- Scope of application
Unless agreed in writing by the Director of Geosurv Pty Limited ABN 99 121 987 004 (Geosurv):
1.1 all Quotes and orders by the Client for Services are made solely in accordance with these general terms and conditions of supply of services (these T&Cs);
1.2 the Client acknowledges that it has read and understands these T&Cs and is bound by these T&Cs on and from the date the Client signs a copy of the Quote or otherwise provides written confirmation of its acceptance of the Quote to Geosurv (Contract Trigger Event);
1.3 if a Contract Trigger Event does not occur but the Client invites a representative of Geosurv onto (or consents to such person entering onto) premises owned, occupied or controlled (whether or not exclusively) by the Client, then the Client is bound by clauses 6, 7, 9, 10, 13 and 14 of these T&Cs; and
1.4 any terms and conditions of supply that may be incorporated in any order or other document provided by the Client will have no legal effect as between Geosurv and the Client.
- Formation of a Services Agreement
Unless expressly agreed in writing by Geosurv’s CEO:
2.2 any initial scope of work and cost estimate for the supply of Services given by Geosurv is indicative only and subject to the occurrence of a Contract Trigger Event; and
2.3 upon the occurrence of a Contract Trigger Event an agreement will be formed regarding the subject matter in respect of which the Contract Trigger Event occurred, and these T&Cs are incorporated into and form part of that agreement (Services Agreement).
3.1 Subject to clause 4 and the remaining provision in this clause 3, Geosurv will use reasonable endeavours to:
(a) complete the Inspection within 10 days of the Contract Trigger Event; and
(b) supply the Survey Report to the Client within the later of:
(i)10 days after the relevant Inspection; and
(ii) if Geosurv requests information from the Client in connection with the provision of the Services, 10 days after Geosurv receives the requested information in form, substance and completeness reasonably required by Geosurv.
3.2 Supply of the Services will be deemed to have been completed when the Client receives the Survey Report.
3.3 Supply of the Services is subject to the Client’s reasonable cooperation and compliance with its obligations under these T&Cs, including the granting of access to any premises required to be accessed in order for the Services to be performed and payment of all amounts due to Geosurv by the due dates for payment.
3.4 To the extent the Client’s failure to reasonably cooperate or its non-compliance with its obligations under these T&Cs delays performance of the Services, the time within which Geosurv must perform Services will be extended by the reasonable period determined by Geosurv (being at least the duration of the Client’s non-cooperation or non-compliance).
3.5 If Geosurv is unable, wholly or in part, by reason of a Force Majeure Event, to carry our any obligation under these T&Cs, that obligation is suspended to the extent and for so long as it is affected by the Force Majeure Event.
3.6 The Client will grant Geosurv a reasonable extension of time to rectify any delays in the supply of the Services under these T&Cs.
- Fees and payments
4.1 Geosurv will give the Client a tax invoice for the Agreed Fees in respect of the Services supplied or to be supplied under these T&Cs. All tax invoices will be itemised and be in a form that clearly indicates any GST component.
4.2 Unless other payment terms are specified in a tax invoice from Geosurv or any Quote, the Client must pay the amount of any tax invoice in sufficient time so that Geosurv receives the amount within  days after the tax invoice is issued.
4.3 Payments must be by electronic funds transfer into the account which Geosurv notifies the Client from time to time (including in any tax invoice or Quote).
4.4 If the Client fails to pay any amount payable by it to Geosurv on the due date for payment:
(a) Geosurv is under no obligation to perform any further Service, including the provision of any relevant Survey Report; and
(b) in respect of any Agreed Fees relating to Services already performed, the Client must pay interest on that amount from the due date of payment until the date that the amount is paid in full, both dates inclusive. Interest is payable at a per annum rate of the average Reserve Bank of Australia target cash rate published during the period between the date the indebtedness arose until the date the indebtedness is paid in full, plus 4%. Interest accrues and is payable from day to day and is calculated on the basis of days elapsed and a 365 day year. Interest will be capitalised monthly.
4.5 If the Client defaults in payment of any amount due to Geosurv, or Geosurv forms the view the Client’s creditworthiness may result in the Client defaulting on the payment of any amount to Geosurv, Geosurv may give written notice to the Client calling for the immediate payment of any amounts which would otherwise be payable in the future in relation to the supply of the Services, or requiring advance payment for Services to be made, or requiring other reasonable arrangement regarding security of payments.
- Liability for defective Services
5.1 Any Claim that the Client has against Geosurv must be notified in writing to Geosurv within  days after the Client becomes aware of the Claim.
5.2 Geosurv is not liable for, and the Client waives any right to bring, any Claim notified later than one year after Geosurv completes (or is deemed to have completed) performance of the Services which are the subject of the Claim.
5.3 If the Client becomes aware of or is notified of errors, omissions or other inaccuracies in a Survey Report, without limiting the Client’s general obligation to mitigate its losses the Client must immediately:
(a) give notice to Geosurv providing reasonable details of the error, omission or other inaccuracy; and
(b) cease relying on the deficient Survey Report until  days after it gives notice under clause 3(a) during which time Geosurv may give the Client a rectified Survey Report. If Geosurv gives the Client a rectified Survey Report then the Client may rely only on that rectified Survey Report and not the deficient Survey Report.
5.4 Without limiting clauses 2 and 5.3, the liability of Geosurv in connection with any Claims is limited to:
(a) where the Survey Report is to be used as part of a Development Approval Application (as may be specified in the Quote), at Geosurv’s election:
(i) re-performance of the Services (including the preparation of a further Survey Report); or
(ii) reimbursement of all amounts actually paid by the Client in respect of the Services which are the subject of the Claim; and
(b) where the Survey Report constitutes a Property Condition Report, [50 (fifty)] times the Paid Fees.
5.5 Nothing in these T&Cs is intended to operate to exclude, restrict or modify any rights, entitlements, remedies and liabilities that may be implied by or imposed under the Australian Consumer Law or any other statute, the exclusion, restriction or contravention of which would contravene that statute or cause any of these T&Cs to be void.
- Client’s responsibilities
Immediately following demand by Geosurv the Client must pay to Geosurv all liabilities, losses, damages, actions, claims, judgments, costs and expenses (including solicitors’ fees) incurred by Geosurv or its directors, employees, representatives, successors and assigns resulting from or arising in connection with:
(a) any personal injury, disease or illness suffered by, or the death of, any person to the extent caused or contributed to by:
(i) the act or omission of the Client or its employees, agents or subcontractors; or
(ii) the state of any Inspected Property;
(b) physical loss of or damage to property to the extent caused or contributed to by:
(i) the act or omission of the Client or its employees, agents or subcontractors; or
(ii) the state of any Inspected Property;
(c) any negligence or wilful misconduct by the Client or its employees, agents or contractors;
(d) any failure by the Client or its employees, agents or contractors to perform any of the Client’s obligations under these T&Cs; or
(e) the use of the Survey Report (including giving it to a third person) other than in accordance with the Approved Purpose.
Each party excludes all liability for Consequential Loss, whether arising from contract, tort (including negligence), under any statute or otherwise, arising from or in connection with these T&Cs or its subject matter (including the provision or failure to provide the Services).
8.1 In this clause 8, a word or expression defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) has the meaning given to it in that Act.
8.2 If a party makes a supply under or in connection with these T&Cs in respect of which GST is payable, the consideration for the supply but for the application of this clause 8 (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made.
8.3 If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 2.
8.4 Any consideration to be paid or provided for a supply made under or in connection with these T&Cs, unless specifically described in these T&Cs as GST inclusive, does not include an amount on account of GST.
The Client acknowledges and agrees that:
9.1 the Survey Report is provided for the Approved Purpose only, and the Client may rely on the Survey Report for the Approved Purpose only;
9.2 it must not provide the Survey Report (or any information contained in the Survey Report) to any third person other than as contemplated under the Approved Purpose; and
9.3 Geosurv does not provide any Express Warranties (as defined in the Australian Consumer Law) other than those expressly confirmed by Geosurv in writing. Subject to any law to the contrary, all terms, conditions, warranties and statements, whether express, implied, written, oral, collateral, statutory or otherwise, other than those in these T&Cs, are excluded and Geosurv disclaims all liability in relation to these to the maximum extent permitted by law.
- Intellectual Property Rights
10.1 All Intellectual Property Rights in the Services (including the Survey Report) are and remain the property of Geosurv. The Client acknowledges that it does not own any Intellectual Property Rights in the Services (including the Survey Report) and these T&Cs do not transfer any proprietary interest in or to the Intellectual Property Rights in the Services (including the Survey Report).
10.2 To the extent necessary and for the sole purpose of exercising its rights and performing its obligations under these T&Cs (including using the Services for the Approved Purpose), Geosurv grants to the Client a nonexclusive, royalty free, revocable, non-transferable licence to use the Intellectual Property Rights in the Services (including the Survey Report) in accordance with these T&Cs, subject to any restrictions Geosurv may reasonably impose.
10.3 If the Client becomes aware that there is, or is likely to be:
(a) an infringement or threatened infringement of the Intellectual Property Rights in the Services (including the Survey Report); or
(b) a common law passing off of the Services (including the Survey Report), the Client must promptly notify Geosurv.
10.4 Under the licence referred to in clause 2, the Client must:
(a) ensure that the Intellectual Property Rights in the Services (including the Survey Report) is used in accordance with the instructions and guidelines provided by Geosurv from time to time;
(b) obtain Geosurv’s approval to any proposed new use of the Intellectual Property Rights in the Services (including the Survey Report); and
(c) ensure that any use by it of Intellectual Property Rights in the Services (including the Survey Report) accords with the laws, except to the extent such use was directed by Geosurv.
10.5 The parties agree that the licence referred to in clause 2 excludes:
(a) the right to commence an action for trade mark infringement under section 26(1)(b) of the Trade Marks Act 1995 (Cth), which right Geosurv expressly reserve to itself in all instances; and
(b) the rights of an authorised user of a trade mark referred to in sections 26(1)(d), (e) and (f) of the Trade Marks Act 1995 (Cth).
10.6 The Client must not, directly or indirectly, challenge, contest or deny or assist any other person to challenge, contest or deny the validity of the Intellectual Property Rights in the Services (including the Survey Report). The Client will procure that all trade marks and designs forming part of the Intellectual Property Rights in the Services (including the Survey Report) are applied in accordance with the directions of Geosurv from time to time.
10.7 The Client must not in any territory apply for any trade mark relating to Intellectual Property Rights in the Services (including the Survey Report).
10.8 Any proceedings issued for any infringement or threatened infringement of the Intellectual Property Rights in the Services (including the Survey Report) will be under the control and at the expense of Geosurv and the Client will not commence any proceedings in relation to any infringement or threatened infringement of the Intellectual Property Rights in the Services (including the Survey Report).
These T&Cs and any information, drawings, specifications or data of Geosurv (including in relation to the Services and the Survey Report) constitute confidential information. The Client must keep that information confidential and not (except to the extent required by law) disclose the information to any person except with the prior consent of Geosurv or the extent contemplated under the Approved Purpose.
12.1 Either party may terminate a Services Agreement with immediate effect if the other party ceases to carry on a business, is unable to pay its debts as they become due, is presented with a winding up petition or if any step is taken to appoint a receiver, receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, or an administrator to its assets, operations or business.
12.2 Geosurv may terminate a Services Agreement by providing  days notice to the Client.
12.3 On termination of a Services Agreement under clause 1 or 12.2, if any Services have been performed but not paid for, the Agreed Fees for those Services will become immediately due and payable despite any previous agreement or arrangement.
12.4 Termination of a Services Agreement does not affect any accrued rights or remedies of the parties.
12.5 Clauses 1.0, 2 to 4.4, 5 to 10, 13 and 14, and this clause 12, are independent and survive termination of a Services Agreement.
- Other matters
13.1 To the extent that there is any inconsistency or conflict between the terms and conditions set out in the Quote and these T&Cs, the terms and conditions in the Quote will prevail.
13.2 These T&Cs are governed by the laws of Western Australia and the parties submit to the non-exclusive jurisdiction of the courts of Western Australia.
13.3 A term or part of a term of these T&Cs that is illegal or unenforceable may be severed from these T&Cs and the remaining terms or parts of the term continue in force. The Client and Geosurv will act in good faith and use reasonable endeavours to seek agreement to replace the illegal or unenforceable term or part of a term with terms that closely reflect the original drafting and intention. A rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this agreement or any part of it
13.4 No waiver by Geosurv of any breach of these T&Cs by the Client will be considered as a waiver of any subsequent breach of the same or any other provision. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.
13.5 A Services Agreement cannot be changed (including variations to the Services being supplied) or, subject to clause 2, cancelled unless such change or cancelation is in writing and signed by both parties.
13.6 The Client agrees that Geosurv enters into these T&Cs on its own behalf and, in respect of the Client’s rights under these T&Cs, also as trustee for each related body corporate (as defined in the Corporations Act 2001 (Cth)) of Geosurv and each related body corporate of Geosurv may enforce those rights under these T&Cs as if it were a signatory to these T&Cs.
13.7 These T&Cs do not create a relationship of employment, trust, agency or partnership between the parties. These T&Cs and the other documents referred to in them constitute the entire agreement between the parties as to their subject matter.
13.8 The Client must not assign these T&Cs, or any rights under these T&Cs, without the prior consent of Geosurv.
13.9 Every notice, consent, approval or other communication given under these T&Cs must be in writing and addressed to the relevant party and delivered, by prepaid registered mail or sent by facsimile or email to the relevant party at the address provided in these T&Cs or such other address provided by the party.
- Defined terms
In these T&Cs:
(a) Agreed Fees means the fees payable for the Services, specified in the Quote.
(b) Approved Purpose means the use of the Survey Report for the purposes of a Development Approval Application or Property Condition Report, as specified in the Quote.
(c) Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth).
(d) Claim means any action, suit, claim, demand, cost, notice, proceeding, litigation, investigation, judgment, damage, loss, liability or expense (including damage to property, plant or equipment) from any cause whatsoever (including negligence) arising in connection with these T&Cs or the supply, failure or supply or use of the Services.
(e) Client means the person named as the customer for the Services, including on any tax invoice or Quote.
(f) Consequential Loss means any loss which cannot reasonably be considered to arise naturally from the relevant breach or circumstances giving rise to the loss, loss which could not reasonably have been in the contemplation of the parties as the probable result of the relevant breach of the circumstances giving rise to the loss at the parties became bound by these T&Cs and any loss of revenue, profit, business (including loss or reduction of goodwill) or expected savings, opportunity costs, damage to reputation and loss or corruption of data.
(g) Contract Trigger Event is defined in clause 1.
(h) Development Approval Application means an application to a local government (as a planning authority) for a planning approval or building licence in respect of the Inspected Property.
(i) Force Majeure Event means a strike, lock out or other industrial dispute, breakdown of systems or network access, delay by suppliers or contractors in delivering goods or services, flood, fire, earthquake, act of God, explosion or accident and any other matter, occurrence or event beyond the reasonable control of Geosurv.
(j) Inspected Property means a property the subject of an Inspection.
(k) Inspection means an examination by Geosurv’s personnel of a property identified in the Quote, for purposes of Geosurv providing the Services.
(l) Intellectual Property Rights means all intellectual property rights (whether registered or unregistered) including any of the following:
(i) inventions, discoveries and novel designs;
(ii) copyright (including future copyright) in literary works, artistic works, or other subject matter in which copyright subsists and may in the future subsist;
(iii) confidential information, trade secrets and knowhow; or
(iv) trade and service marks.
(m) Paid Fees means the aggregate of all amounts (excluding GST) actually paid by the Client in respect of the Services which are the subject of a Claim.
(n) Property Condition Report means a Survey Report that describes the structural or other physical conditions of an Inspected Property, but excluding a report to be used as part of a Development Approval Application (as specified in the Quote).
(o) Quote means the quotation, letter or other document setting out Geosurv’s express offer to perform Services for the Client, to which these T&Cs are attached by Geosurv.
(p) Services means the performance of an Inspection and the preparation and delivery of a Survey Report, further details of which are contained in the Quote.
(q) Services Agreement is defined in clause 2.
(r) Survey Report means a report prepared by Geosurv that documents Geosurv’s findings from the Inspection and which can be used for (or in support of, as applicable) the Approved Purpose.
(s) A reference to a statute or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them, a reference to “including” (or similar terms) means “including without limitation”, and headings are for convenience only and do not affect interpretation.