Terms of Agreement
1. DEFINITIONS AND INTERPRETATION
In this Agreement unless the contrary intention appears:
"Agreement" means this document together with the Proposal;
"Claim" means any claim, demand, right, action or proceeding whether in contract, tort, equity, statute or under any other law of Western Australia or the Commonwealth of Australia or any expenses, costs, damages or losses (whether direct or consequential) of any nature which is suffered or incurred by any party arising out of or in connection with this Agreement;
"Dispute" means a dispute between the parties in respect of any fact, matter or thing arising out of or in connection with the Scope of Works or this Agreement and includes a Claim;
"Dispute Notice" means written notice given by one party to the other giving full particulars of the Dispute and that party's view of the correct position in relation to the Dispute;
"Intellectual Property" means any concept, product methodology, technique, procedure, algorithm, management tool, manual, software, data file, idea, design, invention, know-how, process or other intellectual capital developed, discovered or used by TPG in the course of providing the Service and includes all drawings, specifications and other material provided by TPG;
"Proposal" means TPG's proposal to the Client for the provision of consulting services as per digitial proposal;
"Tax Invoice" has the same meaning as in the A New Tax System (Goods and Scope of Works) Tax Act 1999, any associated regulations and associated legislation; and
"TPG" means The Planning Group WA Pty Ltd trading as TPG Town Planning, Urban Design and Heritage.
2. SCOPE OF WORKS
(i) existing reports, documents, proposed plans and information;
(a) entitled to rely and will be relying upon the accuracy of such information in performing the Scope of Works;
4.1 The Client shall pay TPG the Fees in accordance with this Agreement.
4.2 The Client shall complete TPG's Client Billing Information Form annexed to this Agreement and return it with this Agreement to TPG.
4.3 If at any time during the term of this Agreement the Client requests a change to the entity to be invoiced, then the Client shall complete a new Client Billing Information Form and return it to TPG to enable TPG to process the change requested.
4.4 TPG shall issue the Client with a Tax Invoice monthly for the services provided in accordance with the Scope of Works during the preceding month.
4.5 The Fees are exclusive of GST and the Client shall be liable to pay the amount of GST payable on the Fees in addition to the Fees.
4.6 The Client shall pay each Tax Invoice within 30 days of the date of the Tax Invoice.
4.7 If the Client fails to pay a Tax Invoice in accordance with clause 4.4 then, in addition to any rights available to it in law or equity, TPG may suspend any or all of the services until payment in full is received and/or terminate this Agreement in accordance with clause 10.
4.8 The Client shall pay to TPG all costs (including legal costs) and expenses incurred or suffered by TPG in recovering any unpaid amount from the Client.
4.9 If the Client disputes all or any part of the amount claimed in a Tax Invoice then, within 30 days of the date of the Tax Invoice, the Client shall pay to TPG any portion of the amount stated in the Tax Invoice which is not in dispute and comply with clause 9 in relation to that portion of the Tax Invoice which is disputed.
4.10 In addition to any undisputed portion stated in a Tax Invoice, the Client shall pay interest at a rate equivalent to 10% per annum on such undisputed portion which remains due and unpaid after 30 days. Interest shall accrue daily on and from the day which is 30 days from the date of the Tax Invoice and payment thereafter shall be applied first to accrued interest and then to the principal unpaid amount.
5. INTELLECTUAL PROPERTY RIGHTS
5.2 Other than as set out in clause 5.1 the Client acknowledges that nothing in this clause operates to grant to the Client any right, claim, title or interest in or to the Intellectual Property. The Intellectual Property shall not be disclosed to third parties without TPG's prior written consent. The supply to or use of any of the Intellectual Property by the Client prior to payment of the Fees to TPG does not imply the grant of a licence in favour of the Client for its use.
5.3 Each party warrants that any Intellectual Property or other material or information provided to the other party does not infringe any Intellectual Property Right and each party shall indemnify the other against any costs (including legal costs), expenses, loss or damage incurred or suffered by the other in connection with any actual or alleged infringement of any Intellectual Property Right.
7.2 TPG shall not be liable to the Client for any Claim or Claims which:
(a) in any manner relate to a loss of revenue, profits, opportunity or production, loss or denial of use of any equipment or facility, increased expense of operation, economic loss, loss of goodwill or reputation, delay, business interruption or the cost of repair to or replacement of equipment, facilities or goods related to third party services;
(b) in any manner can be construed as indirect, incidental, special, punitive or consequential loss or damage; or
(c) is not a direct result of a breach by TPG of either the standard of care referred to in clause 3 or another provision of this Agreement.
7.3 The Client releases TPG and its agents, employees or consultants from any or all liability to the Client for all Claims under clause 7.2.
7.4 The Client shall indemnify TPG and its officers, agents, employees and consultants against any Claim or Claims that are made by or on behalf of any third party for any loss or damage (including property damage and injury or death) arising from or in connection with the Scope of Works except to the extent that such loss or damage was caused by the negligent act or omission of TPG or its officers, agents, employees and consultants.
7.5 Subject to clause 7.4, the Scope of Works are provided for the exclusive benefit of the Client and TPG accepts no liability to any person other than the Client in respect of any Claim arising out of or in connection with the Scope of Works. If the Client allows any third party to enjoy the benefit of the Scope of Works, the Client shall be fully responsible for and must indemnify TPG against any Claim by that third party.
8.1 TPG and the Client shall each take out and maintain insurance cover as required by statute or as is reasonable in the circumstances in adequate amounts for the risks each party bears under this Agreement and taking into account the nature of the Scope of Works.
8.2 If requested at any time during the term of this Agreement, each party shall provide a certificate of currency for insurances held to the other party.
9.2 TPG may terminate this Agreement if the Client materially breaches this Agreement and:
(a) TPG provides the Client with a written notice specifying the breach and requiring the breach to be remedied within the time stated in the notice (which shall not be less than 7 days); and
10.1 If a Dispute arises then either party may give a Dispute Notice to the other party and if a Dispute Notice is given then the Dispute shall be determined in accordance with this clause 10.
10.2 If not resolved within 14 days of the Dispute Notice (or such longer period as the parties may agree), the Dispute shall be referred to the authorised representative of each party who shall meet and undertake genuine and good faith negotiations with a view to resolving the Dispute.
10.3 If all efforts to resolve the Dispute under clause 10.2 fail and:
(a) 21 days has expired since the giving of the Dispute Notice (or such longer period of time as the parties may agree); and
(b) the quantum of the Dispute is less than AUD$50,000,
Then the Dispute shall be submitted for expert determination to be conducted by a person appointed by the parties or, failing agreement on such appointment within 35 days after the giving of the Dispute Notice, a person appointed by the President for the time being of the Law Society of Western Australia. The person appointed ("the Expert") shall act as an expert and not an arbitrator and his or her decision shall be final and binding upon the parties. The Expert shall determine the dispute within 90 days of his or her appointment.
10.4 Each party will bear its own costs in respect of any expert determination undertaken in accordance with clause 10.3 and each party shall pay one-half of the Expert's costs.
10.5 If the Dispute is not resolved under clause 10.2 within 21 days after the giving of the Dispute Notice (or within such longer period of time as the parties may agree) AND the quantum of the Dispute is more than AUD$50,000, then either party may commence legal proceedings against the other to resolve the Dispute.
10.6 This clause 10 shall survive the termination of this Agreement.
11.2 Any notice demand or other communication required to be given or made under this Agreement shall be in writing and shall be delivered personally or sent by prepaid registered mail to each of the parties at their respective addresses. Any notice or other communication sent by mail shall be deemed to have been received by the Party to whom it was sent on the third day following posting.
11.3 This Agreement may be amended or varied only by agreement in writing signed by the parties.
11.4 No waiver of any provision of this Agreement by any of the parties shall be effective unless it is in writing and then such waiver shall be effective only in the specific instance and for the purpose for which it was given.
11.5 This Agreement is governed by and construed in accordance with the laws of Western Australia.
SCHEDULE A: EXPENSES AND DISBURSEMENTS
Expenses and Disbursements:
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