These standard terms and conditions for the provision of services and the document issued by cesar Pty Ltd ACN 123 867 587 (cesar) that the client (you) signed that refers to these terms and conditions (such as an estimate or quote) (Document) together form the entire agreement between cesar and you. If there is any conflict between the details specified in the Document signed by you and these terms and conditions, the details in the Document prevail.
1.1 cesar will provide the services specified in the Document (the services).
1.2 cesar may allocate any staff or consultant of cesar to perform the services and may replace any personnel named by cesar with personnel of similar skill.
1.3 Any timetabled dates are intended for planning and estimating purposes only and are not contractually binding.
2.1 You are responsible for determining that the scope of services in the Document is sufficient to meet your needs.
2.2 You agree that you will:
2.2.1 provide all information and assistance that cesar requires to enable cesar to provide the services;
2.2.2 provide information that is true, correct and not misleading;
2.2.3 use the results of the services only for the purpose for which the services are provided;
2.2.4 advise all cesar personnel who visit your premises of what is required of them in relation to health and safety, such as use of safety equipment and emergency evacuation procedures.
2.3 cesar will rely on any information you provide and will not verify that information.
3.1 You may rely on any final written report issued by cesar or other final product of the services only. Any oral comments or drafts of written reports or any other communications made prior to the final written report do not represent the final conclusions of cesar and should not be relied upon.
4.1 You must not disclose any report or other information provided as part of the services or obtained by you from cesar in connection with the services to any other person without cesar’s prior written consent.
4.2 The services are provided for your use only and cesar accepts no responsibility or liability to any other person or company.
4.3 All papers and documents cesar produces in the course of providing the services are the property of cesar and cesar has no obligation to disclose those papers and documents to you or to any other person.
5.2 You must ensure all passwords used by you or your personnel to access the secure client website are kept secure and are not provided to any third party.
6.1 You agree that the services will be charged on a time and materials basis at cesar’s standard consultancy rates at the time of providing the service, unless a fixed fee or other rate is agreed by the parties in writing before provision of the services.
6.2 You agree to reimburse cesar for any reasonable expenses cesar incurs directly from provision of the services that you are advised of in advance by cesar.
6.3 All invoices issued by cesar must be paid within 30 days of the date of invoice. If payment is not received, cesar reserves the right to suspend provision of the services and/or charge interest on the outstanding amount on a daily basis at a rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).
6.4 In the event that this agreement is terminated before the services have been completed, you agree to pay cesar for all services provided up to the date of termination. In the event you terminate the agreement before cesar has completed the services, you will also pay cesar any additional costs that cesar reasonably incurs in connection with the early termination.
6.5 Any quotes or fee estimates cesar provides are not contractually binding.
7.1 You may cancel the services at any time for any reason by providing cesar 14 days written notice.
7.2 cesar may terminate this agreement at any time for any reason by providing you written notice.
8.1 cesar’s liability for any loss or damage that you suffer that is caused by cesar’s breach of contract, tort (including negligence), breach of fiduciary duty or other actionable wrong of any kind shall be limited as follows:
8.1.1 cesar has no liability for any consequential or indirect loss or damage or loss of profit;
8.1.2 cesar’s liability will be reduced to the extent of any contributory negligence on your part;
8.1.3 in the event that more than one person caused or contributed towards your loss or damage, cesar’s liability to you will be limited to the proportion that is reasonably apportioned to cesar by law, based on an assessment of cesar’s degree of responsibility and the responsibility of others who contributed towards the loss or damage (whether or not those persons are able to meet any liability they may have);
8.1.4 cesar’s liability for all loss or damage in connection with this agreement will in no circumstance exceed the amount of cesar’s profit from the total fees paid for the services specified in the Document in the 12 months immediately preceding the claimed event, or such other amount specified as the liability cap in the Document.
9.1 No legal proceedings may be commenced later than 12 months after the date on which the party bringing the claim became aware, or ought reasonably to have become aware, of the facts giving rise to the claim.
9.2 In any event, no legal proceedings may be commenced more than two (2) years after the date on which the facts giving rise to the claim occurred.
10.1 You indemnify, and agree to keep indemnified, cesar, its staff and consultants against any liabilities, losses, expenses and other costs incurred in connection with your breach of contract, tort (including negligence), breach of fiduciary duty or other actionable wrong of any kind. This indemnity includes any claims made against cesar, its staff and consultants by any third party.
11.1 Both parties agree that information or documents that are marked confidential (or are clearly treated by the other party as confidential) that are received by or provided to the other in connection with the provision of the services or this agreement will be treated as confidential except if the information:
11.1.1 is or becomes generally available to the public other than by a breach of the obligations under the agreement;
11.1.2 is known to the parties prior to entering the agreement; or
11.1.3 is received from a third party who owes no obligation of confidence in respect of the information.
11.2 You agree that cesar may disclose your confidential information for the purpose of providing the services such as to cesar’s personnel (including staff, consultants and contractors), and to cesar’s insurers or legal advisers, or as otherwise required by law.
11.3 The terms of this agreement specified in the Document or other written document are confidential.
12.1 Intellectual property rights (whether or not such rights are capable of registration) in all documentation, systems, materials, methodologies, trademarks, designs, patents, processes and know-how brought to and utilised by cesar in relation to the services or created in the course of providing the services, and in all working papers and reports, remain vested in cesar.
12.2 You retain ownership of any intellectual property rights owned by or licensed to you before the services are commenced. You permit cesar to use any such intellectual property that you make available to cesar, or which becomes known to cesar, for the purposes of providing the services and as otherwise permitted by this agreement.
12.3 You are permitted to use any final written report, other final product of the services or any draft report provided to you by cesar for your own internal business purposes only.
12.4 Any material or know-how developed in the course of this agreement may be used in any way cesar deems appropriate, including by or for other clients of cesar, without any obligation to you except for the requirement to keep confidential information confidential.
12.5 For the purpose of this agreement, “know-how” means all information not in the public domain including drawings, designs, photographs, videos, computer programs, data, formulae, specifications, procedures for experiments and tests, results of experiments and tests, techniques and information.
13.1 Any term by its nature intended to survive termination of this agreement survives termination of this agreement.
13.2 Termination of this agreement for whatever reason will be without prejudice to any accrued rights or remedies of either party.
14.1 Should any dispute arise, the parties will attempt to resolve it in good faith by senior level negotiations (this may include mediation using the services of an agreed mediator).
14.2 This contract is governed by the law in the State of Victoria, Australia.
15.1 Neither party will be liable to the other for any failure to fulfill obligations caused by circumstances outside its reasonable control.
16.1 Nothing in this agreement prevents cesar from providing services to other clients provided that cesar takes reasonable steps to ensure that each client’s confidential information is not disclosed to other clients.
17.1 Neither party may assign, transfer, charge or otherwise deal with its rights or obligations under this agreement without the prior written consent of the other party.
18.1 This agreement may only be varied in writing and signed by both parties.
19.1 To the extent permitted by law, all warranties, conditions, representations and liabilities or terms other than those expressly stated are excluded from this agreement.
19.2 If any term of this agreement is held to be invalid the enforceability of the remainder of the agreement will not be affected.