By signing the acceptance form of our fee proposal or otherwise instructing us to accept orders from you, you:
1. Definitions
The following definitions apply unless the context requires otherwise:
(a) Agreement means the binding contract between Ratio and the Client comprising the Proposal and these Terms and Conditions.
(b) Background Intellectual Property means any intellectual property rights owned or licensed by Ratio prior to, or independently of, the Agreement, including Ratio’s methodologies, tools, templates, databases, systems and know-how.
(c) Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in the relevant State.
(d) Client means the person or entity named in the Proposal as the client, and includes a reference to “you” and “your”.
(e) Claim means any claim, action, proceeding, demand, cost (including legal costs on a full indemnity basis), expense, liability, loss or damage of any kind, whether arising in contract, tort (including negligence), statute or otherwise.
(f) Consequential Loss means any loss of revenue, loss of profit, loss of business opportunity, holding costs, financing costs, loss of data, indirect loss or consequential loss of any kind, whether or not such loss was foreseeable or the party had been advised of its possibility.
(g) Deliverable means any reports, plans, drawings, models, assessments, submissions, recommendations, advice, expert evidence or other work product prepared by Ratio specifically for the Client under this Agreement and described in the Proposal.
(h) Dispute Notice has the meaning given to it in clause 19(a).
(i) Fees means the fees and charges set out in the Proposal, as may be varied by agreement in writing between the parties from time to time.
(j) Force Majeure Event means any event beyond a party’s reasonable control including acts of God, pandemics, epidemics, natural disasters, war, terrorism, civil unrest, government action, strikes or industrial action, or failure of third-party infrastructure.
(k) GST has the meaning given by section 195-1 of the GST Act or any replacement or other relevant legislation and regulations.
(l) GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) (as amended).
(m) IP Claim means a Claim brought by a third party against the Client alleging that any Deliverable, as delivered by Ratio and used by the Client in accordance with this Agreement, infringes that third party’s Intellectual Property Rights.
(n) Insolvency Event means, in relation to a party, any one or more of the following: the party becoming insolvent, being placed into administration, receivership or liquidation, entering into a deed of company arrangement, making an assignment for the benefit of creditors, or ceasing or threatening to cease to carry on business.
(o) Intellectual Property Rights means all present and future intellectual property rights, including copyright, patents, trade marks, designs, trade secrets, confidential information, know-how and all other proprietary rights whether registered or unregistered.
(p) Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
(q) Proposal means the fee proposal or letter of engagement issued by Ratio to the Client to which these Terms and Conditions are attached or incorporated.
(r) Services means the professional and consulting services described in the Proposal, which may include any or all of the following disciplines provided by Ratio: planning advice and permit applications; transport engineering and planning; urban design and place-based design; waste management planning; landscape architecture; and civil engineering.
(s) Variation means any change to the scope of Services, Deliverables, programme or Fees agreed by the parties in writing after the date of the Agreement.
2. Interpretation
In this document, unless the context requires otherwise:
(a) the singular includes its plural and vice versa;
(b) words denoting any gender include all genders;
(c) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(d) headings are for convenience only and do not affect interpretation;
(e) a reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity;
(f) a reference to a party to this document includes its successors and permitted assigns;
(g) a reference to a particular day or time is to that day or time in the the relevant State;
(h) a reference to any document (including this document) is to the agreement or document as amended, supplemented, novated or replaced from time to time;
(i) a reference to a clause, paragraph, schedule or annexure is to a clause, paragraph, schedule or annexure in or to this document;
(j) a reference to dollars or $ is to Australian currency;
(k) a reference to legislation (including subordinate legislation) or a provision of it is to that legislation or provision as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(l) words such as including or for example do not limit the meaning of the words preceding them;
(m) nothing in this document is to be interpreted against a party solely on the ground that the party or its advisers drafted it; and
(n) unless expressed to the contrary in this document, if the day on or by which a party must do something under this document is not a Business Day, the party must do it on or by the next Business Day.
3. Priority
In the event of any inconsistency between these Terms and Conditions and the Proposal, these Terms and Conditions prevail to the extent of the inconsistency, unless the Proposal expressly states otherwise.
4. Ratio’s Services
(a) Ratio will perform the Services described in the Proposal using due care and skill and in a professional manner.
(b) The Services are provided as professional consulting services only. Nothing in this Agreement constitutes legal advice. Where legal advice is required, you should engage a qualified legal practitioner.
(c) Any timeframe for delivery of Services or Deliverables is an estimate only, unless the Proposal expressly states that a particular timeframe is of the essence. Ratio will use reasonable endeavours to meet agreed timeframes.
(d) Ratio may engage suitably qualified subcontractors or specialist consultants to assist in the delivery of Services without requiring the Client’s prior approval, provided Ratio remains responsible to the Client for the performance of those subcontractors in relation to the Services.
(e) Ratio’s Services, Deliverables and advice are current as at the date of delivery. Ratio has no obligation to update any Deliverable, advice or recommendation to account for changes in legislation, planning policy, standards, guidelines or other regulatory requirements occurring after the date of delivery, unless separately instructed and agreed.
(f) Other than the consumer guarantees that cannot be excluded under the Australian Consumer Law and those expressly stated in this Agreement, and to the maximum extent permitted by law, the Services are provided without any additional representations, warranties or guarantees, whether express or implied.
5. Client Obligations
(a) You agree to:
(i) promptly provide Ratio with all information, instructions, approvals, data, plans, specifications, access to sites and other materials reasonably required by Ratio to perform the Services;
(ii) ensure that all information and materials provided to Ratio are accurate, complete and not misleading;
(iii) make decisions and provide feedback within the timeframes reasonably requested by Ratio;
(iv) notify Ratio promptly of any matter that may materially affect the delivery of the Services or the suitability of any Deliverable;
(v) pay all Fees in accordance with this Agreement; and
(vi) comply with all applicable laws in connection with your engagement of Ratio and your use of the Services and Deliverables.
(b) Where access to any site or premises is required for the delivery of the Services, you are responsible for ensuring that Ratio’s personnel are granted safe and lawful access to those sites or premises, and that relevant workplace health and safety obligations are met. You must notify Ratio of any known hazards on or near any site prior to Ratio’s personnel attending.
(c) Ratio is not responsible for any delay in the delivery of Services or Deliverables, or for any deficiency in the Services, to the extent that such delay or deficiency is caused or contributed to by your failure to comply with your obligations under this clause.
6. Reliance on information
(a) Ratio will rely upon the accuracy, completeness and currency of all information, documents, data and instructions provided by you or by any third party on your behalf. Ratio is not obliged to independently verify information provided to it unless expressly agreed in the Proposal.
(b) If any information provided to Ratio is inaccurate, incomplete or misleading, Ratio accepts no responsibility for any consequent errors, omissions or deficiencies in the Services or Deliverables, and additional fees may be payable for any remediation required.
(c) If, in the course of performing the Services, Ratio identifies that information previously provided by you is inaccurate, incomplete or has changed, Ratio will notify you as soon as reasonably practicable. Any additional work required to address such circumstances may be subject to a Variation.
7. Deliverables
(a) All Deliverables produced by Ratio are prepared for the specific purposes described in the Proposal and for the sole benefit of the Client (or such other parties as Ratio expressly agrees in writing).
(b) Subject to clause 12, the Client assumes all risk associated with the use of, and decisions made in reliance upon, any Deliverable. You acknowledge that:
(i) Deliverables are not guarantees of any outcome, including any planning, regulatory or development outcome;
(ii) the appropriateness of any Deliverable for any particular purpose, site condition or regulatory context is a matter for your independent assessment;
(iii) you are responsible for all decisions made by you or on your behalf in connection with the Services and Deliverables; and
(iv) Ratio has no responsibility for the manner in which you or any third party uses or applies a Deliverable.
(c) You must not use any Deliverable for any purpose other than the purpose for which it was prepared, without Ratio’s prior written consent. Where you seek to use a Deliverable for an alternative or extended purpose, Ratio may agree to confirm the suitability of the Deliverable for that purpose, subject to such additional terms (including additional fees) as Ratio considers appropriate.
(d) No third party may rely upon any Deliverable without Ratio’s prior written consent. Ratio accepts no duty of care, and disclaims any liability, to any third party who relies upon a Deliverable without that consent, to the fullest extent permitted by law.
(e) If any Deliverable is provided in electronic or digital format, the Client accepts the risk of any data corruption, virus transmission or loss arising from electronic transfer, and is responsible for maintaining appropriate backups and verification processes.
8. Variations
(a) Any request by the Client to change the scope of Services, the nature or form of Deliverables, the programme, or to perform additional services not described in the Proposal must be made or confirmed in writing.
(b) Ratio is not obliged to perform any work outside the scope described in the Proposal unless a Variation has been agreed in writing. If Ratio performs out-of-scope work in good faith prior to a written Variation being formalised (including at verbal request), such work will be charged at Ratio’s standard rates or such other rates as agreed, and the Client agrees to pay for such work in accordance with this Agreement.
(c) Ratio will notify the Client as soon as reasonably practicable if circumstances arise that may give rise to the need for a Variation, including material changes in the scope of work required, third-party delays, or changes to regulatory requirements. A proposed notice of variation will specify the nature of the change, the proposed additional fees and any impact on programme.
(d) Where the Client does not agree to a Variation that Ratio considers reasonably necessary to complete the Services or deliver a Deliverable of acceptable professional standard, Ratio may limit the scope of Services accordingly and will not be liable for any deficiency arising from that limitation.
9. Fees and Payment
(a) You promise to pay our Fees on time and in full in accordance with this Agreement. You acknowledge that our Fees are not success fees and are payable in full regardless of the outcome of any planning application, report, permit application, tribunal proceeding or other process.
(b) Ratio will issue invoices upon delivery of the relevant Deliverables and completion of your reasonable review period of 10 Business Days, or as otherwise set out in the Proposal. Progress invoices may be rendered monthly as deemed appropriate by Ratio.
(c) Payment is due within 14 days of the invoice date, unless the Proposal expressly states otherwise.
(d) If any amount is not paid by the due date, Ratio reserves the right to apply interest on the outstanding amount at a rate of 1.5% per month (calculated daily) from the due date until the date of payment in full, as a genuine pre-estimate of Ratio’s administrative costs and losses arising from late payment. Interest must be paid at the same time as the overdue principal amount.
(e) You agree to indemnify Ratio for all reasonable costs incurred by Ratio in recovering any outstanding amounts, including legal costs on a full indemnity basis and debt collection costs.
(f) You must pay all amounts due under this Agreement without set-off, counterclaim or deduction, unless required by law.
(g) If any amount remains unpaid for 30 days or more after the due date, Ratio may, after providing you with not less than 5 Business Days’ written notice, suspend performance of the Services until all outstanding amounts (including accrued interest) are paid in full. Suspension of Services for non-payment does not constitute a breach of this Agreement by Ratio and does not affect your obligation to pay all amounts outstanding. Ratio will not be liable for any delay or loss arising from a suspension under this clause.
(h) If any amount remains unpaid for 60 days or more after the due date, and remains unpaid following the suspension procedure described in clause 9(g), Ratio may cease work permanently on 5 Business Days’ written notice. Cessation of work does not affect any accrued rights of either party, and you remain obliged to pay all amounts outstanding up to the date of cessation.
10. GST
(a) Unless otherwise stated, all amounts stated in the Proposal are exclusive of GST.
(b) You must pay GST on any taxable supply made by Ratio to you, in addition to the relevant Fees (excluding GST), at the applicable rate, at the same time and in the same manner as you are required to pay the relevant Fees.
(c) Ratio will issue a valid tax invoice at or before the time of payment.
11. Intellectual Property
(a) Subject to clause 11(c) and payment of all Fees in full, Ratio assigns to the Client all Intellectual Property Rights in Deliverables created specifically for the Client under this Agreement.
(b) Until all Fees are paid in full, Ratio retains ownership of all Intellectual Property Rights in all Deliverables. Prior to payment in full, the Client has no right to use, reproduce, communicate, adapt, modify or otherwise deal with any Deliverable, except as expressly authorised in writing by Ratio.
(c) Ratio retains all Intellectual Property Rights in its Background Intellectual Property. Nothing in this Agreement transfers ownership of Background Intellectual Property to the Client.
(d) Subject to payment of all Fees in full, Ratio grants the Client a royalty-free, non-exclusive, non-transferable licence to use Ratio’s Background Intellectual Property to the extent embedded in, or necessary for the Client to enjoy the benefit of, the Deliverables, solely for the purpose for which the Deliverables were prepared.
(e) You agree that Ratio may use the Deliverables for its own internal business purposes, including professional development, quality assurance, and marketing (subject to any applicable confidentiality obligations and the removal of any information that identifies the Client, unless the Client consents otherwise).
(f) Where any third-party intellectual property is incorporated into Deliverables (such as mapping data, software outputs or specialist reports), Ratio will use reasonable endeavours to identify any applicable licence restrictions and bring them to your attention. Ratio does not warrant that use of such third-party material beyond the permitted purpose will not infringe third-party rights.
(g) If a Deliverable is, or in Ratio’s reasonable opinion is likely to become, the subject of an IP Claim, Ratio may at its election and expense:
(i) procure the right for the Client to continue using the relevant Deliverable;
(ii) modify the Deliverable so that it no longer infringes; or
(iii) if neither (i) nor (ii) is reasonably practicable, accept return of the Deliverable and refund the portion of the Fees attributable to that Deliverable.
(h) Clause 11(g) sets out the Client’s sole and exclusive remedy in respect of any IP Claim.
12. Limitation of Liability
(a) To the extent permitted by law, if any of the consumer guarantees under the Australian Consumer Law apply to the Services, Ratio’s liability for a failure to comply with such a guarantee is limited, at Ratio’s election, to:
(i) the supply of the relevant Services again; or
(ii) the payment of the cost of having the relevant Services supplied again.
(b) Nothing in this Agreement excludes, restricts or modifies any consumer guarantee, right or remedy conferred by the Australian Consumer Law or any other applicable law that cannot be lawfully excluded, restricted or modified.
(c) Subject to clauses 12(a) and 12(b), Ratio’s aggregate liability to the Client for any and all Claims arising out of or in connection with this Agreement (whether in contract, tort including negligence, breach of statutory duty, or otherwise) is limited to the total Fees paid by the Client to Ratio under this Agreement in respect of the Services to which the relevant Claim relates.
(d) To the extent permitted by law, neither party will be liable to the other for any Consequential Loss arising out of or in connection with this Agreement, however caused, even if the party has been advised of the possibility of such loss.
13. Indemnity
(a) Subject to clause 12, you agree to indemnify, defend and hold harmless Ratio and its officers, employees, agents and subcontractors from and against any Claim arising from or in connection with:
(i) any breach by you of your obligations under this Agreement;
(ii) any inaccurate, incomplete or misleading information provided by you to Ratio;
(iii) your use of any Deliverable for a purpose other than the purpose for which it was prepared;
(iv) the reliance by any third party on any Deliverable where such reliance has not been expressly authorised by Ratio in writing; or
(v) any failure by you to comply with applicable laws.
14. Third Party Liability and External Factors
(a) Ratio is not responsible or liable for the acts, omissions or decisions of any authority, council, government body, tribunal, court or regulatory body.
(b) Ratio is not responsible or liable for the acts, omissions or errors of any third party, including architects, builders, engineers, surveyors or other consultants engaged by you or by others.
(c) Ratio is not responsible for errors, omissions or deficiencies in plans, specifications, documentation or advice prepared by third parties, including where Ratio has relied on such material in good faith in performing the Services.
(d) Ratio cannot and does not warrant or guarantee the outcome of any planning application, permit application, scheme amendment, development approval, expert evidence, tribunal proceeding or other regulatory process. Outcomes are subject to variables and discretions entirely outside of Ratio’s control.
15. Confidentiality
(a) Each party acknowledges that it may receive confidential information of the other party in connection with this Agreement.
(b) Each party must:
(i) keep the other party’s confidential information strictly confidential;
(ii) not use the other party’s confidential information for any purpose other than performing its obligations or exercising its rights under this Agreement; and
(iii) not disclose the other party’s confidential information to any person without the prior written consent of the disclosing party, except:
(A) to its officers, employees, agents and professional advisers who need to know it for the purposes of this Agreement and who are bound by equivalent confidentiality obligations;
(B) to the extent required by law, a court order or a requirement of any regulatory authority; or
(C) to the extent necessary to perform the Services.
(c) The obligation of confidentiality does not apply to information that:
(i) is or becomes publicly available other than through a breach of this Agreement;
(ii) was already known to the receiving party at the time of disclosure; or
(iii) is independently developed by the receiving party without use of or reference to the disclosing party’s confidential information.
16. Privacy
(a) By accepting this Agreement, you provide Ratio with Personal Information. Ratio handles all Personal Information in accordance with the Privacy Act 1988 (Cth) and its associated Australian Privacy Principles, and Ratio’s Privacy Policy (available at http://www.ratio.com.au/privacy-policy).
(b) Ratio uses your personal information for business purposes, including providing the Services to you, communicating with you about our Services, events, surveys and other promotional activities.
(c) Ratio may disclose your personal information to third party service providers acting on our behalf: communication services, CRM (customer relationship management system), IT and web hosting service providers, mailing houses, couriers, legal advisers, accountants, advertising agencies etc., and where required or authorised by law.
(d) You may request access to, or correction of, your Personal Information, or unsubscribe from marketing communications, by contacting Ratio in writing.
17. Force Majeure
(a) A party is not in breach of this Agreement and is not liable to the other party for any failure or delay in performing its obligations under this Agreement to the extent caused by a Force Majeure Event, provided that the affected party:
(i) notifies the other party in writing as soon as practicable after becoming aware of the Force Majeure Event;
(ii) uses all reasonable endeavours to minimise the impact of the Force Majeure Event and to resume performance as soon as practicable; and
(iii) keeps the other party regularly informed of the status of the Force Majeure Event and the steps being taken to address it.
(b) If a Force Majeure Event continues for more than 60 days, either party may terminate this Agreement by giving 10 Business Days’ written notice to the other party. In such case, you must pay all Fees for Services performed up to the date of termination, and Ratio will deliver all Deliverables completed up to that date upon receipt of payment.
(c) A party’s inability to perform a financial obligation is not a Force Majeure Event.
18. Term and Termination
(a) This Agreement commences on the date the Proposal is accepted and continues until the earlier of completion of the Services or termination in accordance with this clause.
(b) Either party may terminate this Agreement for any reason by providing not less than 10 Business Days’ written notice to the other party.
(c) Either party may terminate this Agreement immediately by written notice if:
(i) the other party commits a material breach of this Agreement and fails to remedy that breach within 10 Business Days of receiving written notice requiring it to do so; or
(ii) an Insolvency Event occurs in respect of the other party.
(d) Upon termination for any reason:
(i) you must pay all Fees accrued and owing up to the date of termination, including for any work in progress and reasonable costs and expenses reasonably incurred by Ratio up to that date;
(ii) upon receipt of payment in full, Ratio will deliver to you all Deliverables substantially completed as at the date of termination;
(iii) each party must promptly return or destroy the confidential information of the other party in accordance with that party’s reasonable instructions; and
(iv) clauses 7(b), 9, 12, 13, 14, 15, 16, 18(d), 19 and 21(i) survive termination or expiry of this Agreement.
(e) Ratio is not liable for any loss suffered by the Client arising from a termination of this Agreement in accordance with this clause.
19. Dispute Resolution
(a) If a dispute arises in connection with this Agreement, the party raising the dispute must give the other party a written notice setting out the nature of the dispute in reasonable detail (Dispute Notice).
(b) Within 10 Business Days of receiving a Dispute Notice, the parties must meet (in person, by phone or video conference) and use all reasonable endeavours to resolve the dispute by negotiation in good faith.
(c) If the dispute is not resolved within 20 Business Days of the Dispute Notice (or such longer period as the parties agree in writing), either party may refer the dispute to mediation administered by the relevant legal body or such other mediation body as the parties agree. The parties will share the costs of mediation equally, unless the mediator determines otherwise.
(d) If the dispute is not resolved at or within 15 Business Days following the conclusion of mediation, either party may commence legal proceedings.
(e) Nothing in this clause prevents a party from seeking urgent interlocutory relief from a court of competent jurisdiction.
(f) The parties must continue to perform their obligations under this Agreement during any dispute resolution process, unless the Agreement is terminated in accordance with clause 18.
20. Amendment to Terms and Conditions
(a) Ratio may amend these Terms and Conditions by providing the Client with not less than 30 days’ prior written notice of the proposed amendment. The Client may terminate this Agreement by providing written notice to Ratio at any time prior to the date on which the proposed amendment takes effect. If the Client exercises its right to terminate under this clause:
(i) termination takes effect on the later of the date of the Client’s termination notice or 5 Business Days after it is received by Ratio;
(ii) you must pay all Fees accrued and owing for Services performed up to the date of termination;
(iii) Ratio will, upon receipt of payment in full, promptly deliver all substantially completed Deliverables as at the date of termination; and
(iv) Ratio will refund any Fees pre-paid for Services not yet performed as at the date of termination.
(b) If the Client does not give a termination notice prior to the amendment taking effect, the Client is deemed to have accepted the amendment.
21. General provisions
(a) This document constitutes the entire agreement between the parties and supersedes any prior conduct, arrangement, agreement or understanding in relation to its subject matter.
(b) If a provision in this document is unenforceable or invalid in any jurisdiction, it will be ineffective in that jurisdiction to the extent that it is unenforceable or invalid. No provision in this document will otherwise be affected in any jurisdiction.
(c) This document may be executed in counterparts. Such counterparts, taken together, will be deemed to constitute the one document.
(d) The parties to this document consent to the use of electronic communications as a means of communicating about this document and the matters contained within it.
(e) A notice or other communication to or by a party under this document must be in writing and may be delivered in person, by email or by post to an address of the recipient specified in this document or any new address of the recipient known to the sender.
(f) Unless provided to the contrary in this document, a party is not capable of assigning, novating or encumbering any right or liability under this document without the prior written consent of each other party.
(g) Unless provided to the contrary in this document, no party is authorised to bind another party and nothing in this document is to be construed as creating an employment, agency, partnership, fiduciary or joint venture relationship between any of the parties.
(h) A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver. Any failure or delay by any party to exercise any power or right or rely on a remedy under this document does not operate as a waiver of that power, right or remedy.
(i) The laws of the State of Victoria govern this document. Each party submits to the non-exclusive jurisdiction of the courts exercising jurisdiction in the State of Victoria and waives any right to claim that those courts are an inconvenient forum.
