Terms & Conditions of Business

  1. Introduction
    1. CHASM Consulting has set out in this document its basic terms and conditions of business (the “Terms”), which, together with its Engagement Letter (together called the “Agreement”), will apply to all work CHASM Consulting Pty Ltd undertakes for you with respect to this engagement. If there is any conflict between these Terms and the Engagement Letter, then the Engagement Letter shall prevail.
    2. For this document “CHASM” will mean CHASM Consulting Pty Ltd (ABN 52 129 440 866).
  2. The Services
    1. CHASM will provide the services set out in the Engagement Letter (the “Services”) and will use all reasonable commercial efforts to provide the Services in a timely and efficient manner.
    2. In providing the Services CHASM will take reasonable care in accordance with standards ordinarily exercised by members of the profession generally who provide services similar to the Services in the same locality and under similar conditions. There shall be no liability whatsoever in respect of any failure to exercise a degree or level of care beyond such reasonable care.
    3. During provision of the Services, CHASM may supply oral, draft or interim advice, reports or presentations but in such circumstances CHASM’s written advice or final written report shall take precedence.
    4. No reliance should be placed by you on any oral, draft or interim advice, reports or presentations. Where you wish to rely on oral advice or an oral presentation, you shall inform CHASM and CHASM will provide documentary confirmation of the advice.
    5. CHASM warrants that services provided will be in accordance with any additional or varied conditions and terms stated within the Engagement Letter.
  3. Your Obligations
    1. You agree to pay for the Services in accordance with this Agreement.
    2. You will provide CHASM promptly with such information as may reasonably be required for the proper performance of the Services, including access to appropriate members of your staff, records, information, technology, systems and premises.
    3. CHASM shall be entitled to rely upon the accuracy of all information provided by you, or by others on your behalf, without independently verifying it.
    4. You undertake that, if anything occurs after information is provided by you to CHASM, to render such information untrue, unfair or misleading, you will promptly notify CHASM and, if required by CHASM, take all necessary steps to correct any announcement, communication or document issued which contains, refers to or is based upon such information.
    5. Where the Services include operational advice, you accept responsibility for operational problems that may develop if CHASM is not consulted after the information relied upon by CHASM has changed.
    6. You acknowledge that information made available by you, or by others on your behalf, to CHASM staff not engaged in the provision of the Services, or which is otherwise known by them, shall not be deemed to have been made available to the individuals within CHASM who are engaged in the provision of the Services.
    7. You shall retain responsibility for the use of, or reliance on, advice or recommendations supplied by CHASM in the delivery of the Services.
    8. You accept responsibility for any problems that may develop if any recommendations made by CHASM in connection with the Services are not carried out, or are partially carried out without further advice being obtained from CHASM.
    9. Where provision of the Services is subject to a code of practice, you agree to undertake the obligations of the commissioning entity as set out in the relevant code.
  4. Confidentiality
    1. Both parties acknowledge that they may, in the course of the engagement, be exposed to or acquire information that is proprietary or confidential to the other party. Both parties agree to hold such information in strict confidence, and not to divulge such information except as may be required by law or judicial process, or by any persons or bodies responsible for regulating that party’s business.
    2. Subject to clause 4.1, but otherwise notwithstanding any other provision of this Agreement or any other document pertaining in any way to the Services, CHASM is entitled to retain a copy of all material information upon which any report or recommendation provided in the course of the Services is based.
    3. If any document is transmitted by CHASM to you electronically, you agree to release CHASM from any claim you may have as a result of any unauthorised copying, recording, reading or interference with that document after transmission, for any delay or non-delivery of any document and for any damage caused to your system or any files by the transmission (including by any computer virus).
  5. Staff
    1. Both parties agree that during the provision of the Services, and for a period of six months thereafter, they will not make any offer of employment to an employee of the other party involved in the Services, without the other party’s prior consent.
  6. Copyright, Intellectual Property
    1. Where the Services specifically involve CHASM developing a process or other intellectual property on behalf of the Client, any rights to that intellectual property will vest in the Client. Otherwise CHASM retains copyright in all documents and reports produced by it provided you are licensed to use such documents and reports in connection with your project.
    2. Subject to clause 6.1, if, in performing the Services, CHASM develops any intellectual property, including computer programs, rights to that intellectual property will remain with CHASM.
  7. Right to Act Autonomously
    1. CHASM will undertake the Services in the manner that it considers most appropriate in delivering those Services.
  8. Fees, Expenses and Payment Terms
    1. CHASM’s services are provided on the basis of a schedule of time-based rates unless otherwise stated in the Engagement Letter. The amounts invoiced are based on actual hours and expenses incurred on a project. Where an estimate is provided in advance, this should not be construed as a lump-sum or fixed-price quotation unless this is explicitly stated in the Engagement Letter. Where an estimate is likely to be exceeded for any reason, we will seek approval to proceed before significantly exceeding the estimate.
    2. The time based fees, if any, quoted in the Engagement Letter will remain in force until the agreed work is completed however CHASM may increase its fee rates for agreed work beyond the original scope that continues past a June 30 date.
    3. All time spent on an assignment, including reasonable travel time, will be charged as per a quotation provided by CHASM. All rates are in Australian Dollars, exclusive of regional taxes and charges.
    4. All time based charge rates will be based on a maximum 12 hour days for site work and an 8 hour day for off-site work unless otherwise set out in the engagement letter.
    5. Where vehicle travel occurs to and from site only, vehicle expenses are assumed to be included in the standard Services charge rate for travel time.
    6. Time spent as an expert witness on legal matters, arbitrations and Commissions of Enquiry will be charged at not less than 50% in excess of the standard rates.
    7. For continuous blocks of work, daily rates may be agreed based on the hourly rates and expected workload, as set out in the Engagement Letter.
    8. CHASM uses high performance personal computers and standard office and software development programs for which no charge is made. For specialised work not covered under Section 8.3 requiring specific technical hardware or software, a cost + 10% or an agreed charge may be applied.
    9. Software packages pre-developed will be charged at an agreed cost. Modifications of software specific to the client will be charged at the indicative hourly rate.
    10. Report printing charges will apply.
    11. Other expenses not covered under Section 8.3, such as airfares, accommodation or car hire costs incurred by CHASM or its employees in the course of or attributable to, the Services will be charged at cost plus a service fee of 10% unless paid directly by you.
    12. If we are required (subject to subpoena or other legal process, including investigations by government authorities) to produce documents, attend interviews or attend court in relation to the Services for judicial or administrative proceedings to which CHASM is not a party, you shall reimburse CHASM at standard billing rates for our professional time and expenses, including reasonable legal fees, incurred in responding to such requests.
    13. A 10% Goods and Services Tax (GST) applies in addition to the fees and rates shown above for all goods and services provided to Australian clients or to non-Australian clients in relation to designated Australian services. CHASM will supply tax invoices for services incurring GST. This will enable you to claim input tax credits for the Services.
    14. At the discretion of CHASM, interest may be charged on the daily balance of overdue accounts at the same rate as the maximum overdraft rate of the Commonwealth Bank, plus 2.5%, without relieving the client of its obligation to pay the account.
    15. CHASM shall also be entitled to recover as a debt all costs, legal fees and expenses on a solicitor and client basis, court costs and fees, collection agency charges paid or due for payment by CHASM and such further sums as will fully recompense CHASM for all its costs, expenses and losses incurred in respect of failure, refusal or default of the Client to pay in full.
    16. Progress invoices are normally issued at monthly intervals and payment in full of each invoice is due within 30 days of issue. CHASM reserves the right to withhold signature of final reports while payments remain outstanding.
  9. Problem Resolution
    1. If a problem arises that cannot be resolved through mutual discussion and agreement, the parties may agree to enter into mediation, or some form of alternative dispute resolution, before commencing legal proceedings.
    2. In the event of a dispute, or where fees remain unpaid beyond the due date, CHASM reserves the right to suspend provision of the Services until such time as the dispute is resolved or the fees are paid. Suspension of the services will not affect your obligation to pay CHASM for Services rendered to the date of suspension.
    3. Except in the case of a genuine dispute, no person is entitled to use or rely on an document, report or advice provided by CHASM while any fees (or reimbursement of expenses) due to CHASM are outstanding and, in those circumstances, CHASM may require the return to it by any person of all copies of any such document, report or advice and any part of it in their possession.
  10. Termination of Agreement
    1. Either party may terminate this Agreement if:
      1. The other commits any material or persistent breach of its obligations under this Agreement (which, in the case of a breach capable of remedy, shall not have been remedied within 14 days of receipt by the party in breach of a notice identifying the breach and requiring its remedy); or – The other becomes insolvent, any steps are taken in relation to it in order to wind it up or any person is appointed in respect of the whole or
      2. any part of its assets in order to enforce any security ; or – The Services are suspended under clause 9.3 for more than 10 normal working days.
    2. Termination must be effected by written notice served on the other party. Termination under this clause shall be without prejudice to any rights that may have accrued for either party before termination and all sums due to CHASM shall become payable in full when the termination takes effect.
  11. Limitation of Liability
    1. In this section, we set out and you accept, the limitations which apply to CHASM’s liability to you should you have reason to make a claim against us. The limitations and exclusions are accepted by both parties to be fair and reasonable, given the Services being provided, the sums to which CHASM is entitled and the availability (and cost) of insurance.
    2. Nothing in these Terms excludes, restricts or modifies the application of the provisions of any statute (including the Trade Practices Act 1974) where to do so would be ineffective under that statute or cause any part of these Terms to be void.
    3. These terms, and the Engagement Letter, are the only communications governing our relationship. Subject to clause 11.2, CHASM will have no liability for any statements, representations, guarantees, conditions or warranties (collectively referred to as “representations”) arising from communications (oral or written) which are not expressly contained in this Agreement. All representations to exercise reasonable care or render our services with due care and skill which may otherwise be implied by statute, common law or custom are expressly excluded. If representations are of importance to you, you should ensure that they are expressly set out in the Engagement Letter before signature.
    4. Subject to clauses 11.2 and 11.5, you agree that CHASM’s liability for any loss or damage suffered by you (whether direct, indirect or consequential) in connection with our engagement or in any way arising out of the performance of the Services, including (without limitation) liability for any negligent act or omission or misrepresentation of CHASM, shall be limited to the amount of professional fees paid to CHASM in respect of the Services and you agree to release CHASM from all claims arising in connection with the Services to the extent that CHASM’s liability in respect of such claims would exceed the amount of those professional fees.
    5. If CHASM is liable for a breach of any warranty implied by section 74 of the Trade Practices Act, 1974 in respect of Services not of a kind ordinarily acquired for personal, domestic or household use or consumption, CHASM’s liability under that section is limited to supplying of the Services again or the payment of the cost of having the Services supplied again, whichever CHASM, in its absolute discretion, elects.
    6. To the extent permitted by law, you agree that to the extent that any loss or damage suffered by you is attributable to negligence, fault or lack of care on your part or on the part of any person for whom you are responsible, CHASM is not liable (in contract, tort or otherwise) for the loss or damage.
  12. Indemnities
    1. You agree to indemnify and hold harmless CHASM against any and all losses, claims, costs, expenses, actions, demands, liabilities or any other proceedings, whatsoever incurred by CHASM in respect of any claim by a third party arising from or connected to any breach by you of your obligations under this Agreement.
    2. CHASM shall not be liable for any losses, claims, expenses, actions, demands, damages, liabilities or any other proceedings arising out of any reliance on any information provided by you or any of your representatives which is false, misleading or incomplete. You agree to indemnify and hold harmless CHASM from any such liabilities we may have to you or any third party as a result of reliance by CHASM on any information provided by you or any of your representatives which is false, misleading or incomplete.
    3. In the event of any inconsistency between clauses 11 and 12, clause 12 shall prevail.
  13. Force Majeure
    1. If the performance of this Agreement by a party is prevented or restricted by reason of fire, storm, flood, earthquake, war, terrorism, labour dispute, transportation embargo, law, order, or directive of any government in matters relating to this Agreement, or any other act or condition beyond the reasonable control of that party, then the party is excused from such performance to the extent of the same, but will use their best efforts to avoid or remove the causes of non-performance and to cure and complete performance with the utmost dispatch.
  14. Governing Law and Jurisdiction
    1. This Agreement and all aspects of CHASM’s engagement and performance of the services are governed by, and construed in accordance with, the laws applicable in the state of Victoria, Australia. Both you and we agree to irrevocably submit any disputes arising under this agreement to the exclusive jurisdiction of the courts of that state.
  15. Variation
    1. No variation of this Agreement will be valid unless confirmed in writing by authorised signatories of both parties on or after the date of signature of the Engagement Letter.
  16. Assignment
    1. Neither party may assign, transfer, encumber or otherwise deal with its rights pursuant to this deed either at law or in equity without the written consent of the other.
  17. Miscellaneous
    1. Whilst on your mine site, CHASM undertakes to comply with all client health and safety and legislative requirements.