1.1 Definitions

In this Agreement, unless inconsistent with the context or subject matter:

(a) ACL: means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth)).

(b) Address for Service: in relation to each party, the email address as specified in the Quote or as otherwise generally used by the party in communications with the other party.

(c) Agreement: these Terms and Conditions and the Quote.

(d) Applicable Laws: all acts, legislation and all orders, by-laws and regulations made thereunder in any way governing or affecting the exercise of the parties' rights or the performance of their obligations under this Agreement.

(e) Building: the building referred to in the Quote.

(f) Client Data: all data, works, information and materials supplied by the Client to the Service Provider, or transmitted by the Client through the Services and the provision of the Services.

(g) Commencement Date: the date specified in the Quote or such other date as agreed in writing by the parties.

(h) Confidential Information: means any information, whether recorded in writing or otherwise disclosed by one party to the other which any reasonable person would consider to be of a confidential nature, including without limitation any trade secrets, methods, strategies, competitor details, pricing, and other business processes. Confidential Information does not include information that:

• (i) is or becomes independently developed or known by the other party through no breach of this Agreement by that party; or
• (ii) becomes publicly available without breach of this Agreement.

(i) Fee: the fee calculated in accordance with clause 6.1.

(j) Force Majeure Event: events, circumstances or causes beyond a party's reasonable control including (but not limited to):

• (i) strikes, lock-outs or other industrial action;
• (ii) civil commotion, riot, invasion, cyber-attack, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
• (iii) fire, explosion, storm, flood, earthquake, subsidence, epidemic, pandemic, health emergencies, disease, or other natural disaster;
• (iv) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
• (v) interruption or failure of utility services (including the inability to use public or private telecommunications networks); and
• (vi) the acts, decrees, legislation, regulations or restrictions of any Government Agency,

however, does not include a lack of funds.

(k) Government Agency: any government or governmental, administrative, monetary, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.

(l) Insolvency Event:

• (i) a controller (as defined in section 9 of the Corporations Act), administrator or similar officer is appointed in respect of a person or any asset of a person;
• (ii) a liquidator or provisional liquidator is appointed in respect of a person;
• (iii) any application (that is not withdrawn or dismissed within seven days is made to a court for an order, or an order is made, or a meeting is convened or a resolution is passed, for the purpose of (i) appointing a person referred to in paragraph (i) or (ii) of this definition; (ii) winding up or deregistering a person; or (iii) proposing or implementing a scheme of arrangement of a person, other than with the prior approval of the Agent under a scheme of arrangement pursuant to Part 5.1 of the Corporations Act;
• (iv) any action, proceedings, procedure or step is taken for the purpose of implementing or agreeing (i) a moratorium of any indebtedness of a person; (ii) any other composition, compromise, assignment or arrangement with any creditor or creditors of a person; or (iii) any similar proceeding or arrangement by which the assets of a person are subjected conditionally or unconditionally to the control of its creditors or a trustee;
• (v) any event occurs in relation to a person in any jurisdiction that is analogous, or has a substantially similar effect, to those set out in paragraphs (i) to (iv) of this definition (inclusive); or
• (vi) a person is or admits in writing that it is, or is declared to be, or is taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.

(m) Intellectual Property: includes but is not limited to copyright, trade marks, patents, processes, know-how, designs and other like rights whether recorded in writing or otherwise.

(n) Intellectual Property Rights: all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.

(o) Loss: any loss, liability, cost, charge, expense, tax or damage of any nature whatsoever, including lost profits, loss of goodwill, loss of business, loss of production and any other special, incidental, exemplary, compensatory or consequential damages, losses or expenses (howsoever arising or caused, including, without limitation, negligence).

(p) Materials: works, items, concepts, designs, inventions, developments, improvements, systems or other materials or information of whatever nature created, made, discovered, produced or developed by the Client or the Service Provider (either alone or with others) in connection with the Services.

(q) Personnel: the directors, officers, employees, contractors, suppliers, advisers or agents of a party.

(r) Plans: the plans referred to in the Quote.

(s) Quote: the Quote attached to these Terms and Conditions or otherwise agreed and linked to these Terms and Conditions and any other Quote entered into by the parties from time to time.

(t) Report: the report as set out in the Quote or as required to be provided as part of the Services containing the estimation of the costs of construction of the Building.

(u) Services:

• (i) the services to be provided by the Service Provider to the Client as set out in the Quote; and
• (ii) the provision of the Report as set out in the Quote.

(v) Special Conditions: those Special Conditions contained in the Quote (if any).

(w) State: Queensland.

(x) Term: the period of this Agreement commencing on the Commencement Date and continuing until termination.

1.2 Interpretation

In this Agreement the following rules of interpretation apply, unless the contrary intention appears or context otherwise requires:

(a) Headings and subheadings are for convenience only and do not affect the interpretation of this Agreement.

(b) References to clauses, schedules, annexures, appendices, attachments and exhibits are references to the clauses of, and the schedules, annexures, appendices, attachments and exhibits to, this Agreement.

(c) References to parties are references to the parties to this Agreement.

(d) References to a party to any agreement or document include that party's permitted assignees and successors, including executors and administrators and legal representatives.

(e) Words denoting the singular include the plural and words denoting the plural include the singular.

(f) Words denoting any gender include all genders.

(g) The word 'person' includes any individual, corporation or other body corporate, partnership, joint venture, trust, association and any Government Agency.

(h) A reference to a body (other than a party to this Agreement), whether statutory or not, that ceases to exist or has its powers or functions transferred to another body is a reference to the body that replaces it or that substantially succeeds to its powers or functions.

(i) A reference to any agreement or document (including this Agreement) includes any amendments to or replacements of that document.

(j) A reference to a law includes:

• (i) legislation, regulations and other instruments made under legislation and any consolidations, amendments, re-enactments or replacements of them;
• (ii) any constitutional provision, treaty or decree;
• (iii) any judgment;
• (iv) any rule or principle of common law or equity,

and is a reference to that law as amended, consolidated, re-enacted, replaced or applied to new or different facts.

(k) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons binds them jointly and each of them severally.

(l) Any promise, agreement, representation or warranty given or entered into on the part of two or more persons is for the benefit of them jointly and each of them severally.

(m) No provision of this Agreement will be construed adversely to a party because that party was responsible for the preparation of that provision or this Agreement.

(n) If a period of time begins on a given day or the day of an act or event, it is to be calculated exclusive of that day.

(o) A reference to time is a reference to time in the capital city of the State.

(p) A reference to a day is a reference to a day in the capital city of the State.

(q) A reference to a day is to be interpreted as the period of time commencing at midnight and ending 24 hours later.

(r) If any act is required to be performed under this Agreement by a party on or by a specified day and the act is performed after 5.00 pm on that day, the act is deemed to be performed on the next day.

(s) If any act is required to be performed under this Agreement on or by a specified day and that day is not a business day, the act must be performed on or by the next business day.

(t) A reference to an amount of dollars, Australian dollars, $ or A$ is a reference to the lawful currency of the Commonwealth of Australia, unless the amount is specifically denominated in another currency.

(u) Specifying anything in this Agreement after the terms 'include', 'including', 'includes', 'for example', 'such as' or any similar expression does not limit the sense of the words, description, definition, phrase or term preceding those terms unless there is express wording to the contrary.

(v) Where this Agreement is executed for a party by an attorney, the attorney by executing it declares that the attorney has no notice of revocation of the power of attorney.

(w) This Agreement includes all schedules, annexures, appendices, attachments and exhibits to it.

(x) A reference to writing or written includes email.

(y) Where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase have corresponding meanings.

4.1 Provision of Services

In consideration for payment of the Fees, the Service Provider agrees to provide the Services to the Client in the manner and in accordance with the Quote.

4.2 Scope of Services

(a) The Client acknowledges and agrees that the scope of such Services including the Report required to be delivered will be as specified in the Quote.

(b) The Service Provider may agree to changes to the scope at its discretion in accordance with the change policy set out in clause 7. Any additional Services outside of the scope will be quoted and attract additional fees in accordance with clause 7.

4.3 Performance of Services

(a) The Service Provider may determine the manner by which it performs the Services for the Client, including the software and calculation methods used to calculate costs within the Report.

(b) The parties agree to act in a timely, efficient, dependable and cooperative manner.

5.1 Provision of Report

The Service Provider must provide the Report in accordance with the specifications as set out in the Quote.

5.2 Scope of Report

(a) The Report is confined to providing an estimate only of the costs of construction of the Building as specified in the Quote. The Report is based on the information provided by the Client. The Report is not prepared by a qualified Quantity Surveyor. The Service Provider is not providing the services of a Quantity Surveyor.

(b) The Report does not include an estimation of costs arising from unusual site conditions, costs arising from wet and inclement weather, delays and work stoppages, general fluctuations in materials and labour costs, local conditions (including access, additional insurance risks, additional transport costs and labour hire rates). The Client should carefully check the labour rates in the Report against those in their area.

5.3 Amendments to Reports

The Service Provider may agree to amend the Report if required if different products, dimensions or any other information is provided by the Client in addition to information initially provided by the Client. Such amendments will fall under the change policy set out in clause 7 (and additional fees may apply).

6.1 Fees

(a) In consideration of the Service Provider performing the Services, the Client agrees to pay the Service Provider the fees and any other considerations in the amounts and in the manner as set out in the Quote or as otherwise agreed in writing (Fee).

(b) Where the Fee is calculated on a time basis, the hourly rates will be as set out in the agreement.

(c) Where the Fee is calculated on a fixed price basis, the amount of those charges will be as set out in the Fee Schedule. The Fee may also include amounts calculated on the basis of a percentage of the value of the property to be estimated. Please review the Fee Schedule for calculation methods.

6.2 Time for Payment

The Service Provider shall invoice the Client in accordance with the terms of payment as specified in the Quote and the Client agrees to pay each invoice within 7 days of the date specified on the invoice.

6.3 Liability for payment

The Client acknowledges that it must pay the Fee for the Services regardless of the results of a tender (the subject of which the Report was used for), or whether or not a customer of the Client for whom the Report was for has paid them.

6.4 Late Payment

If the Client fails to pay any amount when due under this Agreement, the Client acknowledges that the Service Provider may in its discretion:

(a) cease providing the Services to the Client without notice until all overdue amounts are paid (including any accrued interest in accordance with sub-clause (b)), and the Service Provider will not be responsible for any Loss the Client suffers because of this; and

(b) charge the Client interest on the overdue amount at the rate of 12% per annum accruing daily until the date of actual payment; and/or

(c) terminate this Agreement, whereupon the Fees for the Services performed up to the date of termination, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.

6.5 Default in terms

The Client will also pay to the Service Provider, on demand, on a full indemnity basis, all amounts that the Service Provider may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Client defaulting on any of the terms of this Agreement.

6.6 Direct Debit Authority

If the parties have agreed that the Fees will be paid via a direct debit arrangement, then the Client irrevocably authorises the Service Provider to debit the Fees during the term from the Client's nominated bank account/credit card/debit card ("Account"), on or about the due date for payment without notice to the Client. The Client must ensure that the Account details are up to date at all times and the Client must notify the Service Provider in the event that the details are no longer current, and provide replacement details. The Client also irrevocably authorises the Service Provider to deduct all other fees and charges payable by the Client to the Service Provider under this Agreement from the Client's nominated Account. The Client warrants that the Client is the owner or has the right to use any Account details provided to the Service Provider.

6.7 General

(a) All Fees must be paid into the bank account nominated by the Service Provider or by any other means specified by the Service Provider.

(b) The Client must pay the Service Provider all Fees and other amounts without set-off or claim under any circumstances, including if a dispute exists in relation to the Services provided.

(c) The Service Provider reserves the right to charge a small administrative fee in the event payments are made using a credit, debit or charge card (including Visa, MasterCard, American Express or Diners Club.

(d) All fees are exclusive of GST. The Client shall, on receipt of a valid tax invoice from the Service Provider, pay such amounts in respect of GST as are chargeable on the supply of the Services. Payment of any applicable GST is due at the same time as the fees.

(e) To the extent permitted by law, all Fees are non-refundable.

10.1 Supply of information, approvals, documents and assistance

(a) The Client acknowledges and agrees that it will promptly provide all information, documentation, approvals and assistance reasonably required by the Service Provider in order for the Service Provider to provide the Services as soon as possible on being requested to do so. This includes, without limitation, any further documents required to complete the Report.

(b) If the Client fails to provide requested documents then the Services may not be accurate and any delays may delay the Services and may incur additional charges.

(c) Where the Client fails to supply this information to the Service Provider, and that prevents the progress of the Services for a period of 28 days or more, then, the Service Provider reserves the right to:

• (i) terminate this Agreement; and
• (ii) invoice the Client for any part or parts of the Services already completed.

10.2 Compliance with Laws

The Client agrees that it will not by receiving or requesting the Services:

(a) breach any applicable laws, rules and regulations (including any applicable privacy laws); or

(b) infringe the intellectual property rights or other rights of any third party or breach any duty of confidentiality.

18.1 Pre-Existing IP

(a) Each party acknowledges that the Intellectual Property Rights of any materials developed by a party prior to the Commencement Date or that is created independently of this Agreement (together the "Pre-existing IP Rights") remain the sole property of the owner. Ownership of Pre-existing IP Rights remains unchanged by this Agreement, other than as expressly set out in this Agreement.

(b) The Client grants the Service Provider a worldwide, non-exclusive, royalty free, non-transferable licence to use the Pre-existing IP Rights owned by it for the sole purpose of performing the Services.

18.2 Client Data

The Client grants the Service Provider a non-exclusive and irrevocable licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Client Data to the extent reasonably required for the performance of the Service Provider's obligations and exercise of the Service Provider's rights under this Agreement, together with the right to sub-licence those rights to the Service Provider's hosting, connectivity and telecommunications service providers to the extent reasonably necessary.

18.3 Materials and/or Report

(a) The parties acknowledge and agree that the rights, title and interest (including Intellectual Property Rights) which subsist in or which may be obtained from the Materials and/or the Report will be owned by the Service Provider.

(b) The Service Provider grants the Client the right to use the Report solely to obtain the benefit of the Services.

18.4 Service Provider Intellectual Property Rights

The Client acknowledges and agrees that it must not breach any of the Service Provider's Intellectual Property Rights, such as by:

(a) breaching the copyright in any of its Intellectual Property;

(b) altering, reverse engineering, selling or otherwise dealing with its Intellectual Property in any way that is inconsistent with the Service Provider's ownership of such Intellectual Property;

(c) using the Service Provider's Intellectual Property for any purpose other than which they were provided to the Client.

18.5 Right to publicize

The Client grants the Service Provider a non-exclusive and irrevocable licence to use the Client's name, logo and likeness, along with imagery or demonstrations of the Reports solely for the purpose of publicizing or marketing the works in promoting the Service Provider.

18.6 Survival

This clause survives termination of this Agreement.

19.1 No building advice or product recommendations

(a) Any information provided by the Service Provider to the Client (including any information contained in the Report) is not and should not be construed as building advice. Such information is provided to the Client as a convenience and is to be taken as general information only.

(b) Notwithstanding clause 19.1(a), any Report is not advice on the design and construction of the Building or its compliance with the Building Code of Australia, work place health and safety matters during or after construction, compliance with local authority requirements (including without limitation town planning and building approval) and legal matters relating to building contracts.

(c) The Report does not substitute and should not be used as a substitute for relevant experts, including without limitation, soil test experts, engineers, architects, builders, bush fire management experts, town planners, waste water experts, rain water experts, sustainability experts, plumbers, electricians and other suitably qualified trades people and experts. The Report is designed to support not replace such relationships.

(d) The Client particularly acknowledges that the Service Provider does not provide, architectural, building, engineering, or other building related advice and the Client should seek such advice from suitably qualified professionals and trades people.

(e) All products included in the Report are not a recommendation to use that product. The particular products have only been used to illustrate the comparative cost of that part of the Building. The Client must make their own inquiries and investigations to decide what products to use.

19.2 Report information

(a) The Report is an estimate only and will be affected by (without limitation) market fluctuations in employment costs, the actual structural dimensions recommended by the engineer, shortages of materials, lack of detail on the plans provided, local authority fees, fees for other experts or trades people, compliance with energy efficiency ratings, insurance costs, unusual site conditions, inclement weather, work stoppages, liquidated damages that may arise from any delay to the construction of the building. If the Client fails to provide adequate, correct, current and accurate information then the Report information may not be accurately calculated.

(b) All structural dimensions used in the Report are used only by way of a guide to calculate costs or are as shown on the Plans. Everything of a structural nature in the Report must be referred to the Client's engineer for their approval before commencing construction or ordering materials. This Report will be amended based upon the recommendations provided by the Client's engineer. Such amendments will be treated under the change policy in clause 7 and may incur additional costs.

19.3 No representations or warranty

(a) The Service Provider provides the Services on an "as is" basis and without any warranties, representations, or conditions of any kind, whether express, implied or statutory, to the extent permitted by law. The Client uses the Services and any information contained from the Services (including the Report) at its own risk.

(b) Whilst every effort is taken to ensure such information and the Report is accurate, the Service Provider makes no representations and give no warranties about the currency, suitability, reliability, availability, timeliness and/or accuracy of such information and the Report for any purpose. The Client acknowledges and agrees that:

• (i) the Service Provider does not promise that the Services or any Report will be error-free, or that the Client's use of the Services will provide any specific results;
• (ii) the Service Provider does not represent or warrant that the Client's use of the Services or any Report will meet their particular requirements or provide any desired outcomes, whether those requirements are disclosed to the Service Provider or not;
• (iii) the Client assumes total responsibility for their use of the Services or any Report.

(c) The Services provided (including the Report) are based in Australia and the Service Provider makes no representation or warranty with respect to whether the content or the Report is appropriate, legal or comply with applicable laws of other jurisdictions.

19.4 The Client is solely responsible

The Client acknowledges that they are solely responsible for following, or not following, or making an assessment of any advice and/or use of any information provided during the Services including the Report and that the Service Provider is not responsible for any Loss that the Client may suffer as a result of use of the Report. Due to the nature of software, the Service Provider is unable to guarantee the data accuracy of any Report, or the completeness or reliability of such Report, and as such the Report may have errors. The Client should make their own enquiries and review and obtain their own independent advice in relation to the information contained within the Report before making any decision or taking any action based on their contents (including providing the Report to a third party such as a customer of the Client).

25.1 Variation

An amendment or variation of any term of this Agreement must be in writing and signed by each party.

25.2 No Waiver

(a) No party may rely on the words or conduct of any other party as being a waiver of any right, power or remedy arising under or in connection with this Agreement unless the other party or parties expressly grant a waiver of the right, power or remedy. Any waiver must be in writing, signed by the party granting the waiver and is only effective to the extent set out in that waiver.

(b) Words or conduct referred to in clause 25.2(a) include any delay in exercising a right, any election between rights and remedies and any conduct that might otherwise give rise to an estoppel

25.3 Assignment, Novation and Other Dealings

(a) The Service Provider may assign or novate any rights that arise out of or under this Agreement without the consent of the Client.

(b) Any rights of the Client that arise out of or under this Agreement are not assignable or capable of novation by the Client without the prior written consent of the Service Provider, whose consent must not be unreasonably withheld.

25.4 Costs

The parties must bear their own costs of and incidental to the negotiation, preparation and execution of this Agreement.

25.5 Severability

(a) If the whole or any part of a provision of this Agreement is or becomes invalid or unenforceable under the law of any jurisdiction, it is severed in that jurisdiction to the extent that it is invalid or unenforceable and whether it is in severable terms or not.

(b) Clause 25.5(a) does not apply if the severance of a provision of this Agreement in accordance with that clause would materially affect or alter the nature or effect of the parties' obligations under this Agreement.

25.6 No Merger

On completion or termination of this Agreement, the rights and obligations of the parties set out in this Agreement will not merge and any provision that has not been fulfilled remains in force.

25.7 Survival

Any clause which by its nature is intended to survive termination or expiry of this Agreement will survive such termination or expiry.

25.8 Time of the Essence

Time is of the essence in this Agreement in respect of any date or time period and any obligation to pay money.

25.9 Remedies Cumulative

Except as provided in this Agreement and permitted by law, the rights, powers and remedies provided in this Agreement are cumulative with and not exclusive to the rights, powers or remedies provided by law independently of this Agreement.

25.10 Entire Agreement

This Agreement states all the express terms agreed by the parties about its subject matter. It supersedes all prior agreements, understandings, negotiations and discussions in respect of its subject matter.

25.11 Governing Law and Jurisdiction

(a) This Agreement is governed by the law in force in the State.

(b) Each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in the State and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement.

(c) Each party irrevocably waives any right it has to object to the venue of any legal process in the courts described in clause 25.11(a) on the basis that:

• (i) any proceeding arising out of or in connection with this Agreement has been brought in an inconvenient forum; or
• (ii) the courts described in clause 25.11(a) do not have jurisdiction.

25.12 Dispute resolution

(a) If a dispute arises in connection with this Agreement then a party may only deal with that dispute in the manner set out in this clause.

(b) A party to a dispute which arises in connection with this Agreement may give to the other party or parties to the dispute a notice specifying the dispute and requiring its resolution under this clause.

(c) Within 7 days after a notice is given under the above clause (or such longer period as is agreed in writing by the parties to the dispute) each party to the dispute must use its best efforts to resolve the dispute in good faith.

(d) If despite the parties' best efforts a dispute not resolved within 7 days after notice a party may by notice to the other party or parties to the dispute refer the dispute for mediation in accordance with the Resolution Institute Mediation Rules. The mediation will be conducted by a mediator to be appointed by agreement of the parties or, if the parties are unable to agree on a mediator within 7 days of a party making a written nomination to the other party, to be appointed by the Chair (or his or her designated representative) of Resolution Institute (ACN 008 651 232) at the request of a party.

(e) If the dispute is not resolved within 30 days after the appointment of the mediator any party may take legal proceedings to resolve the dispute. The provisions of this clause do not prevent any party from obtaining any injunctive, declaratory or other interlocutory relief from a Court which may be urgently required.