PART 1 - GENERAL MATTERS AND DEFINITIONS

 

1.1 These Terms of Engagement shall be read in conjunction with the Proposal Letter and the Letter of Engagement. Together these documents shall form the Agreement for Services between Salman Maktab and the Client.

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1.2 'The Proposal Letter' means the letters and other documents prepared by Salman Maktab and submitted to the Client to describe the scope of works being undertaken, the estimate of the fee (unless an agreed fixed fee is provided) and, if applicable, the estimate of the expenses that will be incurred.

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1.3 The 'Agreement' means the entire contractual Agreement between the Parties.

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1.4 The ‘Client’ shall be defined as the Party disclosed in the Letter of Engagement, and that Party shall be the Party to which invoices shall be sent and that Party shall be responsible for the payment of all invoices. No work shall commence until a signed Letter of Engagement has been returned to Salman Maktab.

 

PART 2 - ROLE OF SALMAN MAKTAB, SERVICES AND TERM

 

2.1 Salman Maktab shall provide to the Client the services described in the Proposal Letter which forms part of the Agreement (Services).

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2.2 In performing the Services Salman Maktab shall provide the Services to the Client and perform its other obligations under this Agreement:

      (a) in a timely, efficient, proper and competent manner using reasonable care, skill and diligence;

      (b) in accordance with industry best practice, all applicable Laws, and the reasonable directions

           (consistent with the terms and conditions of this Agreement) of the Client; and

      (c) at such places and between such hours as are set out in this Agreement or as reasonably required

           by the Client.

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2.3 If the Client proposes a variation to the scope of the Services by issuing to Salman Maktab a written notice to that effect, Salman Maktab shall respond with a proposal for implementation of the variation including a price quotation and must negotiate in good faith to agree on the price and other terms applicable to the variation.

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2.4 If the Parties reach a written agreement on the price and other terms for performance of the variation, the scope of Services, price and terms under this Agreement will be varied accordingly and Salman Maktab shall perform the Services as varied.

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2.5 This Agreement may be extended for a further period by mutual written agreement of the Client and Salman Maktab.

 

PART 3 - ROLE OF THE CLIENT AND THE CLIENT’S REPRESENTATIVE

 

3.1 The Client may appoint a person to act as their representative and give notice to Salman Maktab of the name of the person so appointed. The Client agrees that the person appointed shall have authority to act on behalf of the Client for all purposes in connection with the Agreement.

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3.2 The Client and/or the Client’s Representative shall as soon as practicable make available to Salman Maktab all information, documents and other particulars relating to the Client's requirements for the Project.

 

PART 4 - PAYMENT TO SALMAN MAKTAB

 

4.1 Unless otherwise agreed all work shall be invoiced on a monthly basis for the Project and all invoices shall be due and payable within 7 days of invoice unless otherwise set out in the Proposal Letter.

 

4.2 Unless a dispute is raised within 7 days of the date of the invoice the invoice shall be deemed to be correct and payable.  Any adjustment made to an invoice shall be deemed to be as of the date of the original invoice.         

 

4.3 If the Client is in breach of any obligation to make a payment to Salman Maktab, the license referred to in Clause 6.2 is automatically revoked and the Client shall return all documents and copies to Salman Maktab within seven days of receiving a notice of revocation.

 

PART 5 - SCOPE OF LIABILITY

 

5.1 The liability of Salman Maktab 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 those damages and losses which are directly caused by Salman Maktab.

 

5.2 The maximum liability of Salman Maktab to the Client arising out of the performance or non-performance of the Services, whether under the law of contract, tort or otherwise, shall either be $1,000,000, or the amount insurance underwriter deems adequate, or unless the Parties specifically agree otherwise in writing.

 

5.3 Notwithstanding any other clause of this Agreement, neither Party shall be liable to the other for any form of indirect, special, or consequential loss, or loss of profit.

 

PART 6 – COPYRIGHT AND USE OF DOCUMENTS

 

6.1 Copyright in all drawings, reports, calculations, specifications, and other documents produced by Salman Maktab in execution of the agreed Scope of Works shall remain the property of Salman Maktab. The written Agreement of Salman Maktab must be obtained before any assignment of copyright takes place.

 

6.2 The Client shall have a license to use the documents referred to in Clause 6.1 for the purpose of completing the Project. However, the Client shall not use or make copies of such documents in connection with any work other than work comprised in the Project unless express written approval is given in advance by Salman Maktab.             

 

PART 7 – DISPUTE RESOLUTION

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7.1 A Party claiming that a dispute (Dispute) has arisen under or in connection with this Agreement must notify the other Party in writing giving details of the Dispute (Notice). A Party to this Agreement must not commence court or arbitration proceedings relating to the Dispute unless that Party has participated in the dispute resolution procedures set out in this clause 7.

 

7.2 During the two (2) week period after a Notice is given under clause 7.1 (or any longer period agreed in writing between the Parties) the Parties' must negotiate in good faith to resolve the Dispute.

 

7.3 If the Parties fail to resolve the Dispute within the period specified under clause 7.2 the Parties must then participate in mediation in accordance with this clause 7.

 

7.4 If the Parties fail to resolve the Dispute within the period specified under clause 7.2 the Parties must within seven days thereafter agree on:

      (a) the procedures to be adopted in a mediation of the Dispute; and

      (b) the timetable for all the steps in those procedures; and

      (c) the identity and fees of the mediator.

 

7.5 If the Parties fail to agree the identity and fees of the mediator, the President of The Law Society of New South Wales will  be asked to appoint the mediator and determine the mediator’s fees and determine the proportion of those fees to be paid by each Party (to be in equal shares unless otherwise agreed by the Parties) and the Parties must mediate the Dispute with the appointed mediator:

      (a) with a genuine commitment to participate;

      (b) in accordance with the Mediation Guidelines of The Law Society of New South Wales; and

      (c) In accordance with any directions given by the appointed mediator.

 

7.6 While the procedure set out in this clause 7 is being followed, both Parties must continue to fulfil their obligations under this Agreement.

 

PART 8 - TERMINATION OF SERVICES

 

8.1 The Client may terminate their obligations under this Agreement:

      (a) In the event of a material breach by Salman Maktab of their obligations under the Agreement, which

           breach has not been rectified within 14 days of written notice by the Client of such breach, or longer

           as the Client may agree.

      (b) Upon giving Salman Maktab 30 days written notice of their intention to do so.

 

8.2 If the engagement of Salman Maktab is terminated for any reason other than for breach of this Agreement by Salman Maktab then Salman Maktab shall be entitled to pro rata payment for the Services carried out during the period up to and including the date of termination.

 

8.3 Salman Maktab may suspend or terminate their obligations under this Agreement:

      (a) In the event of monies payable to Salman Maktab being outstanding for more than 7 days.

      (b) In the event of a material breach by the Client of their obligations under the Agreement, which

           breach has not been rectified within 14 days of written notice by Salman Maktab of such breach, or

           longer as Salman Maktab may agree.

      (c) Upon giving the Client 30 days written notice of their intention to do so

 

PART 9 – EXPENSES, DISBURSEMENTS & THIRD PARTY SERVICES

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9.1 The Client must reimburse Salman Maktab for any expenses or disbursements which Salman Maktab pay for or are liable to pay to any third parties on behalf of the Client.

 

9.2 If the Agreement is terminated for any reason whatsoever, the Client must pay to Salman Maktab any third party costs and/or expenses incurred by Salman Maktab up to and including the date of termination.

 

9.3 Salman Maktab may also ask the Client to pay Salman Maktab in advance for the cost of any disbursements or expenses prior to those expenses being incurred. In that case, upon receipt of a Client payment, the Client authorises Salman Maktab to draw on the money paid for the payment of disbursements and expenses, as they become due.

 

9.4 Salman Maktab will inform the Client of these expenses and disbursements, as well as any other payments that are required to be made, as soon as is reasonably practicable.

 

9.5 If requested to do so by the Client, Salman Maktab will coordinate and facilitate any third party services and work as required. The Client acknowledges and agrees that Salman Maktab is not responsible for third party services and that Salman Maktab makes no representations or warranties regarding third party services.

 

9.6 The Client acknowledges and agrees that Salman Maktab is not responsible or liable for any content, services, work, deliverables, products or other materials produced or provided by any third party. In addition, Salman Maktab will not be responsible or liable, directly or indirectly, for any actual or alleged damage or loss caused by or in connection with use of or reliance on any third party services or materials. The Client unconditionally releases, indemnifies and holds harmless Salman Maktab from any and all claims and liabilities for any damage or loss, arising from or in connection with any third party services or materials.

 

PART 10 – GENERAL TERMS

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10.1 Waiver: No waiver will be effective unless it is in writing and signed by the Party against whom such waiver is claimed.

 

10.2 Entire Agreement: This Agreement constitutes the entire Agreement between the Parties and supersedes all prior representations and Agreements in connection with the services.

 

10.3 Severability: The whole or any part of any clause of this Agreement that is illegal or unenforceable will be severed and will not affect the continued operation of the remaining provisions of this Agreement.

 

10.4 Nature of Relationship: The Parties acknowledge and agree that the Salman Maktab provides the Services to the Client as an independent contractor. Nothing in this Agreement creates an agency, joint venture or partnership relationship between the Client and Salman Maktab.

 

10.5 Amendments/ Variation: Any amendment to this Agreement is only effective if made by mutual written Agreement of both Parties.

 

10.6 Survival:  The clauses of this Agreement relating to scope of liability (Part 5), copyright (Part 6) dispute resolution (Part 7) and expenses, disbursements & third party services (Part 9) survive the expiry or termination of this Agreement.

 

10.7 Governing law: This Agreement shall be governed by the laws of the state in which the Project is located, and the Parties submit to the non-exclusive jurisdiction of the courts in those jurisdictions.