1. Each party will designate a Representative who is authorised to act on behalf of that party and receive notices under this Deed of Agreement
2. The Fee and any Reimbursable Expenses will be invoiced in advance of the provision of the Renovate Plans Services and the Client will pay the Fee and Reimbursable Expenses before the provision of the Renovate Plan Services
3. Renovate Plans reserves the right to suspend the Renovate Plans Services if any invoices are unpaid. For avoidance of doubt, Renovate Plans will not be liable for any costs or delays caused by any suspension of the Renovate Plans Services.
4. This Deed may be terminated by either party upon not less than seven (7) Calendar Days written notice should the other party fail to substantially to perform in accordance with these terms and conditions through no fault of the party initiating termination. For avoidance of doubt, the Client must pay any outstanding invoices issued prior to any notice or proportionate to the work completed whichever is the greater. For further avoidance of doubt, should the Client for any reason delay the Project for more than fourteen (14) Calendar Days, the Client must pay any outstanding invoices issued prior to any notice or proportionate to the work completed whichever is the greater.
5. Renovate Plans must be attributed in any and all Public Information about the Project promoted or publicised by or on behalf of the Client.
6. Renovate Plans is entitled to hire the services of a contractor or agent without reference or disclosure to or permission of the Client. For avoidance of doubt, Renovate Plans shall not be responsible for the failure of:
a. Any contractor retained by the Client to perform work required on the Project including but not limited to the contractor’s design services;
b. The Client to pay its contractor(s);
c. Defects in equipment supplied or provided by the Client for incorporation into the Project,
d. Any cross contamination resulting from sub surface investigations;
e. Any damage or subsurface structures or utilities including sewers which were identified and located by the Client and/or its consultants;
f. Any contractor retained by Renovate Plans for the Project,
7. Where Renovate Plans Services is suspended for any reason by the Client or Renovate Plans, Renovate Plans is entitled to payment of all fees and disbursements due at the date of suspension. Where Renovate Plans Services are suspended by the Client, Renovate Plans is entitled to the Fee, the Reimbursable Expenses and other associated costs. For avoidance of doubt, all other rights and entitlements of Renovate Plans continue as though the suspension had not taken place.
8. The parties shall use their best efforts to resolve a dispute by amicable negotiations. If the parties have been unable to resolve a dispute, either party may by written notice require the appointment of a mediator.
9. Intellectual Property Rights for any design and/or drawings prepared for the Client by or on behalf of Renovate Plans belongs to Renovate Plans. For avoidance of doubt, plans, sketches, drawings, graphic representations and specifications including CAD designs and/or drawings (Drawings) shall remain the property of Renovate Plans whether for the Project or not.
10. Upon completion of all services under this Deed and on full payment of all invoices that Renovate Plans entitled to submit, Renovate Plans grants the Client a licence to use any design and/or drawings prepared for the Client under this Deed but only in relation to the Project and any official regulatory requirements.
11. The Client must provide all information required by Renovate Plans, to complete the Renovate Plans Services, cooperate fully with Renovate Plans to ensure efficient and satisfactory progress at all stages of the Project, pay all fees due plus any applicable GST and Reimbursable Expenses, allow Renovate Plans reasonable access to photograph or otherwise record the Project before or after completion and allow Renovate Plans to publicise the Project for marketing purposes.
12. Renovate Plans gives no express or implied warranty that the Project and/or the Renovate Plans Services fit the Purpose. For avoidance of doubt, any design and/or material selected for the Project may change in appearance or dimension following exposure to climatic conditions. The Client is responsible for all ongoing and regular maintenance in respect of the Project
13. The Client may only assign or transfer its entitlements and/or obligations under this Deed without the prior written consent of Renovate Plans.
14. Nothing makes ineffective or reduces any protection at law from liability which Renovate Plans is entitled to in New South Wales.
15. This Deed supersedes all prior agreements relating to the Renovate Plans Services for the Project applies to all services provided by Renovate Plans before the formal execution of this Deed.
16. The Client shall indemnify and keep indemnified Renovate Plans against any costs and/or loss arising out of, relating to or in connection with the Project and the Renovate Plans Services and any damage caused as a result of instructions, plans and/or briefs given by the Client and/or its agents, officers, employees and/or contractors including but not limited to the use of the Intellectual Property said indemnify being a continuing obligation, separate and independent from the other obligations of this Deed and survives termination, completion or expiration of this Deed.
17. Renovate Plans bears no responsibility for any other party’s unauthorised use or reproduction of the Intellectual Property, Confidential Information and/or Knowhow in connection with the manufacture, promotion, distribution and sale of goods or the offering of services in the Territory;
18. Renovate Plans may use the results and/or proceeds of the Project and Renovate Plans Services for its own promotional purposes as it decides fit and in its complete discretion;
19. Any intellectual property including but not limited to knowhow, goodwill, inventions, domain and/or business names, trade marks, confidential information, artistic works and/or literary works including but not limited to the Drawings created by Renovate Plans during the continuance of this Deed (the Intellectual Property) are the property of Renovate Plans and Client will at Renovate Plans’ written request sign all documents reasonably required to transfer and vest any and all such intellectual property in Renovate Plans’ name.
20. The Client undertakes that it will not during the continuance of this Deed or after its expiration or termination take any action, or assist any person or entity to take any action, which would or might:
(i) Invalidate or put in dispute Renovate Plans’ title to the Intellectual Property;
(ii) Oppose any application for registration of any of the Intellectual Property or invalidate any registration of any of the Intellectual Property; or
(iii) Support an application to remove any aspect of the Intellectual Property from a register of intellectual property rights.
21. Renovate Plans may, by notice in writing to the Client, immediately terminate this Deed, without prejudice to any right of action or remedy which has accrued or which may accrue in favour of either party, where:
(a) Client has breached this Deed and the breach is incapable of remedy;
(b) Client has breached this Deed and the breach is capable of remedy but Client has failed to remedy the breach within thirty (14) Calendar Days after being notified by Renovate Plans that it requires remedy; or
(c) Client enters into or threatens or proposes to enter into or is in jeopardy of becoming subject to receivership or any other form of insolvency administration (whether personal or voluntary or not and whether formal or informal).
22. Any provision in this Deed which binds more than one party binds all of those parties jointly and each of them individually.
23. Each obligation imposed on a party by this Deed in favour of another is a separate obligation.
24. A failure, delay, relaxation or indulgence by a party in exercising any power or right conferred on the party by this Deed does not operate as a waiver of the power or right. A single or partial exercise of the power or right does not preclude a further exercise of it or the exercise of any other power or right under this Deed. A waiver of a breach does not operate as a waiver of any other breach.
25. If any provision of this Deed offends any law applicable to it and is as a consequence illegal, invalid or unenforceable then:
(a) Where the offending provision can be read down so as to give it a valid and enforceable operation of a partial nature it must be read down to the extent necessary to achieve that result; and
(b) In any other case, the offending provision must be severed from this Deed in which event the remaining provisions of the Deed operate as if the severed provision had not been included.
26. This Deed binds and benefits the parties and their respective successors and permitted assigns.
27. This Deed cannot be amended or varied except in writing signed by the parties.
28. This Deed is governed by and must be construed in accordance with the laws of the state of New South Wales. The parties submit to the exclusive jurisdiction of the courts of New South Wales in respect of all matters or things arising out of this Deed and in relation to the Intellectual Property the federal courts of Australia.
29. Each Party acknowledges that there has been adequate opportunity to obtain independent legal advice as to the meaning and effect of this Deed before it was signed.
30. The terms of this Deed are confidential and will not be disclosed to any person for any reason other than to the Parties’ professional advisers or as required by law.
31. This Deed may be made up of counterparts. Once signed, all of the counterparts, taken together, will constitute the one document.
In this Deed:
CAD means computer aided design
Date means the date set out in the heading to Page 1 of this Deed;
Deed means this agreement including the background and any schedules;
Effective Date means the date of this Deed;
“Fee” means the total of the fee proposal
“Fee Proposal” means the document entitled Fee Proposal – address
“GST” means GST: means any tax imposed on the supply of goods or services (including without limitation the supply of Intellectual Property) under Commonwealth or State law including but without limitation A New Tax System (Goods and Services Tax) Act 1999 (Cth) or under the laws of any other applicable jurisdiction
“Intellectual Property Rights” means all statutory, proprietary and all other rights including copyrights (including existing and future copyright), confidential information, trademarks and all other rights with respect to the Intellectual Property as defined in Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967
Public Information means any information containing two or three-dimensional representation of the project or a part of it is published exhibited or communicated to persons other than the Parties or their Representatives
“Reimbursable Expenses” includes, but is not limited to, the expenses of consultants, sub consultants, copying, reproduction expenses, CAD plotting expenses, delivery, courier, fax, long distance telephone charges, travel, lodging, photography, construction costs, permit fees, contingency amounts, applicable taxes whether recoverable or not, and GST
“Renovate Plans Services” does not include any services in relation to asbestos, other hazardous materials or any site contaminant but, means [the services offered to the project]
“Representatives” means the person that each party designates to act on behalf of that party and receive notices under this agreement namely
Schedule means the schedule to this Deed;
Territory means Australia
In this Deed unless the context requires otherwise:
(a) The singular includes the plural and vice versa;
(b) The headings are used for convenience only and do not affect the interpretation of this Deed;
(c) A reference to a thing includes a reference to a part of that thing;
(d) A reference to a document includes the document as modified from time to time and any document replacing it;
(e) The word “person” includes a natural person and anybody or entity whether incorporated or not;
(f) The words “in writing” include any communication sent by letter, facsimile transmission or email;
(g) Wherever “include” or any form of that word is used it must be construed as if it were followed by “(without being limited to)”;
(h) Money amounts are stated in Australian currency unless otherwise specified; and
(i) The word “month” means calendar month and the word “year” means twelve (12) months.