Terms of Engagement

Terms of Engagement

About these Terms

1. These Terms apply to a person (Client) engaging Oberwell Nominees Pty Ltd ABN 89 008 910 138 (BE Surveys) to provide services (Services).
2. These terms must be read in conjunction with any letter (Letter) and Confirmation of Appointment document (COA) from BE Surveys to the Client that references these Terms.
3. These Terms, together with any Letter and COA constitute the contract, and govern the relationship, between BE Surveys and the Client for the Services (the Contract).
4. These Terms also apply to any subsequent Services the Client may require of BE Surveys, unless otherwise agreed in writing.

Parties

5. The Client is either:
(a) the person, persons or entity to whom the Letter and/or COA is addressed; or
(b) the person, persons or entity who sign the COA (if different to the person or entity to whom the COA is addressed); or
(c) the person, persons or entity named as the client in BE Surveys’s records.

6. If the Client:
(a) is the trustee of a trust, the trustee enters into the Contract in its personal capacity as well as trustee of any trust;
(b) is a partnership, each partner is a Client for the purposes of this Contract whether or not each partner is individually named and is a signatory to the COA; or
(c) comprises two or more persons or entities (or any combination), they are jointly and severally liable under the Contract.

7. If during the course of a matter the Client nominates a third party to be the addressee of an invoice, the Client named remains liable.

8. BE Surveys may assume that a Client purporting to bind a third party has authority to do so.

Scope of Work

9. The Letter and/or the COA should indicate the scope of Services required. If during a matter the scope of work changes,  these Terms apply to the new scope.

10. If the original scope of work is to be varied, BE Surveys may in its absolute discretion decline to act for the new scope of work or may review any estimate of fees and expenses previously given.

Input from Client

11. The Client agrees to provide BE Surveys in a timely basis with instructions/documents/access to the Client’s personnel as reasonably required to perform the Services.

Confidentiality and Privacy

12. BE Surveys will keep confidential and not disclose or use confidential information of the Client obtained in performing the Services except as needed to perform the Services or as required by law.

13. BE Surveys will not use or disclose personal information collected by it about the Client except for the purposes of providing the Services or as required by law unless otherwise consented to by the Client.

14. The Client irrevocably consents to BE Surveys using images and general descriptions relating to the Client and the Services provided to the Client pursuant to the Contract for the purposes of case studies, advertising, editorial, educational or similar purposes on its website or in other publications (of any nature and in any medium) subject to BE Surveys complying with its obligations under items 12 and 13 of these Terms.

Fee estimates

15. The estimate of fees in the Letter and/or COA is given in good faith based on BE Surveys’s knowledge at the time of instruction. Accordingly, the estimate is subject to change. However, if BE Surveys becomes aware of any circumstances that may substantially affect the estimate, BE Surveys will endeavour to promptly contact the Client. An estimate is not binding nor is it a fixed quote or capped fee unless otherwise agreed in writing.

Deposits and lodging fees

16. BE Surveys may require the Client to pay an amount in advance of BE Surveys commencing work. The amount will depend on a number of factors but will be based on a realistic assessment of anticipated costs. If applicable, BE Surveys will not commence work until the deposit has been paid in full.

17. In addition, BE Surveys may require a pre-lodging payment to be made by the Client from time to time. If applicable, BE Surveys will not lodge plans or applications until that payment and all of BE Surveys’s fees and disbursements at the relevant date have been paid in full.

Fees

18. Unless agreed in writing otherwise, BE Surveys charge for Services by reference to time spent.

19. At this time, the hourly rates are as stated in the quote supplied. The rates are usually reviewed each 1 July.

20. If the Client requires work to be performed with special urgency, BE Surveys may recover a reasonable surcharge.

Expenses

21. BE Surveys may recover from the Client usual and proper expenses incurred in providing the Services.

GST

22. If BE Surveys incurs a GST liability in providing a Service, the consideration payable by the Client to BE Surveys under the Contract is increased by an amount equal to that GST. That additional amount is payable when the Client is required to pay BE Surveys for the Service.

Invoices

23. BE Surveys will issue interim accounts regularly at appropriate stages, usually monthly, unless specifically agreed with the Client even if the Services for a matter are not complete.

24. BE Surveys accounts operate as a tax invoice for the amount of GST (if applicable).

Payment
25. The Client is liable to pay BE Surveys’s invoice within fourteen (14) days of the date of the invoice.

26. If the Client does not pay the invoice within time, BE Surveys may:
(a) not carry out any further work for the Client until the account is paid in full;
(b) retain custody of all materials in BE Surveys’s possession until all of BE Surveys’s accounts are paid in full; and
(c) recover from the Client interest on the unpaid amount at fifteen percent (15%) per annum accruing from the date of the invoice to the date of payment.

27. The Client is liable to pay all costs and expenses BE Surveys incurs in recovering or attempting recovery of monies the Client owes BE Surveys. Such costs may include legal costs on a full indemnity basis.

Lien and other Security

28. BE Surveys has a general lien over any documents/monies/property at any time held for the Client as security for
payment of invoices BE Surveys has issued or will issue. That lien continues even if BE Surveys no longer acts
for the Client.

29. The:
(a) Client; and
(b) where the Client is a corporation, each of the Client’s officers, charges its interest as proprietor in any real property located in Western Australia with the due payment to BE Surveys of all monies that will or may become payable under the Contract and irrevocably authorises and consents to BE Surveys lodging an absolute caveat against the title to any real property owned by the Client or the Client’s officers (where applicable) to protect BE Surveys’s interests in the Contract.

Irrevocable Personal Guarantee

30. In consideration of BE Surveys agreeing to provide the Services, the Client (where the Client is an individual) or the Client’s officers (where the Client is a corporation) unconditionally and irrevocably guarantee the due and punctual observance and performance by the Client of all its liabilities, obligations and agreements (whether monetary or nonmonetary, present or future, actual or contingent) to BE Surveys arising under or in connection the Contract.

Email

31. The Client acknowledges that email is inherently insecure, may contain computer viruses, may be delayed or prevented in transmission or receipt from causes outside control and might be intercepted by third parties. The Client acknowledges that it is not possible to guarantee the security and absolute confidentiality of such transmissions and accepts the risk of disclosure of such communications due to the nature of the medium. In addition, the Client accepts the risk of late, incomplete or inaccurate transmissions and transmissions which may be corrupted or which may contain worms or viruses.

Termination

32. At any time, either party may terminate the Client’s engagement of BE Surveys. BE Surveys will not terminate except for good reason and on reasonable grounds.

33. BE Surveys remains entitled to recover its fees and expenses for work performed up to termination.

34. On termination and subject to payment of all of BE Surveys’s fees and expenses accrued, the Client is entitled to recover anything in BE Surveys’ file that is the Client’s property.

Entire agreement

35. The Contract constitutes the entire understanding between BE Surveys and the Client and supersedes all prior understandings, written or oral, relating to its subject matter.

Acceptance of terms

36. If the Client begins or continues to instruct BE Surveys and does not advise BE Surveys to the contrary within fourteen (14) days, BE Surveys will consider that the Client has accepted these Terms and agrees to be bound by them.