Terms & Conditions
Modus Transport and Traffic Engineering – Terms and conditions
1. Terms and conditions
These terms and conditions apply to engineering services provided by Altus Traffic Pty Ltd ACN 102 768 061 trading as Modus Transport and Traffic Engineering (“Modus”) of 1/660 Lorimer Street, Port Melbourne, Victoria 3207 to the Client pursuant to the Fee Proposal. The Client agrees to be bound by these terms and conditions by acceptance of the Fee Proposal.
2. Definitions
Client means the person or entity and that has commissioned the Services and is responsible for payment of Fees to Modus for the Services.
Contract means the contract between Modus and the Client for the provision of the Services including the Fee Proposal, the Client’s acceptance and these terms and conditions.
Fee means the fee to be paid by the Client to Modus for the Services.
Fee Proposal means Modus’ written offer or quote to provide the Services.
Project means the project which the Client has engaged Modus to provide the Services described in the Fee Proposal.
Services means the engineering consultancy services to be provided by Modus to the Client as offered in the Fee Proposal.
Variation means a change to the Services detailed in the Fee Proposal.
3. Information supplied by the Client
3.1 The Client must provide Modus with all information and documentation about the Project that is required for Modus to provide the Services unless discovery of such information is included in the Fee Proposal.
3.2 The Client warrants that any document, plan or information given by it in relation to for the purposes of Modus to prepare the Fee Proposal or to perform the Services is accurate, adequate and complete unless stated otherwise in writing at the time when the relevant information is supplied.
4. Acceptance by the Client
Modus is not obligated to commence providing the Services until it has received a written acceptance of the Fee Proposal from the Client.
5. Fee
5.1 The Fee or basis on which the Fee is to be calculated is set out in the Fee Proposal.
5.2 The Fee may be based on lump sum, price per unit, schedule of hourly rates, or any other measure of combination of the preceding measures depending on the preference of the Client, Modus and the Project.
5.3 A Fee quoted is not a fixed price unless specifically stated so in the Fee Proposal and only where the scope of the relevant Services to be Provided is specifically defined.
5.4 Where a Fee is stated to be “estimated”, “approximate” or similar in the Fee Proposal this does not constitute a fixed fee and is subject to change.
5.5 An estimate of the number of hours of Services involved may be provided based on Modus’ understanding of the Project. Where additional time is required the Client will be notified of a revised estimate and the Fee varied accordingly. 2
5.6 Where a schedule of hourly rates is provided, these Fees will apply to hourly rate Services and to Variations.
5.7 Modus will charge the Client for the Services provided together with costs incurred by Modus as a result of the following:
a) Delays or complications in the delivery due to difficult access to the site, misrepresentations made regarding access and description of the project or failure to provide particulars regarding access and nature of the Project or Services;
b) Any charges imposed by a third party in connection with the Services; or
c) Any increase in existing or imposition of new taxes, customs duties or government levies.
5.8 All disbursements incurred by Modus for the provision of the Services will be charged to the Client in addition to the Fees (unless already included in the Fee).
5.9 Disbursements include travel, accommodation and similar expenses.
5.10 Any required application fees payable to a third party being a council, government department, authority, utility or private certification company shall be paid by the Client in addition to the Fee or form part of the Fee and payable to Modus.
5.11 Any unforeseen costs of acquiring data arising from a Variation of change of site conditions will be in addition to the original Fee and charged to the Client.
6. Payment terms
6.1 Modus shall provide the Client with an invoice and the Client shall pay Modus’ invoice within fourteen (14) days of the date of the invoice.
6.2 Issued invoices may be to the full value of the Service, where Services have been completed or may be a portion of the Services completed to date.
6.3 In the event that the Client fails to pay in accordance with these payment terms, Modus may exercise one or more of the following rights: a) Require the Client to pay interest at the Penalty Interest Rate specified in the Penalty Interest Rates Act 1983 (VIC) effective from time to time calculated daily on the balance outstanding until the outstanding amount is paid in full; or b) Suspend or refuse to continue to provide the Services to the Client.
6.4 The Client shall not be entitled to set off against the invoice any money alleged to be owing by Modus to the Client.
6.5 If the Client disputes an invoice, the items disputed shall be submitted in writing to Modus within 10 days of receiving the invoice.
6.6 Modus shall not forego any of its rights under the Contract as a consequences of suspension/refusal to continue to provide the Services.
6.7 The Client must pay Modus all reasonable costs incurred as a result of a suspension or refusal to continue to provide the Services.
7. GST
Goods and Services Tax (GST) is not included in the quoted Fees and will be added to all invoices in accordance with Government legislation.
8. Site access
8.1 The Client must make available to Modus such access to the site as reasonably necessary for Modus to carry out inspections and provide the Services.
8.2 The Client must ensure all required site or corporate inductions are made available to Modus, to allow safe and compliant access to sites. The timing of the site or corporate inductions will need to compliment the Program (if submitted to the Client), to avoid unnecessary delays to the Program.
8.3 If inductions have been allowed for in the Fee Proposal, then no additional fees will apply. If inductions have not been allowed for or assumed not to be required, but in fact are required, then they will be invoiced at the rate agreed in the Fee Proposal.
9. Performance
Modus will carry out the Services:
a) In a proper and professional manner; and
b) In the absence of any standard being specified, the Services shall comply with the relevant standard of the Standards Australia.
10. Fee Proposal and limitations
10.1 The Fee Proposal represents the total Services to be supplied by Modus and any responsibility and liability associated with supply of the Services is limited to the tasks included in the Fee Proposal.
10.2 Modus’ expertise may extend into areas outside the Fee Proposal, and the Client shall not rely on that expertise if it is not specified in the Fee Proposal.
10.3 References in the Contract to services or expertise outside the Fee Proposal do not imply that such additional services are included.
10.4 Modus is not responsible for any action or consequences of any action by the Client or others that may related to Modus’ expertise in areas outside the Fee Proposal.
11. Client’s rights to request additional services
11.1 Modus is only obligated to provide the Services descried in the Fee Proposal for the Fees set out in the Fee Proposal.
11.2 The Client may request a change in writing and submit it to Modus for consideration.
11.3 Modus will advise the Client if it agrees to carry out the additional services, the consequential variation of the Fee and any extension of time that may apply.
12. Variations
12.1 Where there is a Variation, and the Variation is due to the requirements of the Client or of third parties or by circumstances outside the control of Modus, a change to the Fee will apply.
12.2 Modus will advise the Client as soon as practicable of the extent of any Variation work and the associated change to the Fee.
12.3 Modus is entitled to extensions of time to the Program where Variations occur.
12.4 Modus is not obligated to commence the Variation work until Modus receives the Client’s written consent.
13. Liability and warranty
13.1 Modus shall not be liable for any loss, damage (including incidental, consequential, special damage, delay costs or liquidated damages), costs or expenses suffered by the Client, to person or property, arising from the Services. Notwithstanding the foregoing, Modus’ liability in the aggregate shall be limited to an amount not exceeding the price for the Services in question which has been paid for by the Client.
13.2 Where legislation implies into those terms and conditions any warranty which cannot be excluded, the liability of Modus for any breach of such condition or warranty shall be limited, at Modus’ option, to one or more of the following: a) The supply of equivalent services; or b) The payment of the cost of replacement of the Services or the acquiring equivalent service.
13.3 The Client releases Modus from an indemnifies and must continue to indemnify Modus against any liability to the Client or any third party for any incidental, indirect, consequential, special, punitive or exemplary damages including delay costs or liquidated damages whatsoever and for any loss of profit.
14. Action/inaction of the Client
The Client continually indemnifies Modus against any claim or proceeding that is made, threatened or commenced and any liability, loss, damage or costs (including legal costs on a full indemnity basis) Modus incurs or suffers as a direct or indirect result of anything the Client does or fails to do under the Contract.
15. Copyright
15.1 Modus retains all copyright to the intellectual property provided in the Services.
15.2 The Client shall have a royalty-free licence to use any intellectual property produced by Modus under the Contract solely for the purposes of the Project.
16. Insurances
16.1 The Client must have in place a public liability insurance policy in the amount of $20 million with a reputable insurer and must provide Modus with a copy of such policy on request.
16.2 Modus currently holds policy for Public and Products liability for $50 million and Professional Indemnity Insurance liability for $10 Million, such policies to be kept current for the duration of the provision of the Services.
17. Withdrawal of Services and termination of the contract
17.1 If the Client fails to perform any of its material obligations under the Contract, Modus may immediately terminate the provision of the Services by written notice of termination to the Client.
17.2 The Contract will immediately terminate without notice, in the event that:
a) the Client becomes insolvent, unable to pay its debts as they become due;
b) the Client discontinues its business;
c) the Client is assigned into bankruptcy, becomes bankrupt or makes an assignment in favour of its creditors;
d) a receiver, manager, liquidator or administrator has been appointed to deal with the Clients assets;
e) there is a change of control of the Client; or
f) the Client dies or becomes incapacitated.
17.3 In the event that the Contract is terminated pursuant to this clause, any money owing by the Client to Modus becomes immediately due and payable.
18. Force Majeure
Modus shall not be liable to the Client for any delay or failure to perform its obligation resulting from circumstances beyond its reasonable control, including but not limited to, war, act of terrorism, riot, insurrection, strike, trade dispute, fire, earthquake, flood, storm or other natural disaster; damage to personnel, material, equipment or other property; shortage of any materials or labour (each an example of “Force Majeure”).
19. Miscellaneous
19.1 The Client shall not transfer, assign or otherwise grant the Contract to any third party without Modus’ prior written consent.
19.2 Any notice required to be given under the Contract shall be in writing and delivered by post, email or personal delivery and shall be deemed to have been received: a) On the date that it was sent if delivered personally, by email; or b) Five (5) business days after posting if sent by mail.
19.3 If any part of these terms and conditions are found void and unenforceable, it will not affect the validity of the balance of these terms and conditions, which shall remain valid and enforceable according to its terms.
19.4 The failure of a party to insist on the performance of an obligation hereunder shall not be deemed to be a waiver of such obligation or of any other obligation.
19.5 The laws of Victoria govern these terms and conditions.
19.6 These terms and conditions cannot be varied or amended without the prior written consent of Modus. Amendments made by hand by the Client to these terms and conditions are not binding and will have no force or effect.