General Terms and Conditions -

General Terms and Conditions of Supply

To the fullest extent legally permissible, all dealings between each customer (Customer, you, your) and Planwave Pty Ltd ACN 671 937 474 (we, us, our) relating to any and all services (Services) are subject to the following terms and conditions (these Terms) unless otherwise expressly agreed in writing.

1. Formation

1.1 The Agreement comprises of these Terms and a Fee Proposal.

1.2 The Agreement constitutes the entire agreement between us in regard to the Services supplied by us to you, and supersedes all prior understandings, arrangements and agreements with respect to the subject matter of the Agreement.

1.3 You can accept this Agreement by signing and returning the Fee Proposal and these Terms to us.

2. Services

2.1 We shall provide the Services described in the Fee Proposal together with such other services as may be agreed from time to time.

2.2 We shall provide the Services with such due care and skill as is generally exercised by members of the consulting profession performing Services of a similar nature, at the time the Services are provided and in accordance with the Australian Consumer Law.

2.3 Where variations to the Services are necessary due to local or state council directives, your instructions, or extended interactions with councils, contractors, government departments, beyond what was contemplated in the Fee Proposal, our standard hourly rates (or agreed fixed fee) will apply to the additional Services, along with any associated disbursement costs.

2.4 The Services will be carried out either at the project site or at any other sites reasonably required to perform the Services.

3. Your Responsibilities

3.1 You agree to:

(a) comply with this Agreement, our reasonable requests or requirements, and all applicable laws;

(b) provide all assistance, access, facilities, authorities, consents, licenses and permissions reasonably necessary to enable us to comply with our obligations under this Agreement or at law, including access to a site if necessary;

(c) promptly provide, at your own cost, all information, documents, and other details pertaining to your project requirements, as necessary for us to perform the Services. We reserve the right to rely on the information, documents, and other particulars you provide pursuant to or in connection with this Agreement;

(d) ensure reasonable access to allow us to fulfil our obligations, including the provision of the Services, where the locations of our work are beyond our control; and

(e) be responsible for complying with any applicable industry codes or standards.

4. Intellectual Property

(a) Subject to your compliance with the Agreement, we grant you a non-exclusive, royalty-free, and irrevocable license to use (and allow others to use) any intellectual property including drawings, reports, specifications, bills of quantity, calculations, and other documents, as defined in the Copyright Act 1968 (Cth), created or produced by us in the course of providing the Services (IP Rights). Ownership of the IP Rights vests in us.

(b) All plans, reports, calculations, or other documentation issued remain our property until your account has been settled to our satisfaction. In the event that the account remains unpaid for more than 14 days, we reserve the right to revoke the use of any issued documentation. Copyright and intellectual property rights in the mentioned items produced by us remain vested in us. Upon full payment of the fees for the Service, you shall receive a license to use the documents for the purpose of completing your intended project.

5. Limitation of Liability

5.1 To the maximum extent permitted by law:

(a) our liability to you arising out of or in connection with this Agreement (including the performance or non – performance of the Services), whether under statute, contract, equity, tort (including negligence), indemnity or otherwise, shall be limited in aggregate to the amount specified in the accompanying Fee Proposal, subject to paragraphs (b), (c) and (d) below;

(b) we are not liable to you in respect of any indirect, consequential or special losses (including loss of profit, loss of business opportunity, loss of goodwill, loss or reputation, and payment of liquidated sums or damages under any other agreement);

(c) our liability for any Liability under this Agreement will be reduced proportionately to the extent the relevant Liability was caused or contributed to by your acts or omissions (or those of your personnel); and

(d) if, and to the extent that, any part of this clause is void as a result of any legislation or law, then our liability for a breach of a condition or warranty shall be limited to the resupplying of the relevant Services or covering the reasonable costs of resupplying the Services.

6. Termination

6.1 This Agreement will terminate immediately upon written notice by:

(a) us, if:

(i) you (or any of your Personnel) breach any provision of this Agreement and that breach has not been remedied within 20 Business Days of being notified by us;

(ii) you fail to provide us with clear or timely instructions or information to enable us to provide the Services; or

(iii) for any other reason outside our control which has the effect of compromising our ability to provide the Services;

(b) you, if we:

(i) are in breach of a material term of this Agreement, and that breach has not been remedied within 20 Business Days of being notified by you; and

(i) is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, provisional liquidation, voluntary administration, winding up or external administration.

6.2 Upon expiry or termination of this Agreement:

(a) we are discharged from any further obligations under the Agreement;

(b) you agree that any payments made by you to us are not refundable to you, and you are to pay for the Services provided prior to termination, including Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under this Agreement;

(c) each Party agrees not to disparage or otherwise make any unfavourable statements or comments regarding the other Party, their Personnel, their clients, either directly or by implication, verbally or in writing; and

(d) each Party agrees to promptly return to (where possible),or delete or destroy (where not possible to return), any of the other Party’s property (including any Confidential Information).

6.3 We will retain your documents (including copies) as required by law or regulatory requirements. Your express or implied agreement to this Agreement constitutes your authority for us to retain or destroy documents in accordance with the statutory periods, or on expiry or termination of this Agreement.

6.4 Termination of this Agreement will not affect any rights or liabilities that a Party has accrued under it.

7. Charges and Payments

7.1 You agree to pay us the fees, reimbursable expenses and any pre-agreed travel expenses set out in the Fee Proposal.

7.2 Where the duration of the engagement extends beyond 12 months, our standard hourly rates are subject to an annual increase from July 1.

7.3 All charges are due and payable within 14 days of the date of invoice and are not refundable.

7.4 Overdue payments will attract interest at the annual rate of 3% above the prevailing base lending rate provided by our principal banker. You shall pay all costs and expenses incurred by us in pursuing any overdue payments.

7.5 Unless otherwise specified in the Fee Proposal, invoice for Services will be issued on a monthly basis, in accordance with mutually agreed milestones or upon the completion of project stages as outlined in the Fee Proposal.

7.6 In the event that a project is reactivated after a delay of six (6) months or more, we are entitled to charge a variation at the standard hourly rates (or an agreed fixed fee) for the time required for our team to re-familiarise themselves with the project.

7.7 If you fail to make a payment in accordance with this Agreement, we may, in our sole discretion refuse further supply under the Agreement and/or terminate the Agreement without notice.

7.8 If you believe in good faith that we have incorrectly invoiced you, you must contact us in writing within 14 days of the invoice date specifying the error or request for clarification of the invoice, failing which the invoice shall be deemed to be correct and shall be due for payment in full forthwith.

7.9 All charges are exclusive of taxes, duties, fees or other government levies or charges, including without limitation any GST, stamp duty or otherwise, which may be imposed on or in respect of Services provided under this Agreement. Such taxes, duties, fees or other government charges shall to the extent permissible by law be paid by you to us.

7.10 Unless otherwise agreed, the Fee Proposal will remain valid for 3 months after its date of issue, at which time we reserve the right to review the proposal.

8. Confidentiality

8.1 The receiving Party will treat Confidential Information with reasonable care and disclose only on a need to know basis or as permitted under this Agreement. The receiving Party will only use Confidential Information for the purposes of performing its obligations or as permitted under this Agreement. However, a receiving Party may disclose Confidential Information of the disclosing Party:

(a) if approved in writing by the disclosing Party;

(b) if required by law or regulation;

(d) as necessary to provide the Services to you.

In the case of subclause (b) and (c), the receiving Party will provide reasonable advance notice to the other party and provide reasonable assistance to limit the scope of the disclosure unless prohibited by law or regulation.

9. General

9.1 Amendment. This Agreement may only be amended by written instrument executed by the Parties.

9.2 Assignment, Novation and Sub-Agreements. A Party may only assign, novate, sub-license or sub-contract its rights and obligations under this Agreement with the prior written consent of the other party, which will not be unreasonably withheld.

9.3 Counterpart. This Agreement may be executed in one or more counterparts taken together constitutes the same agreement. The Parties may sign this Agreement using an electronic or handwritten signature, which are of equal effect, whether on original or electronic copies. This Agreement may be executed by means of such third-party online document execution service as we nominate.

9.4 Disputes. If a dispute arises, the parties must attempt to resolve it by discussion and negotiation, and through mediation before commencing legal proceedings. If the Parties cannot agree on a mediator, the dispute will be referred to the President, Australian Commercial Disputes Centre, Sydney to nominate a suitably qualified mediator. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction.

9.5 Entire Agreement. This Agreement constitutes the entire agreement between the parties for the subject matter referred to in this Agreement. Any prior arrangements, agreements, representations or undertakings are superseded. This Agreement is not to be construed as creating a joint venture, partnership or agency situation between the Parties and neither Party may represent such. Under no circumstances may any Party obligate or bind the other Party to any agreements, arrangements, contracts or understanding or represent that they have such authority.

9.6 Force Majeure. We will not be liable for any delay or failure to perform our obligations under this Agreement if such delay is due to any circumstance beyond our reasonable control.

9.7 Governing Law. This Agreement shall be governed by and construed according to the law of the State of New South Wales, Australia. The Parties irrevocably submits to the exclusive jurisdiction of the Courts of that state.

9.8 Notices. Any notice given under this Agreement must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.

9.9 Privacy. The Parties agree to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines (Privacy Laws). You consent to our use of your personal information in accordance with our Privacy Policy and agree that you are responsible for obtaining the consent of any third parties, whose personal information you provide to us, to use their personal information in accordance with our Privacy Policy.

9.10 Publicity. You agree that we may advertise or publicise the broad nature of our provision of the Services to you, which may include a brief factual description of the project including photos and images, on our website or in our promotional material.

9.11 Referrals. On request by you, we may provide you with contact details of third-party specialists. This is not a recommendation by us for you to seek their advice or to use their services. We make no representation or warranty about the third-party advice or provision of services, and we disclaim all responsibility and Liability for the third-party advice or provision of services, or failure to advise or provide services.

9.12 Severability. If any term of this Agreement is held invalid or unenforceable for any reason, the remainder of the term and this Agreement will continue in full force and effect.

9.13 Survival. The provisions of this Agreement which are capable of having effect after the expiration of this Agreement shall remain in full force and effect following the expiration of this Agreement.

9.14 Updates. We may update these Terms from time to time. The updated version will be indicated by an updated “Revised” date and the updated version will be effective as soon as it is accessible.

9.15 Waiver, Modification. Neither Party’s waiver of the breach of any provision constitutes a waiver of that provision in any other instance. This Agreement may not be modified nor any rights under it waived, in whole or in part, except in writing signed by the Parties.

10. Definitions

Australian Consumer Law means the statutory framework set forth in the Competition and Consumer Act 2010 (Cth).

Business Day means a day on which banks are open for general banking business in New South Wales, excluding Saturdays, Sundays and public holidays.

Confidential Information means information in any format (including oral information), which is not publicly known, that by its nature is confidential or in respect of which the party knows or ought to know is confidential; or information that is designated by the relevant party as confidential.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party or a Party to this Agreement or otherwise.

Privacy Policy means our privacy policy, which is available on our website and updated from time to time.

Fee Proposal means a quotation, work order or statement of work document setting out the services and the associated fees to be delivered to you.

Services refers to advisory, consulting and technical support or other services which you have ordered.

Last updated: October 2023

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