TERMS AND CONDITIONS

SCOPE OF SERVICES

Zero Industries will provide to the client, being the person requiring the services and for whom the services are being rendered, the consulting services described in these Terms of Business and the accompanying documents.

SKILL AND CARE

In providing the services, Zero Industries will exercise the degree of skill, care and diligence normally exercised by professional consultants in Australia & New Zealand performing services of a similar nature.

CHANGE OF SCOPE OF SERVICES

The services described in the accompanying documents are based on facts known to Zero Industries at the time of preparation of those documents including information supplied by the client. Subsequent information may indicate that the scope or timing of the services must be re-defined or the client may request changes to the scope or timing of the services.

If there is a change in the scope, order or timing of the services, then Zero Industries will be entitled to amend the price by an amount reasonable in the circumstances.

Zero Industries will provide the client with an amended scope of and schedule for the provision of the services and an amended price each of which will be deemed to have been approved by the client if not objected to within 10 business days after receipt by the client.

FEES

The client must pay Zero Industries the fee and the reimbursable expenses (together called “the price”) as set out in the accompanying documents. A mark-up of 17.5% will be applied to the total cost of all reimbursable expenses to cover the cost to the Zero Industries of finance, administration and coordination.

Reimbursable expenses include, but are not limited to, travel and accommodation, equipment use/hire, communications, computer usage and fees charged by other professional consultants as part of the agreement.

Unless otherwise specified in the accompanying documents, the fee does not allow for works undertaken outside normal business hours, which will incur an additional charge.

The price may be subject to periodic rise and fall adjustment in accordance with the formulae (if any) set out in the accompanying documents.

TERMS OF PAYMENT

The client must pay all amounts invoiced within 21 days after the date of the invoice - unless otherwise agreed upon

Any amount not paid within that period will attract interest from the date of the invoice until payment at the reference or indicator rates used by Zero Industries Principal bank plus 1% per month.

Payments received will be applied firstly against any interest owing under this clause and secondly against the outstanding invoice amount. Invoices may be rendered monthly for services performed in the preceding month, and when the services have been completed.

DELAYS AND CHANGES IN THE LAW

If events beyond the control of the client or Zero Industries result in delay to any schedule agreed for the provision of the services that schedule will be amended to the extent necessary to compensate for the delay. Zero Industries will be entitled to an extension of time for providing the services equal to the delay plus consideration for compounded effects regarding accessibility, availability and coordination of services.

Zero Industries may adjust the price to reflect any increase in costs or loss it incurred as a result of the delay unless the delay is caused by Zero Industries. If after the date of engagement of Zero Industries under these Terms of Business there is any change to laws, licenses, permits, approvals or statutory authorities relevant to the services and that change directly or indirectly increases the costs of performing the services or results in any loss being incurred by Zero Industries, then the price shall be increased accordingly.

TERMINATION/SUSPENSION

The client may terminate the services of Zero Industries if Zero Industries is in substantial breach of its obligations relating to the services and that breach has not been remedied within 30 days (or after an agreed alternative period) after receipt of a written notice from the client identifying the breach and requiring it to be remedied.

On termination by the client, the client shall pay Zero Industries all invoice and interest amounts outstanding at the date of termination, the price for all services rendered up to the date of termination, and the amount of all expenses incurred and commitments made in relation to the services.

Zero Industries may suspend or terminate its obligations relating to the services:

if any money payable to Zero Industries has been outstanding for more than 30 days; or
if the client is in substantial breach of any of its obligations relating to the services which has not been remedied within 30 days after receipt of a written notice from Zero Industries identifying the breach and requiring it to be remedied.

TIME LIMIT FOR MAKING CLAIMS

Zero Industries and its servants, agents and sub-consultants, shall be deemed to have been discharged from all liability whatsoever in respect to the services, whether under the law of contract, tort or otherwise, at the expiration of one (1) calendar year from the completion of the services, unless otherwise provided in the accompanying documents, The client and persons claiming through or under the client shall not be entitled to commence any action or claim whatsoever against Zero Industries, its servants, agents or sub-consultants in respect of the services after that date.

For the purposes of this clause, Zero Industries contracts on its own behalf and on behalf of its servants, agents and sub-consultants.

LIMITATION OF LIABILITY

The liability of Zero Industries, its servants, agents or sub-consultants 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 supplying the services again, or
paying the cost of having the services supplied again.

The maximum liability of Zero Industries, its servants agents or sub-consultants, 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 the price actually paid by the client in respect of the services up to a maximum of $50,000, unless otherwise provided in the accompanying documents.

For the purposes of this clause, Zero Industries contracts on its own behalf and on behalf of its servants, agents and sub-consultants.

The client acknowledges and agrees that neither Zero Industries, nor its servants, agents or sub-consultants, will be liable under the law of contract, tort or otherwise for economic loss, whether direct or consequential, suffered by the client or any indirect or consequential loss of any kind.

Zero Industries does not give any warranty nor accept any liability in relation to the performance or non-performance of the service except to the extent, if any, required by the law or specifically provided for in these Terms of Business or the accompanying documents.

If, apart from this clause any warranty would be implied whether by law, custom or otherwise, that warranty is to the full extent permitted by law hereby excluded.

Nothing in these Terms of Business shall be read or applied so as to purport to exclude, restrict or modify or have the effect of excluding, restricting or modifying the application in relation to the supply of any goods or services pursuant to these Terms of Business of all or any of the provisions of Part V, of the Trade Practices Act 1974 (as amended) or any relevant State or Territorial legislation which by law cannot be excluded, restricted or modified.

Notwithstanding, and without limiting the provisions of this clause and the clause TIME LIMIT FOR MAKING CLAIMS, the client acknowledges and agrees that no servant, agent or sub-consultant of Zero Industries will have any separate or individual liability to the client.

The client will indemnify and hold Zero Industries harmless against all claims, costs and demands by third parties in respect of the services.

NO ASSIGNMENT

The client may not transfer, sublet or assign any of its rights or obligations under these Terms of Business without the prior written consent of Zero Industries. Zero Industries may engage another consultant to assist it in a specialist area. Zero Industries will not require the client’s consent where it is paying for the fees and costs of such consultant.

If, however Zero Industries is of the view that the cost of the consultant should be a disbursement to the account of the client then it will be required to first obtain the client’s consent to such engagement.

NON-SOLICITATION

The CLIENT shall not offer to employ the contracted Zero Industries Employees in the service of itself or that of any subsidiary, affiliate, related corporation or associated person during the term of this Agreement nor within a period of six months following the completion of this Agreement nor within a period of six months from the introduction date should an agreement not be reached unless the prior written consent of Zero Industries is obtained. If the CLIENT does employ or engage the contracted Zero Industries.

Employee within the period specified, then without prejudice to Zero Industries’s other rights and remedies the CLIENT shall pay to Zero Industries a placement fee calculated at twenty five percent (25%) of the estimated gross annual fee or salary package (as the case may be) paid or payable to the contracted Zero Industries Employee or its employees by the CLIENT.

INTELLECTUAL PROPERTY RIGHTS

Zero Industries retains copyright and all other intellectual property rights in the drawings, reports, software source codes and other documents and concepts provided by Zero Industries during the submission and/or negotiation period prior to the establishment of a “contract for services” or as part of or in connection with the agreed services. Drawings, reports, software source codes and other documents and concepts provided by Zero Industries are “commercial-in- confidence” and must not be distributed to any third party without the express consent of Zero Industries.

Once an agreed contract for services is in place the client shall have a licence to use the drawings, reports, software source codes and other documents provided by Zero Industries in connection with the services for the purpose for which those drawings, reports, software source codes and other documents are prepared.

The client shall not use or make copies of those drawings, reports, software source codes or other documents for any purpose other than that for which they were originally prepared.

If Zero Industries develops, discovers or produces during the course of providing the service, a service, concept, product or process which is capable of being patented then the service, concept, product (includes software source code) or process remains the property of Zero Industries. The client shall be entitled to a royalty free licence to use the same for only that project and specific function for which the contract for services was originally engaged.

REUSE OF DOCUMENTS

If without Zero Industries approval, the client:

re-uses for any purpose other than that for which originally prepared,
or
makes any alteration to any drawings, reports, document or other items supplied by Zero Industries as part of the service then the client does so at its own risk.

The client will indemnify and hold Zero Industries harmless against any claim made against Zero Industries and all expense incurred by Zero Industries, including legal expenses on a full indemnity basis arising out of any such re-use or alteration.

RETURN OF DOCUMENTS

The licence conferred upon the client pursuant to this clause will terminate upon:

failure of the Client to make any payment under these Terms of Business on the due date; termination of the agreement by the client for other than a substantial breach of contract by Zero Industries; and
the termination of the agreement for the provision of the services by Zero Industries, and, upon request by Zero Industries.

The client will then return to Zero Industries all drawings, reports and other documents provided by Zero Industries as part of or in connection with the services, together with all copies or duplicates made by the client.

CONSTRUCTION SERVICES

Any opinion of construction costs prepared by Zero Industries is supplied for the general guidance of the client only. Since Zero Industries has no control over competitive bidding or market conditions, the Zero Industries cannot guarantee the accuracy of such opinions as compared to contract bids or actual costs to the client.

Zero Industries is the client’s professional representative for the services and may make recommendations to the client concerning, actions relating to the client’s contractors: however Zero Industries has no authority to direct or supervise the means, methods, techniques, sequences or procedures of construction selected by the client’s contractors.

For projects involving construction, the client acknowledges that under general professional practices, interpretations of construction documents in the field are normally required and that performance of construction related services by the design professional for the Project permits errors or omissions to be identified and corrected at no or comparatively low cost.

The client indemnifies and holds Zero Industries harmless from all claims made against Zero Industries and expenses incurred by Zero Industries including legal costs on a full indemnity basis, arising from the performance of construction related services by persons other than Zero Industries.

INSURANCE

Zero Industries will maintain insurance coverage for public liability, motor vehicle, workers compensation and employer’s liability in amounts in accordance with legal requirements and Zero Industries’ own business requirements.

Certificates evidencing such insurance coverage will be provided to the client on request. For projects involving construction, the client agrees to require its construction contractor, if any, to include Zero Industries as an additional insured on its policies relating to the project.

DISPUTES

If Zero Industries and the client are unable to resolve any dispute within seven (7) days, then it must be referred for mediation.

Unless otherwise agreed between Zero Industries and the client, the mediation will be conducted through the engagement of an accredited mediator recognised by the Law Society of Tasmania or any other agreed mediation organisation in accordance with its principles and practices at that time.

If the dispute has not been resolved in this manner within one (1) month after first being identified as a dispute to be referred to mediation, then Zero Industries and the client may exercise any of their other legal rights.

ANALYSIS OR TESTING

Where any analysis or test is to be made by Zero Industries or its servants, agents, suppliers or subcontractors, then Zero Industries or its servants, agents, suppliers or subcontractors shall not be liable for any loss or damage to or deterioration or destruction of any of the client’s samples or property to be tested or analysed, unless due to the negligence of Zero Industries.

GOODS AND SERVICES TAX (GST)

The Client acknowledges that all amounts payable by it to Zero Industries under or by reason of these Terms of Business are exclusive of any government impost or tax.

If as a result of either the introduction or variation of the rate of GST after the date of this agreement, Zero Industries is obliged to pay GST in respect of the price to be paid by the client, then at the request of either party the parties must negotiate in good faith to agree an adjustment to the fee having regard to:

the cost to Zero Industries of the GST in relation to the agreed price;
the effect on Zero Industries costs of providing the services of changes in the taxation system introduced in conjunction with the GST, including without limitation the repeal of sales tax legislation; and
any other matter relevant to the impact of the GST and related initiatives;
provided that in any event the increased fee must not be less than the GST amount (in each case ignoring tax credits available to Zero Industries). The additional amount will be shown as a separate item in an invoice. Additional amounts are not refundable in any circumstances. A separate additional amount applies to each, supply of services.

An additional amount shall also include an amount equal to the amount of purported tax borne by, or charged by any person to, Zero Industries in respect of goods and services and/or other things acquired by or paid for by Zero Industries to the extent they were acquired or paid for in connection with the performance by Zero Industries of any of its obligations under this agreement for which an input tax credit concerning GST or refund of GST cannot be obtained by, or if obtained is subsequently denied to, Zero Industries.

AMENDMENT OF TERMS OF BUSINESS

The Terms of Business may be amended only in writing signed by director/s of Zero Industries and the client’s authorised representative.

These Terms of Business and the accompanying documents set out the whole of the agreement for the provision of the services.

Client’s purchase order or other terms and conditions are incorporated in and made a part of these Terms of Business only to the extent of specifying the nature, quantity or objective of the services and then only to the extent that such description is consistent with these Terms of Business and the accompanying documents.

No other terms or conditions shall be binding upon Zero Industries unless accepted in writing.