indemnity basis) incurred by Us in recovering any outstanding unpaid amount from You.
8.5. In the event that You fail to make payment within 14 days, We reserve the right to suspend further Services to You until You have made payment. 8.6. Unless otherwise indicated, monetary references are to Australian dollars.
9. Delay
9.1. If either of Us is delayed or prevented from performing any obligations under these Terms due to any cause or circumstance that is outside of our (respective) control, we agree to delay the performance of the affected obligations until the cause or circumstance is abated or until such time as mutually agreed between Us.
9.2. Where We have incurred costs in preparation for performance of Our obligations, including time, materials and other services, and where these costs cannot be mitigated upon notification of a cancellation of work or an event these costs are to be paid by You in full.
10. Termination
10.1. If You cancel Your request for Services, the following charges apply:
a) Earlier than five (5) business days before the scheduled provision of Services, there is no penalty; and
(b) Within three (3) business days of the scheduled provision of Services, we may charge You a cancellation fee of 50% of the Quote and associated third-party costs.
(c) Within twenty four (24) hours of the scheduled provision of Services, we will charge You a cancellation fee of 50% of the Quote and associated third-party costs.
10.2. In the event that you cancel your request for Services after a third party has been engaged by Us to carry out all or part of your Services, you will be liable for any third-party cancellation fees and charges that may be charged to Us in connection with your cancellation.
10.3. We reserve the right to terminate or suspend our performance of the whole or any outstanding part of the request for Services without liability to You in all or any of the following circumstances where:
(a) You breach these Terms;
(b) You enter into bankruptcy, liquidation or a composition with Your creditors, have a receiver or manager appointed over all or any part of Your assets, enter into administration or become insolvent;
(c) we notify You of having reasonable grounds for suspecting that an event in clause 10.3(b) has occurred or will occur, or You will not pay for Services on the due date;
(d) You have been abusive or threatening to Us;
(e) in our sole discretion, You do not provide Us with a safe working environment.
10.4. Either party can terminate this Agreement for convenience by providing four (4) weeks’ written notice of termination.
10.5. Termination by Us in accordance with these Terms is without prejudice to our other remedies and our right to recover payment from You for any Services provided by Us up to and including the date of termination.
11. Our Warranties
11.1. We represent and warrant to You that:
(a) We will provide the Services in accordance with standards of skill, care, and diligence normally practised by suitably qualified and experienced persons providing services of a similar nature to the Services;
(b) We have the power and capacity to enter and perform the Services and our obligations under these Terms; and
(c) We have sufficient skill, expertise, capacity and resources to perform the Services.
(d) We will notify You of any changes to ownership of BAMS Group Services Pty Limited.
(e) We reserve the right to use independent third parties to undertake the Services.
12. Your agreements and Indemnity
12.1. You agree that by accepting the Quote, You have first reviewed the Quote provided by Us and are satisfied with the scope of the Services outlined in the Quote and that the scope meets Your needs.
12.2. You acknowledge and agree that You have fully disclosed all relevant information to Us so that we may provide the Services to You.
12.3. You agree You will provide Us with a safe work environment.
12.4. You agree that when appropriate all communication will be done through writing.
12.5. You acknowledge and agree to comply with all laws, acts ordinances, rules, regulations and by-laws, including specifically the Fair Work Act.
12.6. You agree that if we reasonably suspect that You have contravened the Fair Work Act or any other legislation, we may have an obligation to take steps including to change the nature of our Services or the scope of our Services at Your expense, to report the contravention or any other steps or action in our sole discretion.
12.7. You indemnify Us against any claims, loss and/or damages that may arise from Your failure to comply with this clause 12.
13. Limitation of Liability
13.1. To the extent permitted by law, we are not liable in any way to You for any form of loss, damage or injury sustained or incurred by You or any third party in consequence of, or resulting directly or indirectly out of the provision of Services, the use of our Services, or any breach by Us of any contract incorporating these Terms or these Terms.
13.2. For the avoidance of doubt, we provide guidance and Services to You but we are not liable to You for any misinterpretation of such guidance and Services or any failure by You to implement the guidance and Services in the manner or way in which we inform You. We are also not liable to You for any future application of the guidance or Services or the way in which You interpret or apply the guidance or Services we supply.
13.3. Should any law render any of these Terms void or ineffective, You agree that our liability is limited, at our sole discretion and option to:
(a) the resupply of Services;
(b) the total Fees paid by You to Us for the Services under the single Quote.
13.4. We are not liable for failure to provide the Services for any reason whatsoever outside our reasonable control including, including but not limited to industrial action, riots or war, governmental action or regulation, act of God. Any such failure does not affect Your obligation to pay for all or any Services previously supplied by Us to You.
13.5. We are not liable for any damage to Your premises or property where You have permitted Us to use Your premises or property.
13.6. If we supply products to You, We are not liable for any damage, loss or injury as a result of Your incorrect use of the products.
13.7. Our liability to You under this clause 13 (if any) will be reduced proportionately to the extent that any unlawful, negligent or other act or omission by You contributed to the relevant liability, loss, damage, or expense.
13.8. You release and indemnify Us against all or any claims, loss and/or damages that You incur or that arise where we are not liable under this clause 13.
14. Advertising Consent
14.1. By accepting the Quote, You grant Us the right to generically refer to the nature of the services carried out by Us for You, without using Your name or any of Your personal information, for any lawful purpose, including advertising and marketing.
15. No employment or agency
15.1. Neither of Us may ourselves represent, and must ensure that our employees and agents do not represent themselves, as being employees or agents of the other party.
15.2. We are not by virtue of these Terms or for any purpose deemed to be Your employee or agent.
16. Non-solicitation
16.1. You agree that by accepting the Quote, you will not:
(a) induce, entice or encourage an employee of the company to breach their terms of employment, terminate their employment with the company, accept an offer of employment made by you or undertake works similar to the Services outlined in the Quote without the company’s knowledge or involvement; or
(b) accept an offer from an employee of the company to undertake works similar to the Services outlined in the Quote without the company’s knowledge or involvement.
16.2. Should you breach clause 16.1, you will be liable to pay to us an administration fee equivalent to $10,000.00 / 10% of the respective employee’s annual salary or equivalent earning and to compensate Us for loss of custom and goodwill.
17. Dispute Resolution
17.1. If a dispute arises out of, or relates to the Services or these Terms, neither of Us may commence any court proceedings relating to the dispute unless we have first complied with this clause 16, except where either of Us seeks urgent interlocutory relief.
17.2. Whichever of Us claims that a dispute (“Dispute”) has arisen in relation to the Services or under these Terms, that claiming party must give written notice to the other party specifying the nature of the Dispute.
17.3. On receipt of that notice, we must endeavour to resolve the Dispute expeditiously using informal dispute resolution techniques such as discussion, series of discussions, mediation or determination or similar techniques agreed by Us.
17.4. If we do not agree within 5 business days of receipt of the notice referred to above (or such further period as agreed in writing by Us) as to:
(a) The dispute resolution technique and procedures to be adopted;
(b) The timetable for all steps in the technique; and
(c) The selection and compensation of the independent person required for such technique, then we must mediate the Dispute in accordance with the Mediation Rules of New South Wales, and the nominee of the President of the Law Society of New South Wales will select the mediator and determine the mediator’s compensation.
18. General
18.1. Governing Law: These Terms are governed by the laws of the State of New South Wales and we both submit to the jurisdiction of the courts of that state.
18.2. Severability: If any provision of these Terms is held to be invalid in any way or unenforceable, the remaining provisions shall not in any way be affected or impaired, and these Terms must be construed so as to give effect to our original intent.
18.3. Waiver: Waiver of any provision of or right under these Terms:
(a) Must be in writing signed by whichever of Us is entitled to the benefit of that provision or right; and
(b) Is effective only to the extent set out in any written waiver.
18.4. Entire Agreement: These Terms, the Quote and any attachments constitute the entire agreement between Us with respect to its subject matter and supersede all prior agreements and understandings between Us in connection with these Terms and/or in connection with the Services.
18.5. Notices: Notices under these Terms must be in writing, in English and delivered to the address for the relevant party as set out in the Quote or as otherwise advised to that party by the other party. A notice is taken to be received if hand delivered, on delivery; if sent by prepaid post, on the second business day after the date of posting; if sent by email at the time that would be the time of receipt under the Electronic Transactions Act 1999.
18.6. Survival: The following terms survive expiry or termination of these Terms; clause 6 (confidentiality); clause 13 (limitation of liability); clause 17 (dispute resolution); clause 18.1 (governing law); and this clause 18.6 (survival).