General

1. Articulate Access Pty Ltd (“Consultant”) applies terms and conditions to the purchase of our services (“Services”). These terms and conditions cover the scope of services described within the accompanying Service Agreement (“Agreement”) to be provided together with such other services as may be agreed from time to time.

2. A pre-agreed Agreement between the Consultant and the client will determine the type, scope and fee for services to be provided by the Consultant to meet client, statutory and regulatory requirements.

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General Terms and Conditions

1. The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client agrees to and accepts the Service Agreement.

2. The Consultant shall deliver all Services:

   • with such skill, care and diligence as is generally exercised by competent members of the consulting profession performing services of a similar nature, at the time the Services are provided.

   • For a reasonable fee and payment terms as pre-agreed in the Agreement between Articulate Access and the Client.

   • Within a reasonable timeframe as pre-agreed in the Agreement between Articulate Access and the Client.

3. It is the responsibility of the Client to:

   • Ensure the project specific information within the Agreement is accurate and meets the Clients needs.

   • Provide at no cost to the Consultant, all information, documentation, and other particulars as required to perform the Consultant’s work. The Consultant is entitled to rely on such information, documents and other particulars as are provided by the Client pursuant to or in connection with this Agreement.

   • Provide reasonable access to sites that are required to order to perform the Consultant’s work.

   • Make payment to the Consultant all fees and disbursements as set out in the Agreement together with any other amounts set out in other services agreed to be provided.

   • Pay reasonable adjustments to reflect the additional costs, expenses, liabilities, losses or other amounts incurred or suffered by the Consultant in the performance of the Services and arising out of or in connection with any event or matter beyond the Consultant’s control; and

   • Pay any additional amount for the GST incurred by the Consultant in relation to the supply of the Services ("GST").

4. The Consultant may claim payment in accordance with the times set out in the accompanying letter or, if no time is set out, monthly in arrears.  The Client must pay to the Consultant, without set-off or deduction:

   • the amount payable under this Agreement for the Services provided during the relevant period, within 30 days of the Consultant’s invoice; and

   • the GST payable under this Agreement for the Services provided during the relevant period, within 30 days of receiving a valid tax invoice.

5. If the Client does not pay the Consultant in accordance with this Agreement then, without prejudice to any other rights or remedies the Consultant may have, interest will be payable from the date of invoice until payment at a rate per annum equal to the Unsecured Personal Overdraft Rate as most recently published by Bank of Melbourne, plus 3% per annum.

6. Where the Client does not pay the Consultant in accordance with this Agreement, the Consultant reserves the right:

   • Cease work on the project until payment has been made; or

   • Cancel the project and notify relevant stakeholders that they are no longer working on the project.

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Liability

1. To the maximum extent permitted by law:

   • subject to paragraphs (b), (c) and (d) below, the Consultant’s liability to the Client arising out of or in connection with this Agreement (including the performance or non-performance of the Services), whether under the law of contract, in tort, in equity, under statute or otherwise, shall be limited in aggregate to $200,000.

   • (b) the Consultant is not liable to the Client or any third party in respect of any indirect, consequential or special losses (including loss of profit, loss of business opportunity and payment of liquidated sums or damages under any other Agreement);

   • (c) the Consultant shall be deemed to have been discharged from all liability in respect of the Services whether under contract, in tort, in equity, under statute or otherwise, at the expiration of the period specified in the accompanying letter, or if no date is specified, on the expiration of 3 years from the completion of the Services;

   • (d) if, and to the extent that, any of this clause is void as a result of section 64 of the Competition and Consumer Act 2010  (Cth) in Schedule 2, then the Consultant’s liability for a breach of a condition or warranty is limited to:

• the supplying of the relevant Services again; or

• the payment of the cost of having the Services supplied again.

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• The Consultant is covered by a limited liability scheme, approved under Professional Standards Legislation.

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Governing Law

1. Subject to the Client complying with its obligations under the Agreement, the Consultant grants to the Client a non-exclusive, royalty-free and irrevocable licence to use (and allow others to use) any intellectual property (including all drawings, reports, specifications, bills of quantity, calculations and other documents, including "works" as defined in the Copyright Act 1968 (Cth) created or produced by the Consultant) arising out of provision of the Services ("IP Rights") for the purposes of completing the Project.  As between the Client and the Consultant, the ownership of the IP Rights vests in the Consultant.

2. The Agreement and any non-contractual matters between Articulate Access and the client are governed by the law in the Jurisdiction in which the project is situated. The client submits to the non-exclusive Jurisdiction of the courts of that place.

3. Neither the client nor the Consultant shall disclose to third parties or use for any purpose (other than providing or benefiting from the Services) any information provided by the other unless:

   • required by law;

   • the information is already generally known to the public; or

   • the other consents to the disclosure.

All documentation and materials containing confidential information provided by one party to the other shall be returned upon request.

1. Any dispute or difference ("Dispute) between the Client and the Consultant may be notified by a party to the other party and the parties shall:

   • firstly meet to negotiate, in good faith, resolution of the Dispute; and

   • secondly, if negotiation fails to achieve a resolution of the Dispute within 5 working days of the notification of the Dispute, attend mediation, administered in accordance with procedures as set out by the Institute of Arbitrators and Mediators Australia, 

   • provided that this provision shall not prevent the Consultant from instituting legal action at any time to recover moneys owing by the Client to the Consultant.

2. The Client may, without prejudice to any other rights or remedies it may have, by written notice served on the Consultant terminate its obligations under this Agreement:

   • if the Consultant is in breach of the terms of the Agreement and the breach has not been remedied within 28 days of a written notice served by the Client on the Consultant specifying the breach and requiring the breach to be remedied; or

   • upon the Client giving the Consultant 60 days' written notice of its intention to do so; or

   • if the Consultant informs the Client that it is insolvent, becomes bankrupt, or becomes subject to any official management, receivership, liquidation, provisional liquidation, voluntary administration, winding up or external administration ("Insolvency Event").

3. The Consultant may, without prejudice to any other rights or remedies it may have, by notice in writing served on the Client suspend its obligations under this Agreement:

   • immediately by written notice if the Client has failed to pay in accordance with this Agreement; or

   • if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 10 working days (or longer as the Consultant may allow) of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied.

4. The Consultant may, without prejudice to any other rights or remedies it may have, terminate its obligations under this Agreement:

   • if the breach referred to in clause 13(a) has not been remedied within 5 days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied; or

   • if the Client is in breach of any of the other terms of the Agreement and the breach has not been remedied within 28 days of a written notice served by the Consultant on the Client specifying the breach and requiring the breach to be remedied; or

   • upon the Consultant giving the Client 60 days' written notice of its intention to do so; or

   • if an Insolvency Event occurs in relation to the Client.

5. If the Consultant considers it appropriate to do so, it may, with the Client's prior approval, which shall not be unreasonably withheld or delayed, engage other consultants to assist the Consultant in specialist areas. The other consultant shall be engaged at the Client's risk, cost and expense, and on its behalf.

6. Neither party may assign, transfer or sublet any obligations under this Agreement without the written consent of the other.  Unless stated in writing to the contrary, no assignment, transfer or subletting shall release the assignor from any obligation under this Agreement.

7. In the interpretation of this Agreement, no rule of construction applies to the disadvantage of one party on the basis that it put forward this Agreement or any part of it.