These terms of engagement together with the above Proposal and any accompanying documents, comprise the agreement between you, the client and Hillocc Pty Ltd.
i) There may be other fees and charges and these will be outlined in the Council conditions, a minimum of 12-16 weeks after the Integrated Development Assessment System (“IDAS”) application has been submitted to Council;
ii) You acknowledge and agree that fees and charges may increase during the period in which we are providing you with our services and you agree that you shall pay any Council fee and charges increase that may occur from time to time. Specifically, you have acknowledged that Council’s fees and charges do increase annually on the 1st of July;
iii) You acknowledge and agree that the estimates of Council fees and third party consultant fees contained herein are based upon the information available to Hillocc Pty Ltd at the time of preparing the Proposal and Hillocc Pty Ltd does not accept liability for the actual costs varying from this estimate;
iv) Hillocc Pty Ltd’s fees to respond to any Council Information Request issued by Council are not included in the above Proposal and will be charged at an hourly rate shown in the table below. You acknowledge and agree that Hillocc Pty Ltd’s fees may be varied from time to time at our discretion however, you will be notified in writing of any alteration to the schedule of hourly rates;
v) Any other costs associated with specialist consultation reports or advice deemed necessary to respond to Council Information Request will be billed directly to you by the third party consultant;
vi) Hillocc Pty Ltd shall have no liability in respect of any act, omission, negligence or errors of any sub-consultant, contractor, workman, or any other third party involved in the project. Further, you agree to indemnify Hillocc Pty Ltd and to keep Hillocc Pty Ltd indemnified in relation to any costs, damages or expenses incurred or suffered by Hillocc Pty Ltd as a consequence of any such act, omission, negligence or errors of any sub-consultants, contractor, workman or other third party involved in the project;
vii) Fees for Project Co-ordination (if included in the above Proposal) will be charged by Hillocc Pty Ltd at the hourly rate referred to in the Schedule above, for obtaining quotations and engaging other consultants as required for the Project;
viii) Where the Proposal includes an application to Council then, you acknowledge and agree that Hillocc Pty Ltd does not guarantee success of the application and Hillocc Pty Ltd is not responsible for or take any liability for Council’s requests, decisions, timeframes and actions;
ix) In the event of cancellation of a project by you then, any project deposit paid to Hillocc Pty Ltd with written instruction to commence the project will be refundable at the discretion of Hillocc Pty Ltd and dependant upon the progress of the project at the time of cancellation;
x) If you do not wish to proceed with this project then, notwith-standing that you have not signed this Proposal, Hillocc may invoice you for time spent in providing advice on planning or surveying matters specific to this project;
xi) Hillocc Pty Ltd provides fee proposals at no charge, however, if further investigations or research is required Fees will be charged to you, in accordance with the Schedule of Hourly Rates described above which may be varied in accordance with paragraph iv) above;
xii) All invoices issued by Hillocc Pty Ltd are payable within seven days from date of invoice and if payment is not received by the due date, Hillocc Pty Ltd reserves the right to charge interest the outstanding fees at the rate of 12% per annum;
xiii) You agree that you shall supply to Hillocc Pty Ltd all information requested and due within the terms of the agreements and respond to all queries within a reasonable timeframe;
xiv) Where unforeseen circumstances arise then you agree to pay Hillocc Pty Ltd such further Fees as are reasonably determined by Hillocc Pty Ltd for any extra work or services required to be performed by them. Further, you agree to compensate Hillocc Pty Ltd for any costs that Hillocc Pty Ltd incur, as a consequence of those unforeseen circumstances;
xv) Without limiting the generality of any other clause in this agreement, Hillocc Pty Ltd may terminate this agreement immediately by notice in writing if:
(a) you are in breach of any term of this agreement (including the failure to pay any of Hillocc Pty Ltd’s fees) and any such breach is not remedied within fourteen (14) days of you being notified of such breach;
(b) you become, threaten or resolve to become or are in jeopardy of becoming subject to any form of insolvency administration;
(c) you, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;
(d) you, being a natural person, die; or
(e) you cease or threaten to cease conducting your business in the normal manner,
or in any case, upon one (1) months’ written Notice;
xvi) "Event of Force Majeure" in this clause means the occurrence of an event or circumstances beyond the reasonable control of Hillocc Pty Ltd including (without limitation):
(a) a war (declared or undeclared), insurrection, civil commotion, military action, or an act of sabotage;
(b) a strike, lockout or industrial action, dispute or disturbance of any kind;
(c) an act of a government or a Governmental Agency;
(d) an act of God; or
(e) a storm, tempest, fire, flood, earthquake or other natural calamity.
and "Force Majeure" shall have a similar meaning.
Hillocc Pty Ltd shall not be liable for any delay or failure to perform its obligations pursuant to this agreement if such delay is due to Force Majeure.
If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of Hillocc Pty Ltd’s obligations will be suspended.
If a delay or failure by Hillocc Pty Ltd to perform its obligations due to Force Majeure exceeds sixty (60) days, Hillocc Pty Ltd may immediately terminate the agreement on providing notice in writing to you.
Where the delivery of services is suspended or delayed due to Force Majeure, or this agreement is terminated due to Force Majeure, Hillocc Pty Ltd will still be entitled to their fees for the work done to date, and if the fees have been assessed as a lump sum for completing certain work, then a proportion of those fees will be payable, in an amount which is commensurate with the work performed by Hillocc Pty Ltd, as reasonably determined by Hillocc Pty Ltd.
xvii) Governing law and jurisdiction. This agreement shall be construed and governed in accordance with the law of the state of Queensland and the parties hereto shall submit to the same law. Should there be any dispute between the two parties, arbitration shall be entered into before pursuing the matter in the court of law;
xviii) Commencement of agreement. This agreement shall be deemed effective on and from the date of commencement of the service by Hillocc Pty Ltd or from the date the signed Project Confirmation Sheet is received by Hillocc Pty Ltd;
xix) The work of Hillocc Pty Ltd is copyright and cannot be reproduced or copied in any form by any means without the written permission of Hillocc Pty Ltd. Hillocc Pty Ltd hereby reserves their rights of attribution and integrity of authorship as prescribed by the Copyright Act 1968 (Cth) as amended from time to time;
xx) You acknowledge and agree that by signing this Project confirmation, you become personally responsible for the payment of our fees, all Council fees and charges and any fees incurred by any third party consultant engaged on your behalf as part of this Proposal regardless of whether you are the owner of the land forming part of the Project or otherwise. You agree to indemnify Hillocc Pty Ltd and to keep Hillocc Pty Ltd fully indemnified for any such Council’s fees and charges and third parties consultant fees;
xxi) You agree that all fees and charges specified in this Proposal are exclusive of GST. A reference to GST means any Goods or Services Tax or similar tax imposed by the Commonwealth of Australia other than any penalty, fine, interest or like payment.
Any amount payable under this agreement for a taxable supply shall be the amount of consideration for the supply set out in the applicable invoice rendered plus any amount of GST payable in relation to that supply.
Where any consideration for the supply of goods, services, real property or other things is ascertained by reference to any costs or expense incurred by a party, that cost or expense shall be calculated by deducting from the actual cost or expense the amount of any GST input credit that party can claim in respect of the costs or expense, but nothing in this sub-clause shall limit or affect the operation of the previous sub-clause.
xxii) Any amendment to this agreement must be made in writing, or if agreed verbally between us, must be confirmed in writing within a reasonable time after such verbal agreement to amend or vary this agreement;
xxiii) You hereby charge all your property, both real and personal, in favour of Hillocc Pty Ltd as security for payment of all fees and charges including third party consultant fees and charges and Council fees, that are payable by you pursuant to this agreement;
xxiv) You acknowledge that Hillocc Pty Ltd is an independent contractor without authority to bind you except as specified in this agreement and neither Hillocc Pty Ltd nor their personnel, or employees are agents of you by virtue of this Agreement;
xxv) Subject to this clause, any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.
Where legislation implies in this agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this agreement. However, the liability of Hillocc Pty Ltd for any breach of such condition or warranty shall be limited, at the option of Hillocc Pty Ltd, to one or more of the following:
(a) if the breach relates to goods:
(i) the replacement of the goods or the supply of equivalent goods;
(ii) the repair of such goods;
(iii) the payment of the cost of replacing the goods or of acquiring equivalent goods; or
(iv) the payment of the cost of having the goods repaired; and
(b) if the breach relates to services:
(i) the supplying the services again; or
(ii) the payment of the cost of having the services supplied again.
xxvi) Each person who signs this agreement, hereby warrants that they are authorised to engage Hillocc Pty Ltd to provide the services listed in this Proposal. You agree that Hillocc Pty Ltd may assume that by signing this agreement you have such authority, regardless of whether or not you own the land to which this Proposal relates or not. Further, where you are not the owner of the land to which this Proposal relates, then you are the authorised agent of the land owner and have lawful authority to bind the land owner to the terms of this agreement. Where more than one of you have signed this agreement, then you agree to be bound by the terms of this agreement both jointly and severally;
xxvii) You hereby authorise Hillocc Pty Ltd and its authorised representatives to enter upon the land the subject of this Proposal for the purposes of performing the services and the works described in this Proposal. Further, you agree to make the land available to Hillocc Pty Ltd and its authorised representatives for access at all reasonable time during the currency of this agreement.