Terms & Conditions.

Conditions for using this website 

This site contains information for the personal reference of users about Mersa Pty Ltd (Mersa) and the services it provides. This legal disclaimer contains the terms in which you may access the information provided by Mersa. By accessing and using any information provided on this site, you agree to be bound by these terms. 

While Mersa has used all reasonable efforts to ensure the information contained on this site is accurate and up to date changes in circumstances after the date of publication may impact on the accuracy of the information. Mersa does not give any warranty, make any representation, or accept responsibility for the site’s accuracy, reliability or completeness. Mersa may change and update the information at any time without notice to users. 

All information contained on this site and the images and other works displayed are the property of Mersa, or we have received express approval by the owners to use the content. Users of this site must not: 

• Distribute, modify, copy or otherwise reproduce in any way any of the material on this site without the express written permission of Mersa; and/or 

• Use the material on this site for any purpose other than as a source of information about Mersa and its services. 

Mersa terms of engagement 

1. The Client hereby appoints Mersa Pty Ltd (Mersa) to act as a consultant in respect of the Undertaking upon the terms and conditions of this Agreement. Mersa hereby accepts such appointment. 

2. Mersa shall perform the services in accordance with the Undertaking (the Services). The Client must pay Mersa for the Services in accordance with this Agreement. 

3. Mersa shall perform the Services to the standard of skill, care and diligence expected of a skilled and competent professional practising in the particular fields relevant to the Services. 

4. The Client, or any person through whom the Client is acting, including its officers, employees, agents and any other consultant, builder, subcontractor, supplier or other person engaged by the Client in respect of  the  Undertaking,  shall  at  the  appropriate  times or at the request of Mersa, provide all necessary drawings, specifications, programmes, documents and instructions in writing (Client Information) (and in the format reasonably requested by Mersa from time to time) sufficient to enable Mersa to carry out the Services. 

5. The Client grants a non-exclusive, royalty-free licence to Mersa to use the Intellectual Property Rights in any materials that it supplies to Mersa for the sole purpose of providing the Services in relation to the Undertaking. 

6. The Client: 

6.1 warrants that it owns or has the rights to use the Intellectual Property Rights in any materials that it supplies to Mersa for use in providing the Services in relation to the Undertaking; 

6.2 must not infringe any Intellectual Property Rights in providing any materials to Mersa; and 

6.3 warrants that any Client Information (pursuant to clause 4 of this Agreement) for the purposes of or in connection with the Undertaking from whosoever such instructions may originate shall be fit for their intended purpose. 

7. Any oral or written instruction received from any person through whom the Client is acting shall be deemed to have been given by the Client. Any costs occasioned by Mersa by reason of compliance with such instructions shall be added to any sums otherwise due to Mersa hereunder. 

8. All Intellectual Property Rights in all estimates, schedules, programmes, reports or other documents of whatsoever kind created by Mersa for the sole purposes of the Undertaking (Work Product) shall remain the property of Mersa. Nothing in this Agreement will be taken to transfer ownership or any interest in the Intellectual Property Rights in that Work Product to the Client, or to any other person through whom the Client is acting. 

9. Mersa grants to the Client a personal, non-transferable, non-exclusive, perpetual, royalty-free licence to use any Intellectual Property Rights in the Work Product solely for the purposes of the Undertaki The Client must not make any other use of those Intellectual Property Rights without the prior written consent of Mersa. Mersa may withhold that consent without giving reasons, and may grant such consent subject to conditions, including the payment of further fees by the Client. 

10. The rights created by clause 9 of this Agreement are revocable by Mersa if the Client does not pay the amount payable under this Agreement within forty (40) days after completion of the Services, termination of this Agreement or determination of any dispute regarding Mersa’s entitlement to payment. 

11. The Client must not, under any circumstances, on-supply the Work Product or any component of the Work Product for use by any person through whom the Client is acting for the sole purpose of the Undertaking, or third parties, including use by third parties in any prospectus, sales, promotional or educational material related to the Undertaking without the express prior written consent of Mersa (which consent shall not be unreasonably withheld). 

12. The Client hereby warrants the accuracy and currency of all Client Information and other information provided to Mersa by the Client (including from all consultants engaged by the Client) or to Mersa by others through whom the Client is acting for the purpose of carrying out the Services under this Agreement. It is the responsibility of the Client to check the accuracy of all material provided to Mersa, and to correct the Client Information if necessary. 

13. After commencement of the Services, Mersa must promptly notify the Client if and to the extent it becomes aware that any Client Information contains any error, omission, discrepancy or other defect, apparent or latent, or is otherwise insufficient to enable Mersa to perform the Services. 

14. If Mersa gives notice under clause 13 of this Agreement, the Client must either: 

14.1 direct an appropriate amendment to the scope of the Services; or 

14.2 direct Mersa to proceed notwithstanding its advice. 

15. Mersa shall not in any way be held responsible for any error, omission, discrepancy or other defect, apparent or latent, in any Client Information and other information provided to Mersa by the Client by the Client (or by others through whom the Client is acting). 

16. Mersa will not be liable for any delay or failure to perform its obligations under this Agreement if such delay or failure is due to the Client Information and other information provided to Mersa by the Client (or by others through whom the Client is acting) being out of date, incorrect, inaccurate, misleading or deceptive, or likely to mislead or deceive. 

17. Mersa is entitled to: 

17.1 an adjustment to the sum prescribed in the Fee Submission for any costs occasioned to it by reason of additional work necessary to rectify or overcome any such error, omission, discrepancy or other defect in the Client Information and other information provided to Mersa by the Client (or by others through whom the Client is acting); and/or 

17.2 time for performing the Services in relation to a direction given under clause 14: 

17.2.1 where Mersa has given notice under clause 13; and 

17.2.2 it was not reasonably practicable for Mersa to identify any error, omission, discrepancy or other defect necessitating amendment to the Services prior to commencement of the Services. 

18. The Client must indemnify Mersa against any claim or proceeding that is made, threatened or commenced, and any cost, liability, loss (including consequential loss), damage or expense (including legal and other professional costs on a full indemnity basis) that Mersa incurs or suffers as a direct or indirect result of: 

18.1 Client Information and other information provided by or on behalf of the Client, its officers, employees, agents or any person engaged by the Client, which is out of date, incorrect, inaccurate, misleading or deceptive, or likely to mislead or deceive; 

18.2 claims, proceedings or demands made by third parties arising in respect of the Services; 

18.3 any breach of any term or condition of this Agreement by the Client, its officers, employees, agents or any person engaged by the Client; or 

18.4 any negligent or unlawful act or omission of the Client, its officers, employees, agents or any person engaged by the Client in connection with this Agreement. 

19. Except as expressly stated in this Agreement, and to the extent permissible by law, all terms, conditions, warranties, undertakings and representations implied by statute, common law, custom, trade usage or otherwise are hereby wholly and expressly exclude. 

20. Subject to clause 22, Mersa shall have no liability to the Client or any third party for any loss of revenue, profit, data or goodwill, or for any indirect, special or consequential loss or damage arising out of or in connection with this Agreement, or any collateral agreement, whether in contract, in tort (including negligence), under statute or otherwise. 

21. The liability of Mersa arising out of or in connection with this Agreement, including in contract, in tort (including negligence), under statute or otherwise, and which is not excluded by the terms of this Agreement will be limited to the total of the fees paid by the Client in relation to the Agreement as at the date of the default. The liability of Mersa arising out of or in connection with this Agreement, whether under contract, in tort (including negligence), in equity, under statute or otherwise, shall be deemed to be discharged on the expiration of 3 years from the completion of the Services provided pursuant to this Agreement. 

"22. Nothing in this Agreement shall have the effect of limiting or excluding Mersa’s liability if and to the extent that the same may not be limited or excluded as a matter of l If and to the extent that any of this Agreement is void as a result of section 64 of the Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) then the Consultant’s liability for breach of a condition or obligation is limited to: 

22.1 the supplying of the relevant Services again; or 

22.2 the payment of the cost of having the Services supplied again. 

23. The Client must pay Mersa in accordance with the Fee Submission. In the event that no sum is stated in the Fee Submission, the Client must pay Mersa in accordance with Mersa’s applicable rates at that time. 

24. Should the Undertaking or part of the Undertaking fail to proceed, Mersa shall become entitled to remuneration based upon the hourly rates appropriate to the staff employed by it upon the Undertaking calculated in accordance with Mersa’s applicable rates at that time. 

25. If the Client becomes responsible for paying to Mersa any additional fees pursuant to clauses 4, 7 or 33 herein, such additional fees shall be based upon hourly rates appropriate to the staff employed by it upon the Undertaking as notified by Mersa at the relevant time. 

26. Within 14 days of the date of the relevant invoice, the Client must either: 

26.1 pay the whole amount stated on the relevant invoice; or 

26.2 issue a statement stating the lesser amount the Client proposes to pay together with the reasons. 

Mersa shall not be required to entertain any claim upon any invoice if not notified by the Client in writing to Mersa within 14 days of the date of such invoice. 

27. If the Client fails to make the payment that is due and payable in accordance with clause 1, Mersa may notify the Client in writing that it will suspend performance of the Services, after expiry of at least 7 days written notice to the Client. Unless the payment has been made, Mersa may suspend performance of the Services any time after expiration of the notice period. Mersa must promptly lift the suspension after the Client has made the payment. 

28. It is agreed that the amount stated in the Fee Submission is exclusive of Goods and Services Tax (GST). Notwithstanding any other clause in this Agreement, if any supply made by Mersa under or in connection with this Agreement constitutes a taxable supply, including the payment by the Client to Mersa of any amounts under this Agreement, or by virtue of Mersa engaging any suppliers, then the Client must determine and pay to Mersa: 

28.1 the amount due for services, inclusive of GST, on receipt of a valid tax invoice from Mersa; and 

28.2 if appropriate, reimburse Mersa for any GST paid or payable by Mersa with respect to any taxable supply by Mersa and for amounts payable by the Client under this Agreement. 

29. The Client must reimburse Mersa for all disbursements and other out of pocket expenses including, but not limited to, travelling expenses, printing and photocopying. 

30. If the Client fails to make the payment that is due and payable in accordance with clause 26, Mersa shall be entitled to interest on any overdue accounts at the penalty rate prescribed by section 67P of the Queensland Building and Construction Commission Act 1991 (Qld) and any sum arising by virtue of this condition shall be a debt payable by the Client to Mersa. 

31. If Mersa is required to carry out additional services which are outside the general scope of the Services and the Fee Submission, Mersa shall be entitled to remuneration for such services based upon the hourly rates appropriate to the staff employed by it upon the Undertaking calculated in accordance with Mersa’s applicable rates at that time. 

32. In the event of a break in the continuity of Mersa’s Services, and the Client or any person through whom the Client is acting fails to provide instructions allowing Mersa to continue within thirty (30) days upon written request by Mersa, notwithstanding the provisions of this Agreement, Mersa shall have the right to summarily terminate this Agreement. In this event, Mersa shall be entitled to remuneration for all services provided to the time of such termination at the rate or rates applicable to the Undertaking. 

33. Without in any way limiting either party’s rights, this Agreement may be terminated by either party at any time upon giving thirty (30) days written notice to the other party. 

34. If this Contract is terminated by Mersa under clause 32, 33 or 35, the Client must pay to Mersa: 

34.1 the cost of all services provided up to the date of termination at the rate or rates applicable to the Undertaking; 

34.2 all disbursements incurred by Mersa prior to the date of termination which would have been payable had this Agreement not been terminated; and 

34.3 any costs and expenses reasonably incurred by Mersa by reason of termination. 

35. Where this Agreement is terminated: 

35.1 by the Client, other than because of any material breach of this Agreement by Mersa; or 

35.2 by Mersa, because of any material breach of this Agreement by the Client, clause 36 of this Agreement will apply. If either party commits a material breach of this Agreement, the other party must give to the other party who committed the breach a written notice to show cause. The notice to show cause must: 

35.3 state that it is a notice given under this clause 35; 

35.4 specify what act or omission constitutes the material breach with reasonable details; 

35.5 require the party who committed the breach to show cause in writing why the party giving the notice should not exercise its right of termination; 

35.6 specify the steps considered necessary to rectify the breach; and 

35.7 require the party who committed to breach to remedy the breach within seven (7) days from the date which the notice is served. 

If such steps are taken by the party upon whom the notice to show cause is served within the time specified there shall be no right by the other party to terminate this Agreement under the provisions of this clause 35. If the recipient of a notice to show cause fails to show reasonable cause why the other party should not exercise its right to terminate within the time specified in the notice, the other party may, by further written notice: 

35.8 terminate this Agreement; or 

35.9 if the breach is a failure of the Client to pay Mersa under clause 23, Mersa may suspend performance of the Services until payment is made. 

If Mersa suspends performance of this Agreement under clause 35.9, Mersa must promptly lift the suspension after the Client remedies the breach, unless Mersa has terminated the Agreement. 

36. In addition to any other rights under this Agreement, Mersa may on termination of this Agreement: 

36.1 retain any moneys paid by the Client to Mersa; 

36.2 require the Client to reimburse all expenses incurred by Mersa in contemplation of its complying with the remainder of its obligations in this Agreement; 

36.3 charge a reasonable sum for work performed in respect of which no sum has been previously charged; 

36.4 retake possession of any property of Mersa in possession of the Client; 

36.5 be regarded as discharged from any further obligations under this Agreement; 

36.6 pursue any additional or alternative remedies provided by law; and 

36.7 require the Client to return or destroy any confidential information of Mersa. 

37. The applicable law governing this Agreement shall be the law of the State of Queensland. 

38. A notice, consent or communication under the Agreement is only effective if it is: 

38.1 in writing in English, signed by or on behalf of the person giving it; 

38.2 addressed to the person to whom it is to be given; and 

38.3 given as follows: 

38.3.1 delivered by hand to that person’s address; 

38.3.2 sent to that person’s address by prepaid mail or by prepaid airmail, if the address is overseas; 

38.3.3 sent by fax to that person’s fax number where the sender receives a transmission confirmation report from the despatching machine indicating the transmission has been made without error and showing the relevant number of pages and the correct destination fax number or name of recipient; or 

38.3.4 sent by email to that person’s email address. 

A notice, consent or communication given under this clause 38 is given and received on the corresponding day set out below. The time expressed below is the local time in the place of receipt: 

38.4 if a notice is delivered by hand or sent by fax, it is given and received on: 

38.4.1 that day, if delivered by 5:00pm on a business day; or 

38.4.2 the next business day, in any other case; 

38.5 if a notice is sent by email, it is given and received at the time of departure from the sender’s mail server unless the sender receives an automated message generated by the recipient’s mail server (Failure Message) that the email has not been delivered within two hours. For the avoidance of doubt any response generated by or at the instigation of the recipient (including an ‘out of office’ message) will not be a Failure Message; 

38.6 if a notice is sent by post, it is given and received: 

• three business days after posting, if sent within Australia; or 

• seven business days after posting, if sent to or from a place outside Australia. 

A person’s address, fax number and email address are those set out in the recitals to this Agreement, or as the person otherwise notifies the sender. 

39. Mersa shall not be liable to the Client for any delay or failure to perform its obligations under this Agreement if such failure or delay is due to an event or circumstance beyond Mersa’s reasonable control. Mersa shall notify the Client as soon as practicable after it becomes aware of any event or circumstance beyond its reasonable control which will or may have the effect of delaying or preventing performance of its obligations under the Agreement. Mersa may suspend the performance of its obligations under the Agreement for the likely period of delay caused by the event or circumstance beyond its reasonable control. Mersa will recommence the Services as soon as possible after the delay and give prompt notice to the Client. 

40. In this Agreement the term: 

40.1 ‘The Undertaking’ shall mean the scope of services defined in the Fee Submission. 

40.2 ‘day’ shall mean calendar day. 

40.3 ‘Intellectual Property Rights’ includes all copyright, trade mark, design, patent, semi-conductor or circuit layout rights; trade, business, company or domain names; any right to have confidential information kept confidential; other proprietary rights; any rights to registration of such rights existing anywhere in the world, whether registered or not registered and whether created before, on or after the date of this Agreement." 

41. If a dispute or difference whatsoever arises in connection with this Agreement, either party may give the other party a written notice of the dispute in accordance with this clause 41, adequately identifying and providing details of the dispute. Notwithstanding the existence of a dispute in relation to any matter other than the exercise of a right to terminate this Agreement, the parties must continue to perform the Agreement unless permitted to suspend performance under clauses 27, 9 or 39. Within 14 days after service of a notice of dispute, the parties must submit the dispute to mediation (with the mediator to be agreed by the parties or, failing such agreement, to be appointed by the Queensland Law Society) in accordance with and subject to the Resolution Institute Mediation Rules. Such mediation under this clause 41 must be conducted in good faith and without prejudice. Unless agreed otherwise between the parties, each party shall bear its own cost of any mediation. If the dispute has not been resolved within 28 days of service of the notice of dispute, either party may commence legal proceedings. However, this provision shall not prevent Mersa from instituting legal action at any time to recover moneys owing by the Client to Mersa. 

42. If the Client does not return a signed copy of this Agreement to Mersa, but continues to provide Mersa with information and instructions in relation to the Undertaking, the Client will be deemed to have accepted the terms and conditions contained herein. 

43. The Client must effect and maintain professional indemnity insurance appropriate for the project in relation to which Mersa is providing the Services under this Agreement. 

44. If any provision of this Agreement is invalid, unenforceable, illegal or voidable for any reason, that provision will be severed and the rest of this Agreement shall remain otherwise in full force and effect. 

45. This Agreement constitutes the entire agreement and understanding between the parties in relation to the Services of Mersa under this Agreement and supersedes any prior agreement or understanding on anything connected with that subject matter. 

46. Neither party may assign, transfer or sublet any obligation under this Agreement without the prior written consent of the other party (which must not be unreasonably withheld or delayed). Unless stated in writing to the contrary, no assignment, transfer or subletting of this Agreement shall release the assignor from any of its obligations under this Agreement. 

47. The Client must not without Mersa’s prior written consent divulge or communicate to any person, any document or information: 

47.1 in respect of the contents of the Agreement or the Undertaking; 

47.2 as to the existence, operation or performance of the Agreement or the Undertaking; or 

47.3 which may come to its knowledge in the course of carrying out the Agreement as to the operations, business dealings or financial affairs of Mersa. 

The restriction imposed in this clause 47 does not apply to any disclosure of information: 

47.4 which at the time of the disclosure was in the public domain other than by breach of the Agreement; 

47.5 which is required by law to be communicated to a person who is authorised by law to receive that information; 

47.6 that is necessarily made to a court or an arbitrator or an administrative tribunal in the course of proceedings to which the Client is a party provided that in the case of any arbitration proceedings the Client first obtains from each other party to those proceedings an undertaking, enforceable by Mersa, that each party will similarly not divulge or communicate, without Mersa’s prior written consent, any information referred to in this clause 47; 

47.7 which is made available to another party on a needs to know basis for the purposes of entering into or performing a contract for any part of the work under the Agreement; or 

47.8 which is made available to an officer, employee or agent of the Client on a needs-to-know basis only. 

The Client must ensure that the provisions of this clause 47 are extended to its officers, employees, agents and any other person engaged by the Client and that they comply with such provisions. The Client must not disclose any of the information referred to in this clause 47 to such persons unless they have agreed to the extension of the provisions and given Mersa an undertaking to comply with the provisions. Any breach of the undertakings in clause 47 by the Client or its officers, employees, agents or any other person engaged by the Client, will be or be deemed to be a breach of clause 47 by the Client and without in any way limiting Mersa’s entitlements otherwise at law, at the direction of Mersa the Client must institute proceedings or do whatever Mersa reasonably directs to prevent or contain the breach. 

The Client indemnifies Mersa against all claims, losses, actions, damages, costs (including legal costs) and expenses of any kind whatsoever that Mersa may incur either directly or indirectly, due to any breach of a provision of clause 47 by the Client or their respective officers, employees, agents or any other person engaged by the Client. Mersa may recover from the Client as a debt due and owing to it, any such costs, losses, expenses or damages.