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Terms and Conditions

Definitions

 

1. For these Terms and Conditions of Business, the following definitions apply:

Client means the person or entity for whom the Services are being provided. Commencement Date means the date the Client confirms its acceptance of these Terms.

Project means the project in respect of which the Services will be provided.

Project Documents refers to all reports, specifications, photographs, calculations, and other documents provided by Buy Airspace in connection with the Project.

Schedule of Rates means the Schedule of Rates set out in the Scope of Works.

Scope of Works means the Scope of Works document to which these Terms are attached.

Services means the town planning services provided by Buy Airspace as described in the Scope of Works or as agreed to by the Client and Buy Airspace.

Site means the location of the Project.

Specialist Consultant/s means the specialist consultant/s required for the Project.

Terms are these Terms and Conditions of Business and include any schedules and

attachments.

 

Interpretation

 

2 In these Terms:

2.1 headings are for convenience only and do not affect interpretation unless the context indicates a contrary intention:

2.2 "person" includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated),

a partnership and a trust.

2.3 a reference to a party includes that party's executors, administrators, successors, and permitted assigns, including persons taking by way of novation.

2.4 A reference to a document (including these Terms) refers to that document as varied, novated, ratified or replaced from time to time.

2.5 a word importing the singular includes the plural (and vice versa), and a word indicating a gender includes every other gender.

2.6 a reference to a party, clause, schedule, exhibit, attachment or annexure is a reference to a party, clause, schedule, exhibit, attachment or annexure to or of these Terms, and a reference to these Terms includes all schedules, exhibits, attachments and annexures to it.

2.7 if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning.

2.8 any covenant or agreement on the part of two or more persons shall be deemed to bind them jointly and severally.

2.9  "includes" in any form is not a word of limitation, and

2.10 a reference to "$" or "dollar" is to Australian currency.

 

General

 

3 These Terms set out the terms and conditions on which Buy Airspace agrees to provide the Services to the Client.

 

Services

 

4 Buy Airspace will provide the Services to the Client, and the Client will pay Buy Airspace any costs in accordance with these Terms.

 

5 Buy Airspace will commence performing the Services on the Commencement Date, or such other date agreed between the parties.

 

6 Buy Airspace agrees to:

 

6.1 carry out and perform the Services for the Client with good faith by these Terms.

6.2 maintain records and keep the Client informed of the progress of the relevant stages as set out in the Scope of Works:

6.3 notify the Client of any matter connected with the Services that may give rise to an ethical or regulatory conflict of interest and

6.4 maintain all necessary registrations and accreditations to deliver the Services in New South Wales.

 

7 Buy Airspace will endeavour to provide the Services promptly; however, the Client acknowledges that any timeframes provided by Buy Airspace are estimates only due to the limited control over the planning process.

 

Fees and billing

 

8 Buy Airspace’s fees for the Services will be calculated by reference to the time spent on the work and the hourly rates set out in the Scope of Works. The estimated fee, or number of hours required to complete the Services, is set out in the Scope of Works. This amount is an estimate only and not a fixed quote. While the forecast is based on present information and Buy Airspace’s current understanding from the Client as to what services are required, the costs may exceed the estimated amount if further information becomes available or circumstances change which affect these matters. In this event, Buy Airspace will provide the Client with a revised estimate as soon as reasonably practicable.

 

9 Any quotation provided by Buy Airspace to the Client is valid for sixty (60) days from its date, provided that Buy Airspace has not previously withdrawn it.

 

10 The Schedule of Rates is reviewed regularly and may change during the Project. Buy Airspace will inform the Client in writing of any adjustments to the Schedule of Rates.

 

11 Upon confirmation of the Client’s instructions to proceed with the Services and prior to the commencement of any work, Buy Airspace will issue an invoice for the amount equivalent to two (2) hours of work charged at an hourly rate of $190 plus GST. Further invoices will be issued to the Client after each stage of the works or as and when required by Buy Airspace, and payment will be required in full before the release of any documentation or advice.

 

12 Payment of all invoices is required within seven (7) days from the invoice date.

 

13 The Client will be responsible for payment of all fees or changes related to the planning

process (including all Council fees). The payment of all such fees are the sole responsibility of, and payable by, the Client. Buy Airspace will have no liability for such fees or charges. Failure by the Client to pay any required fees or charges by the required time may delay the planning process, and Buy Airspace will not be liable for this or any resulting delays or non-delivery of the Services.

 

Late payment

 

14 Unpaid invoices will attract interest at 15% per annum, calculated daily and compounded monthly.

 

15 Where monies owed by the Client remain outstanding seven (7) days past the stated due

date for payment, Buy Airspace reserves the right to suspend the provision of Services under these Terms. Buy Airspace also reserves the right to forward any debt owed by the Client to a collection agency, and all charges associated with this process will be the Client's responsibility.

 

Change to the Scope of Works

 

16 The parties acknowledge that the Scope of Works have been agreed between the parties

based on the Client’s instructions and the information available and known to Buy Airspace as of the Commencement Date.

 

17 Should the Client instruct Buy Airspace to perform work outside the Scope of Works, such work will incur additional cost. Buy Airspace will seek to confirm the Client’s instructions before incurring extra fees. However, there may be occasions where the urgency of the work requires Buy Airspace to act in advance of notification and in those circumstances, Buy Airspace will notify the Client as soon as reasonably practicable. The Client agrees to pay those additional fees in such circumstances.

 

18 If Buy Airspace considers that the Project requires a greater scope of services than that set out in the Scope of Works, the parties shall negotiate in good faith and agree on:

 

18.1 the changed scope of services.

18.2  the changes to any quoted fees and any disbursements.

18.3 the date on which any changes will take effect; and

18.4 any reimbursement due to Buy Airspace.

 

19  The parties agree that these Terms apply to Buy Airspace's preliminary advice on a proposed development at the Site. If the Client instructs Buy Airspace to proceed with a Development Application, Buy Airspace will give the client a fixed-fee proposal for further work.

 

Specialist Consultants

 

20           Buy Airspace and the Client agree that the Project may require the services of Specialist Consultants.

 

21           If Buy Airspace considers it appropriate to do so, Buy Airspace may, with the Client’s prior approval (which shall not be unreasonably withheld), engage a Specialist Consultant to assist Buy Airspace in specialist areas. The Client accepts responsibility for all fees payable to any Specialist Consultant.

 

22           With each Specialist Consultant, Buy Airspace will engage such Specialist Consultant on behalf of the Client on the basis that:

 

22.1       the Client is to promptly pay the Specialist Consultant all of its fees and disbursements.

22.2       Buy Airspace is not responsible for the services provided by the Specialist Consultant.

22.3       Buy Airspace is authorised to coordinate the Specialist Consultant’s services concerning the Project.

22.4       Buy Airspace can use and rely upon the Specialist Consultant’s deliverables to the extent required for the performance of the Services.

22.5       Buy Airspace makes no representation or warranty about the advice or services of the

Specialist Consultant and

22.6       Buy Airspace disclaims all responsibility for all losses, damages, expenses and costs that the Client or any person suffers or incurs due to the acts or omissions of the Specialist Consultant.

 

Client’s Responsibilities and Acknowledgments

 

23 In exchange for receiving the Services, the Client agrees to:

23.1 appoint Buy Airspace as its agent for the Project as it is necessary for Buy Airspace to carry out the Services.

23.2 promptly provide Buy Airspace with all relevant and accurate information as required by Buy Airspace and within the timeframes set by Buy Airspace.

23.3 cooperate fully with Buy Airspace to ensure efficient and satisfactory progress through all stages of the Project, including prompt confirmation of approvals required for the Services.

23.4 complies with all applicable legislation regarding its dealings with Buy Airspace and does not do anything that may cause Buy Airspace to breach any of its obligations under any relevant legislation.

23.5 comply with Buy Airspace’s requirements or directions concerning access to the Site.

23.6 promptly pay Buy Airspace any fees or reimbursable expenses on the applicable due dates for payment.

23.7 promptly pay any interest on overdue payments owed to Buy Airspace and

23.8 comply with the remaining provisions of these Terms.

 

Intellectual Property

 

24 Buy Airspace will retain all ownership in all Project Documents.

 

25 Buy Airspace grants the Client an express, non-exclusive, non-transferable, revocable license to use the Project Documents only for the Project for which it was intended, subject to the conditions that the permit may be revoked by Buy Airspace if any invoice is overdue and payable to Buy Airspace.

 

26 Should the license referred to in the above clause be revoked, the Client must immediately return all Project Documents to Buy Airspace.

 

27 The Client shall not use or make copies of or allow any third parties to use or make copies of the Project Documents in connection with any other work besides the Project.

 

28 This clause survives termination and expiry of these Terms.

 

Confidentiality

 

29 Buy Airspace and the Client agree that each shall treat all information provided by either party to the other party under these Terms as confidential. All confidential information provided by a party shall be used by the other party solely to render the Services and shall not be disclosed to any third party without the prior written consent of the disclosing party. This clause shall not apply to any information that is publicly available when provided or which after that becomes publicly available other than in breach of this clause or which is required to be disclosed by any regulatory authority, any auditor of the parties, by judicial or administrative process or otherwise by applicable law or regulation.

30 This clause survives termination and expiry of these Terms.

 

Insurance

 

31 Buy Airspace will maintain professional indemnity insurance for up to $1,000,000 in any one claim.

 

Liability and Indemnity

 

32 The Client acknowledges that, to the maximum extent permitted by law, Buy Airspace is not liable to the Client in respect of any damage, loss or injury of any nature or kind suffered or incurred by the Client because of:

 

32.1 the provision of the Services by Buy Airspace and

 

32.2 any acts or omissions of Buy Airspace other than in the event of gross negligence or wilful misconduct.

 

33 Buy Airspace will not be liable for any delays or losses incurred in connection with, or arising from, the supply by the Client or other third parties representing the Client of incorrect, misleading or incomplete information, the Client’s failure to act on Buy Airspace’s advice or respond promptly to communications from Buy Airspace or other parties (including Council or other parties involved in the planning process) or any errors or matters beyond Buy Airspace’s reasonable control.

 

34 Buy Airspace will not be liable for outcomes resulting from the Client choosing to or failing to act on or take on board the advice given by Buy Airspace.

 

35 The Client agrees to indemnify and keep indemnified Buy Airspace and its directors, officers, employees and agents from and against all actions, claims, proceedings, demands, liabilities, penalties, loss damage, expenses and costs (including legal costs on a full indemnity basis) that may be brought against Buy Airspace or which Buy Airspace may pay, suffer, sustain or incur as a direct or indirect result of:

 

35.1  any failure by the Client to comply with its obligations under applicable legislation.

35.2 breach of these Terms by the Client and/or

35.3 any act or omission by the Client or its employees or agents.

 

36 To the extent permitted by law, in no event shall Buy Airspace’s liability under these

 

Terms exceed:

36.1 the cost of rectifying any advice or report the subject of a claim (if applicable); or

36.2 50% of the total fees paid by the Client to Buy Airspace in respect of the Services,

whichever is lesser.

 

37  The Client acknowledges that, on and from the date that is one (1) year from the date of the final invoice issued by Buy Airspace to the Client, the Client will have no claim against Buy Airspace and thereby releases Buy Airspace from all claims howsoever arising in connection with the Services and Project.

 

Dispute Resolution

 

38 If a dispute or difference arises under or in connection with these Terms, either party may issue a notice of dispute to the other (Dispute Notice). The Dispute Notice must specify the basis and nature of the dispute including identifying relevant provisions of these Terms and the position which the party issuing the notice considers is the correct position.

 

39 Within fourteen (14) days of giving a Dispute Notice, the parties' representatives shall confer at least once to attempt to resolve the dispute or to agree on methods of resolving the conflict by other means. At any such conference, each party shall be represented by a person with the authority to agree to a resolution of the dispute.

 

40 If the dispute has not been resolved within thirty (30) days of a Dispute Notice being served (or any longer time as may be agreed by the parties), it shall automatically be referred to mediation. The mediator will be chosen at the discretion of Buy Airspace.

 

41 Should the dispute be referred to mediation, each party will bear their own costs associated with the mediation.

 

42 All disputes arising out of these Terms must be managed in accordance with these Dispute Resolution provisions prior to either party taking any further steps. However, nothing in these clauses shall prejudice the right of a party to seek urgent injunctive or similar interim relief from a court.

 

43 This clause survives termination and/or expiry of these Terms.

 

Termination

 

44 Either party may terminate this agreement by giving written notice to the other party.

 

45 The Client will be invoiced in full for all work (or portion thereof) completed by Buy Airspace up to and including the termination date.

 

46 Notwithstanding termination of these Terms by either party, nothing shall prevent the Client’s obligation to make payment of any fees or expenses due under these Terms.

 

GST

 

47 The parties acknowledge that other than expressly stated, all amounts of monetary

consideration referred to are exclusive of GST.

 

48Unless otherwise expressly stated, the Client is responsible for GST.

 

General

 

49 Notices

A notice under these Terms is effective if it is in writing and signed by or on behalf of the party or person giving it.

 

50  Severance

If a provision, or part of a provision, of these Terms is void or voidable, that provision, or part, is severed, and the remainder of these Terms have full force and effect.

 

51 Survival on Termination

Upon expiration or termination of these Terms, the obligations which by their nature are

intended to survive the expiration or termination of the agreement (including the indemnity provisions) shall survive.

 

52 Entire Agreement

These Terms contain the entire Client and Buy Airspace agreement regarding its subject matter. They set out the only conduct relied on by Buy Airspace and the Client and supersede all representations, conduct, contracts, expectations, or arrangements by Buy Airspace or the Client regarding its subject matter.

 

53 Assignment

The rights and obligations of each party under these Terms are personal. They cannot be

assigned, changed or otherwise dealt with (except as expressly provided under these Terms), and neither Buy Airspace nor the Client will attempt or purport to do so without the prior written consent of the other.

 

54 Variation

The provisions of these Terms will not be varied, except by agreement in writing by each

party.

 

55 Waiver

No failure to exercise or delay in exercising any right, power or remedy under these Terms will operate as a waiver, nor will any single or partial exercise of any right, power or remedy preclude any other or further exercise of that right, power or remedy.

 

56 Governing Law

These Terms will be governed by, constructed by and effected by New South Wales laws.

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