Enrolment Terms
GREENCAP GENERAL TERMS & CONDITIONS OF ENGAGEMENT (“TERMS”) These Terms apply to services carried out by the Company and should be read in conjunction with the Proposal. Unless agreed in writing by the Company, these Terms will apply to the exclusion of any inconsistent terms and conditions which may appear on any order form or other document issued by the Client. For the avoidance of doubt, any subsequent terms provided by the Client are excluded and any acceptance or counter offer by the Client of these Terms will be deemed to be an acceptance of these Terms. These Terms will apply to any variations to the scope of the Services which may be agreed (verbally or in writing) by the Parties or ordered (verbally or in writing) by the Client and to any supplementary services which may be agreed (verbally or in writing) by the Parties. The Client will be deemed to have accepted these Terms when the Client signs the Proposal (where indicated) or when the Company commences the Services at the request (written or otherwise) of the Client.
1 DEFINITIONS
In these Terms:
“Claim” means, in relation to any person, a damage, loss, cost, expense or liability incurred by the person or a claim, demand, action, proceeding or judgement made against the person, however arising, whether in contract, tort (including but not limited to negligence), equity, product liability, under any warranty or indemnity, by operation of statute or otherwise, and whether present or future, fixed or unascertained and actual or contingent;
“Client” means the client to which the Company will provide the Services as set out in the Proposal;
“Company” means Greencap or the Greencap subsidiary providing the Services as set out in the Proposal;
“Confidential Information” means any information obtained by one party concerning the other party or its business activities and that:
1.1 by its nature is confidential;
1.2 is designated by the disclosing party as confidential; or
1.3 the recipient knows or ought to know is confidential; and
1.4 includes details of the Proposal, including the Fee, but excludes information that:
1.4.1 is publicly available, except as a result of a breach of these Terms; or
1.4.2 was disclosed to the recipient by a third party who was not under a duty of confidentiality in relation to that disclosure;
“Consequential Loss” includes loss of profit, loss of revenue, loss of production, loss of or loss of use of any plant or facility, business interruption, loss of business opportunity or business contract (in each case whether direct or indirect) or any indirect, consequential, special, contingent or penal damage or loss;
“End Date” means the date upon which the Services must be completed as specified in the Proposal (if any);
“Fee” means the fee(s) payable by the Client to the Company for the Services as set out in the Proposal;
“Force Majeure Event” includes earthquake, flood, landslide, fire, explosion, war, invasion, act of foreign enemies, hostilities, civil war, rebellion, revolution, insurrection, military or usurped power, martial law or confiscation by order or any government or other authority, change in Law, strikes, lockouts, labour difficulties, rationing or unavailability of essential equipment, labour or supplies and disruption or unavailability of utilities and services which are beyond a party’s control.
“Greencap” means Greencap Pty Ltd (ACN 006 318 010);
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended, superseded or replaced from time to time;
“Insolvency Event” means any of the following:
1.5 the threatened or actual appointment of a voluntary administrator, liquidator, provisional liquidator, receiver, receiver and manager, controller, trustee in bankruptcy, administrator or other person of similar office, including any application to a court for such an appointment;
1.6 entry into or proposing an arrangement or compromise for the benefit of creditors;
1.7 the levy or enforcement of a writ of execution, order or judgment;
1.8 becoming unable to pay debts as and when they fall due for payment;
1.9 the taking of possession or control of any asset by a person under an encumbrance; or
1.10 failing to satisfy or to apply to have set aside a statutory demand, a bankruptcy notice or other similar form of statutory notice within the time specified in the demand or notice;
“Intellectual Property” means all intellectual property rights including, without limitation:
1.11 patents, copyright (including future copyright), registered designs, rights in circuit layouts, trademarks, inventions, secret processes, discoveries and improvement and modifications of any kind;
1.12 the right to have Confidential Information kept confidential; and
1.13 any application or right to apply for registration of any of the rights defined in this clause;
“Law” includes all legislation, statutes, enactments, regulations, standards, by-laws, treaties, ordinances, equity and other such unwritten laws applicable to any act, omission, conduct, matter or thing for any reason;
“Parties” means the Company and the Client;
“Proposal” means the proposal to which these Terms are attached which sets out the Services and the Fee;
“Services” means the services to be provided by the Company as set out in the Proposal as varied in accordance with these Terms; and
“Tax Invoice” means the invoice issued by the Company in accordance with these Terms and has the respective meaning ascribed to it in the GST Act.
2 SERVICES
2.1 The Company will provide the Services to the Client at the:
2.1.1 times;
2.1.2 location;
2.1.3 frequency;
2.1.4 quantity; and
2.1.5 manner, as specified in the Proposal or otherwise agreed (verbally or in writing) by the Parties.
2.2 The Company will perform the Services in a competent and professional manner and in accordance with these Terms.
2.3 The Services may be varied as agreed (verbally or in writing) between the Parties.
2.4 The Client will ensure that the Company has access to all sites and buildings as required by or necessary for the Company to undertake the Services. Notwithstanding any other provision in these Terms, the Company will have no liability to the Client or any third party to the extent that the performance of the Services is not able to be undertaken (in whole or in part) due to access to any relevant sites or buildings being prevented or delayed due to the Client or their respective employees or contractors expressing safety or health concerns associated with such access.
3 FEE
3.1 The Client will pay the Company the Fee in consideration of the Company providing the Services.
3.2 The Company may vary the Fee by notice to the Client if:
3.2.1 the Company undertakes additional Services at the request (written or verbal) by the Client;
3.2.2 the Company undertakes additional work or services which are required as a result of unexpected or undisclosed conditions encountered by the Company whilst providing the Services;
3.2.3 the Services are varied by agreement of the Parties in accordance with clause 2.3 of these Terms; and
3.2.4 a change of Law or technological advance occurs during the provision of the Services which (in the Company’s reasonable opinion) results in increased cost to the Company in the provision of the Services.
3.3 If the Proposal is not accepted by the Client within the validity period of the Proposal, the Company may (in its sole discretion) vary the Fees set out in the Proposal at any time prior to acceptance of the Proposal by notice in writing to the Client.
3.4 The Client will pay all Tax Invoices without deduction or set off within thirty (30) days of the date of the relevant Invoice.
3.5 The Company may charge and the Client must pay interest on all amounts not paid by the Client on the payment due date at an interest rate of two percent (2%) per annum. Interest will be calculated daily and may be capitalised monthly until full payment has been made by the Client.
3.6 Allowance to the Client of additional time to pay the Fee will not constitute a waiver by the Company of any of these Terms.
3.7 In the event of non-payment of the Fee in accordance with these Terms, the Client will pay all reasonable collection expenses, legal costs and any other expenses incurred by the Company in the event of non-payment.
3.8 The Company may cease the Services immediately without notice to the Client if the Client fails to pay any Tax Invoice in accordance with these Terms. The Company will not be obliged to recommence the Services until such time as the overdue amount is paid in full to the Company.
3.9 If an amount of GST is payable on a supply under these Terms:
3.9.1 the recipient of the supply must pay, in addition to the other consideration payable or to be provided for the supply, an amount equal to the GST payable on the supply; and
3.9.2 the recipient must pay the additional amount to the supplier at the same time as the other consideration. However the recipient need not pay the additional amount until the supplier gives the recipient a tax invoice (except where the recipient is required to issue the tax invoice).
3.10 If for any reason (including, without limitation, the occurrence of an adjustment event) the amount of GST payable on a supply varies from the GST amount paid to the supplier, the parties will account to each other for the difference. If the recipient is required to pay an additional amount under this clause, and the reason an additional amount is payable is because of the occurrence of an adjustment event, the recipient needs not pay the additional amount until the supplier gives the recipient an adjustment note (except where the recipient is required to issue the adjustment note).
3.11 If an amount paid by the supplier as and for GST under these Terms is overpaid, and Division 142 of the GST Act applies to that amount, then the amount is not recoverable from the supplier unless the supplier can recover that amount from the Commissioner after taking all reasonable steps to do so.
3.12 Clause 3.9 and 3.10 do not apply to the extent that the GST on the supply is payable by the recipient under Division 83 or Division 84 of the GST Act.
3.13 If any party is entitled to payment of any costs or expenses by way of reimbursement or indemnity, the claim must exclude any amount for which that party (or representative member if the party is a member of a GST group) may obtain an input tax credit.
3.14 Unless clearly indicated to the contrary, all amounts referred to in these Terms, other than in clauses 3.9 to 3.13 (inclusive), are GST exclusive.
3.15 Unless clearly indicated to the contrary, “GST” and other terms used in this clause (and in other provisions of this Agreement referable to GST) have the meanings given to those terms by the GST Act.
3.16 This clause will continue to apply after expiration or termination of these Terms.
4 PRICE REVIEW
4.1 Subject to clause 4.3, the Fee is fixed for the first Contract Year.
4.2 Subject to clause 4.1, in each Contract Year, the Fee will be increased or decreased by notice in writing to the Client to reflect movements in the average of the "Average Weekly Total Earnings - Australia" as published by the Australian Bureau of Statistics in its publication Catalogue No 6302.0 in Table 1 in respect of the previous Contract Year ("Annual Price Review Notice"). The Company will not issue more than one Annual Price Review Notice in respect of each Contract Year. Annual Price Review Notices issued in respect of:
4.2.1 the current Contract Year: will take effect 30 days from the date of issue; and
4.2.2 a future Contract Year: will take effect on the later of 30 days from the date of issue, or the first day of that future Contract Year, ("Effective Date").
4.3 The Company is entitled, by written notice to the Client, to increase or decrease the Fee where it forms the view (acting reasonably, and having regard to a number of factors, including but not limited to fluctuations in foreign exchange rates, labour costs, duties, tariffs or legislative changes) that the provision of Services to the Client has become commercially unviable to the Company ("Extraordinary Price Review Notice").
4.4 The Client shall be deemed to have accepted the Company’s Extraordinary Price Review Notice unless it provides notice in writing of its non-acceptance within 30 days of the date of the Extraordinary Price Review Notice. All accepted (or deemed accepted) Extraordinary Price Review Notices will take effect 40 days after the date of the Extraordinary Price Review Notice.
4.5 In this clause, "Contract Year" means each 12 month period commencing on the date on which the Services are first provided by the Company, and each anniversary thereof.
5. INDEMNITY AND LIABILITY
5.1 The Company indemnifies the Client against any liability, loss, damage, costs or expense incurred or suffered by the Client arising from any negligent act or omission of the Company, or an officer, employee, or agent of the Company in connection with the provision of the Services, except to the extent that any such losses are caused or contributed to by the Client or any other person.
5.2 The Client is liable for and must indemnify the Company in respect of any Claim which the Company may suffer or incur arising out of:
5.2.1 a breach of these Terms by the Client;
5.2.2 an act or omission of the Client; and
5.2.3 a breach of the Law by the Client, except, in each case, to the extent that any such Claim is caused or contributed to by the negligent act or omission of the Company.
5.3 Notwithstanding any other provision of these Terms, to the maximum extent permitted by law:
5.3.1 neither party will be liable to the other party for or in connection with any Claim for Consequential Loss;
5.3.2 the Company is not liable for any Claim which relates directly or indirectly to:
5.3.2.1 the Company following accepted guidelines in accordance with the Law when supplying the Services to the Client;
5.3.2.2 a change in Law (which was applicable during the period in which the Company provided the Services) or technological advance if such change in Law or technological advance occurred after the completion of the Services by the Company; or
5.3.2.3 the failure of the Client to comply with any applicable Laws or recommendations provided by the Company or any other negligent or wrongful act or omission of the Client;
5.3.3 the Company’s liability in respect of defective Services is limited to the re-supply of the defective Services to the Client or refund of the Fee as set out in clause 6 . 1 below; and
5.3.4 subject to clause 5.3.2, the maximum cumulative liability of the Company to the Client in respect of, in connection with and in relation to any and all Claims arising out of or in connection with these Terms or the Services is an amount equal to one hundred percent (100%) of the Fee payable by the Client to the Company under the Proposal.
6. DEFECTIVE SERVICES
6.1 In the event that the Client determines (acting reasonably) that the Services or any part of the Services do not comply with description of the Services set out in the Proposal or are defective, the Company (in its absolute discretion) will either re-supply the defective Services at no cost to the Client or refund the Fee (or a portion of the Fee) which relates to defective Services.
7. REPORTS
7.1 Where the Services include the provision of a report to the Client by the Company, the Client acknowledges and agrees that:
7.1.1 the report has been prepared for the purpose set out in the Proposal and/or report;
7.1.2 unless otherwise specified in the Proposal or the report, the report has been prepared for the sole use of the Client;
7.1.3 the Client may only use the report for the purpose for which it was prepared;
7.1.4 the Client cannot disclose the report or permit the report to be disclosed to any other person without the prior written consent of the Company;
7.1.5 the Client must not permit any other person to use or rely on the report without the prior written consent of the Company; and
7.1.6 the Company is not responsible to the Client or any other person for the implementation of any recommendation or preferred course of action identified or referred to in the report or otherwise in the course of providing the Services.
7.2 The Company may issue preliminary findings or reports when undertaking the Services which require verification (either by the Company or by third parties). Where the Company issues preliminary findings or reports to the Client, the Client acknowledges and agrees that:
7.2.1 the Client can only rely on the preliminary findings or reports to the extent specified in those findings or reports; and
7.2.2 the decision to undertake further investigative activities as recommended by the Company rests solely with the Client and the Company accepts no responsibility in that regard.
8. TRAINING
8.1 In the event that the Services include training, upon arrival at the training venue at the agreed time, the Company representative will attempt to commence the training session on time. If there are no attendees present, the Company will do all that is reasonably possible to contact a responsible representative of the Client or its agent at the venue to assemble the required attendees. If the session is not able to commence within 30 minutes of the designated time, the Company responsibility for delivery of the training Services will be deemed to have been fulfilled.
8.2 In the event that the representative of the Company conducting the training Services is delayed in his or her arrival at the training venue for any reason or is unable to attend at the designated venue at the designated time, the Company will contact the Client or its agent as soon as possible and if necessary, the session will be rescheduled at no further Fee to the Client.
8.3 The training Services will not be postponed in the event of inclement weather.
8.4 In the event that the Services include training and the Client or its agent cancels or varies the agreed date on which training is to be provided by the Company (“Training Date”) and such cancellation or variation takes place within five (5) business days of the scheduled Training Date, the Company may charge the Client a cancellation fee which is equivalent to one hundred percent (100%) of the fee payable by the Client in respect of that training.
9. TERMINATION
9.1 The Company may terminate these Terms at any time and for any reason by giving 30 days written notice to the Client.
9.2 If either party breaches these Terms (“Defaulting Party”) and the breach can be remedied, the other party (“Non-Defaulting Party”) may give the Defaulting Party no less than 30 days written notice to remedy that breach. If the breach is not remedied within the period stipulated in the notice, the Non Defaulting Party may give the Defaulting Party a further written notice immediately terminating these Terms.
9.3 Either party may terminate these Terms by written notice to the other party immediately upon any of the following events:
9.3.1 if the other party commits a serious breach of these Terms which cannot be remedied;
9.3.2 if the other party ceases to do business as a going concern;
9.3.3 if an Insolvency Event occurs in relation to the other party; or
9.3.4 if the other party commits a serious criminal offence.
9.4 If these Terms are terminated pursuant to clauses 9.1, 9.2 or 9.3:
9.4.1 the Company will not be liable to the Client for any Claims by the Client relating to the termination of these Terms by the Company, including any payment for losses or expenses incurred by the Client;
9.4.2 the Client will pay the Company all Fees relating to the Services provided by the Company up to the date of termination of these Terms; and
9.4.3 in the event that the Services have not been completed by the Company as at the date of termination of these Terms, the Client acknowledges and agrees that it cannot use or rely upon any interim reports, results or findings issued by the Company prior to the date of termination.
10. INTELLECTUAL PROPERTY
10.1 The Company owns all right, title and interest in Intellectual Property developed, owned or acquired by the Company prior to the commencement of the Services, including any modification or improvement on that Intellectual Property.
10.2 The Client owns all right, title and interest in Intellectual Property developed, owned or acquired by the Client prior to the commencement of the Services.
10.3 The Client agrees that the Company owns all right, title and interest in Intellectual Property made, written or developed by the Company in the course of and for the purpose of providing the Services in accordance with these Terms.
10.4 To enable the Client to enjoy the benefit or end result of the Services, the Company grants to the Client, on full payment of the applicable Fee, a non-exclusive, perpetual, irrevocable, worldwide, royalty free licence (with the right to grant sub-licences) to use, solely for that purpose, such of the Company’s Intellectual Property as is strictly necessary to enjoy that benefit or end result.
10.5 If necessary to enable the Company to undertake the Services, the Client grants to the Company a nonexclusive, perpetual, irrevocable, worldwide, royalty free licence to use, solely for that purpose, such of the Client’s Intellectual Property as is strictly necessary to undertake the Services.
11. NON-SOLICITATION
11.1 During the Term and for a period of twelve (12) months following the termination or expiration of these Terms, the Client will not, without the consent of the Company, solicit, induce or otherwise attempt to persuade any employee, consultant or contractor of the Company to cease working for the Company and/or work for the Client.
11.2 During the Term and for a period of twelve (12) months following the termination or expiration of these Terms, the Company will not, without the consent of the Client, solicit, induce or otherwise attempt to persuade any employee, consultant or contractor of the Client to cease working for the Client and/or work for the Company.
12. CONFIDENTIALITY
12.1 Each party owns all of its Confidential Information.
12.2 During these Terms and after termination of these Terms, each party can use or disclose the other party’s Confidential Information only:
12.2.1 to perform the Services or obtain the benefit of the Services;
12.2.2 to professional advisors on a confidential basis for the purpose of obtaining advice;
12.2.3 if the disclosing party has consented in writing; or
12.2.4 if required by Law.
12.3 Upon the earlier of:
12.3.1 the termination or expiry of these Terms; or
12.3.2 a demand from the disclosing party, the recipient of Confidential Information must:
12.3.3 at the disclosing party’s discretion, deliver to the disclosing party or destroy all Confidential Information in the recipient’s possession or under its control; and
12.3.4 delete all Confidential Information held electronically in any medium in the recipient’s possession or under its control.
13. DISPUTE RESOLUTION
13.1 Any dispute or agreement in relation to or in connection with these Terms or the Services in any matter (“Dispute”) is to be resolved in accordance with the procedure provided in clause 13.
13.2 In the event of a Dispute, the party seeking to have it resolved must issue to the other Parties a notice setting out all details relevant to the Dispute (“a Dispute Notice”).
13.3 Within fourteen (14) days of receipt of a Dispute Notice, the senior management of the Parties to the Dispute respectively must meet in Melbourne, Victoria (or such other place agreed by the Parties) to negotiate resolution of the Dispute unless the Parties agree to hold such discussions by teleconference or via other electronic means. The Parties agree that those negotiations must be conducted in good faith.
13.4 In the event that the Dispute is not resolved in accordance with clause 13.3, either party will be entitled to take the matter to litigation in the courts of Victoria.
13.5 Nothing contained in clause 13 will prevent a party from seeking urgent interlocutory relief.
14. INSURANCE
14.1 The Client must at all relevant times effect and maintain, at its own cost, with reputable insurers and on terms consistent with prudent risk management:
14.1.1 a public and products liability insurance policy that covers all Claims made in consequence of or in respect of bodily injury, death or damage to property and that provides coverage for an amount of not less than $20 million for each and every Claim;
14.1.2 workers' compensation insurance in the name of the Client covering all liabilities, whether arising under statute, common law or civil law, in relation to the death of, or injury to, employees or any person deemed to be an employee of the Client;
14.1.3 insurance that provides cover against loss or damage resulting from any loss of, damage to, theft of, or destruction by any cause of any property of the Client's for which the Company is responsible; and
14.1.4 a motor vehicle policy in respect of liability to third parties for personal injury, death, disease or illness, or liability to third parties for loss of or damage to property.
15. FORCE MAJEURE
???????15.1 A party will not be liable for its inability to perform its obligations under these Terms as a result of a Force Majeure Event. If a Force Majeure Event occurs, the party suffering it will notify the other party of the occurrence and expected duration of that event. The party suffering the Force Majeure Event must use all reasonable endeavours to prevent the force majeure occurrence.
15.2 If a Force Majeure Event renders performance of these Terms impossible for a continuous period of at least thirty (30) days, either party may, by notice to the other, terminate these Terms.
16. ANTI-BRIBERY
Each Party Will:
16.1 at all times comply with all applicable Laws and codes relating to anti-bribery and improper payments including but not limited to the Criminal Code Act 1995 (Cth) (Australia), the Foreign Corrupt Practices Act 1977 (United States), and the Bribery Act 2010 (United Kingdom) (“Relevant Requirements”);
16.2 have and maintain in place throughout the term of this engagement its own policies and procedures, including adequate procedures under the Relevant Requirements (“Policies and Procedures”), to ensure compliance with the Relevant Requirements, and will enforce them where appropriate; and
16.3 endeavour to procure the observance and performance of the Relevant Requirements by all persons performing services or providing goods in connection with this engagement on behalf of it or under its supervision or control in accordance with its Policies and Procedures.
17 GENERAL
17.1 Severability Every provision of these Terms will be deemed severable as far as possible from the other provisions of these Terms. If any provision is found to be void, illegal or unenforceable for any reason, it will be deemed to be severed and omitted from these Terms. These Terms, with the offending provision severed and omitted and with any consequential amendment if necessary, will otherwise remain in full force.
17.2 Entire Agreement
17.2.1 These Terms and the Proposal contain the entire agreement between the Parties in respect of the subject matter of these Terms and the Proposal.
17.2.2 These Terms supersede any prior agreement or understanding (if any) between the Parties in relation to the subject matter of these Terms or the Proposal.
17.3 Amendments Any amendment to these Terms must be made in writing executed by the Parties.
17.4 Assignment The Company may assign its interest under these Terms at any time. The Client can only assign its interest under these Terms with the prior written consent of the Company, which must not be unreasonably withheld.
17.5 Relationship of Parties The Parties are independent contractors. The Parties are not principal and agent, partners, trustee and beneficiary or employer and employee.
17.6 Governing Law These Terms will be construed according to the laws of Victoria and the Parties submit themselves to the nonexclusive jurisdiction of the courts of Victoria and any competent appellate courts.
17.7 Reliance on Information Provided By Others The Client acknowledges and agrees that the investigations will rely on information provided to the Company by the Client or other third parties. The Company makes no representation or warranty regarding the completeness or accuracy of any descriptions or conclusions based on information supplied to it by the Client, its employees or other third parties during provision of the Services. The Client releases and indemnifies the Company from and against all Claims arising from errors, omissions or inaccuracies in documents or other information provided to the Company by the Client, its employees or other third parties.
17.8 Limitation of Reports All reports are prepared for the Client in general accordance with industry recognised standards and procedures recognised at the time of the work. Each report presents the results of the assessment based on the quoted Scope of Services (unless otherwise agreed in writing) for the specific purposes of the commission. No warranties expressed or implied are offered or provided to any third parties and no liability will be accepted for use of any report by any third parties. Information provided by third parties was assumed to be correct and complete. The Company does not assume any liability for misrepresentation of information by any party or for matters not visible, accessible or present on the subject property during any site works conducted during the time of the work. Each report should be read in full. No responsibility is accepted for use of any part of a report in any other context or for any other purpose or by third parties. Opinions and judgments expressed in any report are based on the Company’s understanding of current regulatory standards and should not be construed as legal opinions.
17.9 Waiver The Client releases and indemnifies the Company in respect of any Claims arising from:
17.9.1 alleged damage to building surfaces caused by the Services;
17.9.2 additional costs for specialised access requirements or isolations required for the investigation; and
17.9.3 hazardous building materials in areas not accessed or accessible by the Company.
18 SPECIAL TERMS AND CONDITIONS – ASBESTOS AND HAZARDOUS MATERIALS INVESTIGATIONS
The following special conditions apply if the Services relate to or include asbestos and/or hazardous materials investigation.
18.1 Scope of Works The Client acknowledges and agrees that the Services relate only to the identification of hazardous materials (as specified in the Proposal) used in the construction of the building(s) and does not include the identification of dangerous goods or hazardous substances in the form of chemicals used, stored or manufactured within the building, plant or site. Hazardous materials covered by the investigation will include asbestos containing materials and, where specified in the Proposal, hazardous building materials. Hazardous building materials include synthetic mineral fibre (SMF) insulation materials; polychlorinated bi-phenyl (PCB) oil capacitors and indicative check of selected lead-painted surfaces.
18.2 Sampling Program The Client acknowledges and agrees that:
18.2.1 while the investigation undertaken by the Company will attempt to locate the hazardous materials (as specified in the Proposal) within the site, the Company’s investigation is predominantly a visual inspection and only a limited sampling program will be conducted by the Company.
18.2.2 the Company will only collect representative samples of suspected hazardous building materials for analysis. Other hazardous building materials of similar appearance may be assumed by the Company to have a similar composition.
18.2.3 only minor destructive investigation and sampling techniques will be employed to gain access to building or site areas; and
18.2.4 without substantial demolition of the building(s), it may not be possible for the Company to detect every source of hazardous materials in the building(s).
18.3 Latent Conditions and Inaccessible Areas
18.3.1 It is acknowledged and agreed by the Client that only those hazardous building materials that are physically accessible can be located and identified by the Company. Therefore, it is possible that hazardous building materials, which may be concealed within inaccessible areas/voids, and behind equipment/fittings may not be identified during the investigation undertaken by the Company. Such inaccessible areas fall into a number of categories, including but not restricted to:
18.3.1.1 Locations behind locked doors.
18.3.1.2 Inset set ceilings or wall cavities.
18.3.1.3 Those areas accessible only by dismantling equipment or performing minor localised demolition works
18.3.1.4 Service shafts, ducts, etc, concealed within the building structure.
18.3.1.5 Energised services, gas, electrical, pressurised vessel and chemical lines.
18.3.1.6 Voids or internal areas of machinery, plant, equipment, air-conditioning ducts etc.
18.3.1.7 Totally inaccessible areas such as voids and cavities created and intimately concealed within the building structure. These voids are only accessible during major demolition works.
18.3.1.8 Height restricted areas.
18.3.1.9 Areas deemed unsafe or hazardous at time of audit.
18.3.2 It is acknowledged and agreed by the Client that where an investigator has a reasonable belief that hazardous building based products or materials may be present inside inaccessible spaces and voids, then those spaces will be deemed to contain hazardous building materials.
18.3.3 These locations will require further investigation prior to opening nominated specific areas by the investigator at additional cost to the Client.
18.4 Practicability of Investigation
18.4.1 It is acknowledged and agreed by the Client that, in addition to areas that are not accessible, the possible presence of hazardous building materials may not be assessed because it is not considered practicable by the Company as:
18.4.1.1 it would require unnecessary dismantling of equipment; and/or
18.4.1.2 it was considered disruptive to the normal operations of the building or site; and/or
18.4.1.3 it may have caused unnecessary damage to equipment, furnishings or surfaces; and/or
18.4.1.4 the hazardous building material was not considered to represent a significant exposure risk; and/or
18.4.1.5 it was clearly unsafe for the investigator to gain access to the height-restricted space, restricted sub-floor or hazardous work space; and/or
18.4.1.6 the time taken to determine the presence of the hazardous building material was considered prohibitive.
18.4.2 Access restriction may be due to physical solid barrier, occupancy of the tenancy or other circumstances listed above.
18.5 Obligation of Client to Inform Company
18.5.1 The Client must furnish or cause to be furnished to the Company all documents and information known to the Client that relate to the identity, locations, quantity, nature or characteristics of any hazardous building materials or suspected hazardous building materials, on or within the building or site, or have previously existed. Where this information is known to exist, the Client will advise the Company prior to commencement of the Services by the Company.
18.5.2 Key documentation includes former records of asbestos abatement activities, asbestos audit/surveys or clearance certification reports.
18.5.3 Where no information is provided, the Company will assume that the Client is not aware of or in possession of any information relating to existing or historic hazardous materials on site. The Client represents and warrants that the Client has informed the Company of any hazardous material which it knows or has reason to believe exists on the site.
18.6 Settled Dust and Mastics It is acknowledged and agreed by the Client that unless specifically required by the Client, settled dust and surface swab samples will not be taken as part of the investigation by the Company in order to check for asbestos residue or fibres. Similarly, testing of caulking and mastic jointing compounds will not be undertaken throughout the site.
19 SPECIAL TERMS AND CONDITIONS FOR ENVIRONMENTAL OR STRUCTURAL INVESTIGATIONS
The following special conditions apply if the Services relate to or include any environmental or structural investigation (including any asbestos and/or hazardous materials investigation).
19.1 Sampling Risks
19.1.1 The Client acknowledges and agrees that:
a) professional judgment has been used by the Company to interpret the data obtained from site sampling and subsequent laboratory testing in order to characterise contamination that is present on site;
b) even a comprehensive sampling and testing program, implemented with the appropriate equipment and experienced personnel under the direction of a trained professional who functions in accordance with a professional standard of care, may fail to detect certain conditions because they are hidden;
c) the extent of soil sampling and analysis has been targeted towards areas where contamination is considered to be most likely based on site history and visual assessment;
d) the methods adopted by the Company are in accordance with recognised industry standards;
e) investigations may not identify contamination that occurs in unexpected locations or from unexplained sources;
f) soil contamination can be expected to be non-homogenous across the stratified soils where present on site and the concentrations of contaminants may vary significantly within areas where the contamination has occurred. As such, results should be regarded as indicative only;
g) contaminant movement within the soil and within groundwater can follow paths of high permeability and it is possible that sampling will not have intersected these preferential pathways;
h) sampling of soil or groundwater may result in contamination of certain sub-surface areas, as when a probe or boring device moves through a contaminated area, linking it to an aquifer or other water body not previously contaminated. The Company will use reasonable endeavours to minimise and eliminate such cross contamination during the conduct of any sub-surface investigation.
19.1.2 The Client releases and indemnifies the Company in respect of all Claims which may arise from the sampling risks identified at clause 19.1.1 above and as a result of alleged cross contamination caused by sampling undertaken by the Company.
19.2 Production of Drilling By-Products Where drill cuttings and drilling fluids are produced as a by-product of sampling sub-surface conditions, these will remain the property of the Client. The Client acknowledges and agrees that drill cuttings and drilling fluids should be handled as if contaminated. The Company will advise the Client of the presence of such materials and will take reasonable measures to label and containerise such materials for the Client. The Client acknowledges and agrees that it is the Client’s responsibility to ensure such materials are disposed of in accordance with relevant Laws.
19.3 Location of Hazardous Material or Suspected Hazardous Materials The Client must provide or cause to be provided to the Company any previous reports or information which may provide information on hazardous materials or suspected hazardous materials on site. Where this information is known to exist, the Client will advise the Company prior to commencement of the Services by the Company. Where no information is provided, the Company will assume that the Client is not aware of or in possession of any information relating to existing or historic hazardous materials on site. The Client represents and warrants that the Client has informed the Company of any hazardous material which it knows or has reason to believe exists on the site.