“CUSTOMER” is the client with whom Photomapping Services Pty Ltd (“CONTRACTOR”) have or intend to enter into a contractual agreement (“CONTRACT”) and is subject to these conditions of contract (“CONDITIONS”).
“CONTRACTOR” means Photomapping Services Pty Ltd as set out in the documents evidencing the CONTRACT.
“DATA” means the digital data product(s) delivered as part of the “CONTRACT”
“COMPLETION OF CAPTURE” means following the successful quality review of all field data captured (airborne or ground survey), the acquisition of the DATA will be considered complete.
The CUSTOMER agrees and confirms their agreement and acceptance of the CONDITIONS and the applicable quoted schedule of rates, fees and costs detailing payment and the service terms, which together form part of the CONTRACT between the CUSTOMER and the CONTRACTOR. The CONTRACT contains all the terms and conditions of the agreement between the parties and unless explicitly modified in writing by both the parties, and supersedes any prior or subsequent discussions or arrangements.
1. SCHEDULE OF RATES
1.1 Unless otherwise stated, Government charges, statutory fees, duties, excise, royalties, taxes, licenses, permits and registration fees are not included in the rates given in the Schedule of Rates.
1.2 Unless otherwise stated, hire charges for personnel and equipment commence from the date of dispatch from the point of mobilisation.
2. GST
2.1 Rates set out in the CONTRACT and the Schedule of Rates are exclusive of the Australian Goods and Services Tax (GST) unless otherwise stated.
3. RISE AND FALL
3.1 The CONTRACTOR reserves the right to adjust the rates given in the Schedule of Rates for inflation based on the movement in the Consumer Price Index (CPI) of the Country of Work or for any increase in Surveying industry award rates or the Pilots GA Award, which exceed CPI movements, from the date that the CONTRACT is entered into by the CUSTOMER and the CONTRACTOR.
4. THIRD PARTY COSTS
4.1 Where Third-Party costs are not included in the rates given in the Schedule of Rates, this shall be payable at cost plus twenty percent (20%).
5. VALIDITY
5.1 Unless otherwise specified in writing the CONTRACTOR submissions are valid for a period of one (1) calendar month from the deadline for tender submission or from the date the submission was provided by the CONTRACTOR to the CUSTOMER.
6. SITE SAFETY
6.1 Unless otherwise stated, the CONTRACTOR has allowed for Site Safety Procedures as required by the relevant local health and safety act.
6.2 Any requirement of the CONTRACTOR by the CUSTOMER to implement safety procedures over and above those detailed in the relevant local health and safety act that attracts additional cost, will be payable by the CUSTOMER.
7. CONTRACT AWARD
7.1 Any acceptance, either written, email, or verbal, of the CONTRACT shall be deemed an acceptance of the CONDITIONS herein.
7.2 The CONTRACTOR reserves the right to charge a fee to the CUSTOMER in the event the CUSTOMER delays a previously agreed project start date. The fee charged would be for costs caused by the delays, plus twenty percent (20%).
8. MOBILISATION/DEMOBILISATION
8.1 Unless otherwise stated, Mobilisation/Demobilisation charges for personnel and equipment shall be from the CONTRACTOR Home airport as defined within the quotation. Where Mobilisation/Demobilisation takes place from a place other than this Home airport additional charges for accommodation, freight, insurance, handling and any other related expenses may apply. The CONTRACTOR reserves the right to charge these costs to the CUSTOMER.
8.2 Seven (7) days’ notice is required by the CONTRACTOR prior to mobilising to the site and prior to remobilising after major interruptions to the continuity of the work, unless otherwise agreed.
8.3 The rates provided for the installation works in the Schedule of Rates are based on continuous work and uninterrupted access to the site. Any interruption or disruption to the continuity of the works by others (e.g. other subcontractors, consultants, engineers, etc.) will be chargeable. A minimum charge of four (4) hours will apply.
9. SITE VARIATIONS
9.1 Work in addition to the CONTRACT scope shall not be performed by the CONTRACTOR without written confirmation or signed site instruction from the CUSTOMER or its authorised representative.
10. SPECIFICATIONS
10.1 The specification to which the work is to be carried out, and any subsequent modifications to those specifications, must be agreed in writing.
11. AVAILABILITY
11.1 Should any equipment or personnel detailed in the CONTRACT be unavailable, the CONTRACTOR reserves the right to substitute equipment or personnel equal to that detailed in the CONTRACT.
12. HOURS OF WORK
12.1 The pricing in the CONTRACT is based on a 5-day, 38-hour working week, worked between 8 am and 5 pm with 1 hour for lunch.
13. PERSONNEL
13.1 During the term of the CONTRACT, the CUSTOMER agrees not to employ or offer employment to the CONTRACTOR personnel, either staff or subcontractors.
14. STORAGE
14.1 After the satisfactory completion of a CONTRACT, all DATA relating to the CONTRACT will be retained by the CONTRACTOR for a minimum period of 12 months. DATA may be stored for longer periods depending upon specific arrangements made with the CONTRACTOR on a case-by-case basis.
15. DATA ACCEPTANCE
15.1 Unless otherwise agreed, the acceptance period for any work performed by the CONTRACTOR shall be sixty (60) days, after which the work shall be deemed as accepted. This assurance applies only to unaltered original work as provided to the CUSTOMER by the CONTRACTOR.
15.2 If within the data acceptance period an error or mistake occasioned by the CONTRACTOR’s personnel or equipment or subcontractors’ personnel or equipment in providing goods and services under the CONTRACT, the CONTRACTOR’s liability shall be limited to the CONTRACTOR’s costs relating to the rework of the work executed erroneously.
15.3 Any supplied DATA is to be used only for the purpose for which it was commissioned and in accordance with the terms of engagement. Use of any supplied DATA for purposes other than those stated is entirely at the risk of the CUSTOMER.
16. COPYRIGHT & INTELLECTUAL PROPERTY
16.1 Unless otherwise agreed in the CONTRACT, all copyright and intellectual property created by the CONTRACTOR during the term of this CONTRACT remains the property of the CONTRACTOR.
16.2 In consideration of 16.1, the CONTRACTOR grants in perpetuity, the CUSTOMER an unrestricted and non-exclusive license of the DATA.
17. QHSE MANAGEMENT SYSTEM (MS)
17.1 The QHSE MS applies to all the CONTRACTOR operations worldwide and ensures international standards are maintained. The Framework has been developed to ensure that the CONTRACTOR’s QHSE MS is compliant with the following:
a) AS/NZS ISO 9001: 2016 – Quality Management Systems.
b) AS/NZS ISO 45001:2018 – Occupational Health & Safety Management Systems.
c) AS/NZS ISO 14001:2018 – Environmental Management Systems.
18. PAYMENT AND RETENTION MONIES
18.1 Payment for invoiced work performed shall be made within fourteen (14) days of the date the invoice was raised by the CONTRACTOR, provided credit facilities have been granted to the CUSTOMER by the CONTRACTOR. Otherwise, payment is due in full on the invoice date.
18.2 In the event that the CUSTOMER fails to pay within the 14 days and does not provide a satisfactory explanation, the CONTRACTOR at its sole discretion may deem this to be a breach of the CONTRACT, terminate the CONTRACT immediately, and recover the monies owing through any lawful means.
18.3 The CONTRACTOR reserves the right to charge an administration fee at a rate of two percent (2%) per month on overdue invoiced monies.
18.4 Invoices shall be paid in full without retention unless otherwise agreed to in writing by the CONTRACTOR.
18.5 Any costs involved in collecting outstanding debts will be charged to and paid for by the CUSTOMER.
18.6 Account queries will only be accepted within 10 working days of receipt of the invoice. After this time, the CONTRACTOR will assume the debt due, in full, by the due date. Furthermore, the CONTRACTOR does not accept that a query on a part of an invoice/account is sufficient reason for non-payment. Where such adjustment is necessary, the CONTRACTOR expects the balance of the amount owing to be paid.
19. CREDIT TERMS
19.1 Credit facilities may be granted after completion of the CONTRACTOR’s Credit Application Form.
19.2 Until a satisfactory trading pattern is established with the CONTRACTOR, non-payment of an account within the specified payment terms may result in credit facilities being suspended or withdrawn.
19.3 Approved credit limits are to be strictly adhered to unless otherwise arranged and agreed upon. Where an account has reached its set limit, further work will only be undertaken when the account has been reduced or cleared or on a cash only basis.
19.4 The CONTRACTOR may provide credit to the CUSTOMER as our customer. The CONTRACTOR is not able to give credit on the basis that the CONTRACTOR is to be paid when the CUSTOMER is paid unless prior acceptable arrangements have been made.
19.5 Transfer of ownership of an account can only take place if prior acceptable arrangements have been made with the CONTRACTOR.
19.6 If the CUSTOMER acts on behalf of another government entity, the true ownership of the debt must be established prior to the commencement of work being carried out. Transfer of debt will not be considered where the party involved does not have an established credit account with the CONTRACTOR.
20. LIQUIDATED DAMAGES
20.1 Liquidated Damages shall not be applicable to the CONTRACT.
21. FORCE MAJEURE
21.1 The CONTRACTOR, in the execution of the CONTRACT, shall not be liable for any delay or loss in providing goods or services under the CONTRACT as a result of Force Majeure Events. A Force Majeure Event is defined as follows:
21.2 Acts of God (including inclement weather and cyclones as defined in clause 21.3), fires, earthquakes, floods, accidents, acts of war, civil commotions, strikes or other industrial actions, bans or limitations on work, mechanical or electrical equipment failure which could not have been prevented by regular care and maintenance, radio interference, lack of access to spare parts or technical expertise to remote locations, changes in award rates, all of the above being a cause or causes which could not reasonably have been foreseen by the CONTRACTOR and which could not be overcome by using sound business practices.
21.3 Inclement weather is defined as climatic conditions that do not permit work to be carried out to the standards required by the specification set out in the CONTRACT.
21.4 The CONTRACTOR shall be entitled to full payment during Force Majeure Events. Where applicable the rates given in the CONTRACT Schedule of Rates shall apply to this CONTRACT.
22. CONSEQUENTIAL DAMAGES
22.1 Notwithstanding any other provision of the CONTRACT to the contrary, neither party shall be liable to the other in tort, CONTRACT or otherwise at law, for any incidental, special or consequential losses or damages, or damages for loss of data, business opportunity, goodwill, loss of use or production, anticipated savings, profits, or revenue in connection with the CONTRACT however caused.
23. LIABILITY
23.1 Notwithstanding any other provision in the CONTRACT or any other agreement reached between the parties and to the maximum extent permitted by law:
a) the CONTRACTOR and its officers, employees, agents, consultants, licensors, partners and affiliates are excluded from all liability to the CUSTOMER or any other person for any loss, cost, expense, claim or damage (whether arising in contract, negligence, tort, equity, statute or otherwise, and for any loss, whether it be consequential, indirect, incidental, special, punitive, exemplary or otherwise, including any loss of profits, loss or corruption of data or loss of goodwill) arising directly or indirectly out of, or in connection with, the CONTRACT and/or the acts or omissions of the CONTRACTOR except for any loss due to the CONTRACTOR’S fraud, wilful default, or acts/omissions that cannot be excluded by operation of law.
b) The CONTRACTOR’S total liability in respect of loss or damage sustained by a party in connection with this CONTRACT or between the CONTRACTOR and the CUSTOMER is limited to the lesser of 100% of the CONTRACT value and payment made by or on behalf of the CUSTOMER to the CONTRACTOR during the last 12 months of the CONTRACT term.
24. PRIVACY
24.1 The CONTRACTOR may collect personal information about the CUSTOMER in the course of providing services, including to contact and communicate with the CUSTOMER employees, agents or officers, to respond to enquiries and for other purposes set out in the CONTRACTOR’s Privacy Policy which can be found here. The Privacy Policy contains more information about how the CONTRACTOR uses, discloses, and stores personal information and how individuals can access and correct personal information. By entering the CONTRACT the CUSTOMER agrees to the terms in the Privacy Policy.
25. APPLICABLE LAW AND ARBITRATION
25.1 This CONTRACT shall be governed in accordance with the laws of the Commonwealth of Australia and the State of Victoria unless the contract is to be performed wholly within another State in which case the laws of that State shall apply.
25.2 Should a dispute be unresolved by mutual discussion the matter shall be brought before an independent arbitrator agreed by the parties for resolution of the dispute. If the parties cannot agree on an arbitrator within 14 days, then The Resolution Institute shall nominate an arbitrator.
26. CUSTOMER DETERMINATIONS
26.1 The CUSTOMER agrees to be fair and reasonable in the implementation of any and all terms and conditions of the CONTRACT, these Conditions, and the Schedule of Rates.
27. INSURANCE
27.1 The CONTRACTOR holds in the least the following insurances:
a) Professional Indemnity
b) General Public & Product Liability
c) Workers Compensation
d) Motor vehicle third party and third-party property damage
27.2 In the event of loss or damage as a result of negligence on the part of the CUSTOMER then the CUSTOMER shall be deemed liable.
