1.         The Consultant will perform the consulting services as described in the Proposal to this Agreement (“Consultant Services”).

2.         Despite any other term of this agreement or any legal requirement to the contrary, and to the extent permitted by law, that Consultant’s sole and overriding obligation is to perform the Consultant Services to the standard of skill, care and diligence as is generally exercised by competent members of the Consultant’s profession performing services of a similar nature at the time the Consultant Services are provided.

3.         The Client will take all steps reasonably necessary to enable the Consultant to perform the Consultant Services.

4.         The Client must at its own cost make available to the Consultant all information and documents as are necessary or reasonably required to carry out the Consultant Services. The Consultant is entitled to rely on such information and documents.

5.         The Client will pay to the Consultant:

a.       the fee and reimbursable expenses as set out in the Proposal to this Agreement (and as adjusted in accordance with clause 6); and

b.       an additional amount for the goods and services tax (“GST”) required to be charged by the Consultant in relation to the supply of the Consultant Services to the extent that amounts payable under this Agreement are not expressed to be GST inclusive.

6.         The fee and reimbursable expenses will be adjusted (“Variation”) to reflect:

a.          additions to or omissions from the Consultant Services as notified in writing by the Client and accepted by the Consultant:

b.          any change in legislative requirements and/or standards that apply in any way to the Consultant Services; and/or

c.          any change in the Consultant Services as is reasonably necessary.

7.         The amount of a Variation will be calculated by reference to applicable rates and amounts in the Proposal or, if none are specific, to reasonable rates and amounts.

8.         The Consultant may claim payment in accordance with the times set out in the Proposal, or if no time is set out, monthly in arrears, and upon termination of the Agreement. The Client must pay to the Consultant, without set-off or deduction, the amount payable (including GST) under this Agreement for the Consultant Services provided during the relevant period, within the times set out in Proposal, or if no time is set out in the Proposal, or if no time is set out, within 14 days of issuing of a valid tax invoice.

9.         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 of any outstanding amount from the date of invoice until payment at a rate per annum as stated in Proposal, or, if no rate is set out, a rate equal to the benchmark interest rate as most recently published by the Australian Taxation Office, plus 1% per annum.

10.      To the maximum extent permitted by law:

a.        subject to subclauses (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 Consultant Services), whether under the law of contract, in tort (including negligence), in equity, under statute or otherwise, will be limited in aggregate to the amount specified in Annexure A or $300,000 if no amount is specified;

b.        the Consultant is not liable to the Client in respect of any indirect, consequential or special losses including, but not limited to, loss of profit, loss of business opportunity, payment of liquidated sums or damages under any other agreement, and loss relating to any delay to the Project or enterprise the subject of the Consultant Services;

c.        the Consultant will be deemed to have been discharged from all liability in respect of the Consultant Services whether under contract, in tort (including negligence), in equity, under statute or otherwise, at the expiration of the period specified in Proposal, or if no date is specified, on the expiration of 3 years from the earlier of the date of completion of the Consultant Services or the date of termination of this Agreement;

d.          if, and to the extent that, any of this clause 10 is void as a result of section 64 of the Australian Consumer Law, then the Consultant’s liability for failure to comply with a guarantee under the law is limited to:

                             i.       the supplying of the relevant Consultant Services again; or

                           ii.       the payment of the cost of having the Consultant Services supplied again.

11.      Subject to the Client complying with its obligations under this Agreement, the consultant grants to the Client a non-exclusive, royalty-free and irrevocable licence to use (and allow others to use) the intellectual property for the deliverables of the Consultant Services created or produced by the Consultant (“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.

12.      Neither the Client nor the Consultant shall disclose to any third party or use for any purpose (other than for the purpose for which the Consultant Services are to be performed) any information including, but not limited to, business, financial, commercial and technical information provided by the other unless:

a.          required by law:

b.          the information is or becomes generally known to the public other than as a result of the breach of this Agreement;

c.          the disclosure is made to a party’s financial, legal or insurance advisers or to its insurers; or

d.          the other consents to the disclosure, such consent not to be unreasonably withheld.

13.      If a party claims that a dispute has arisen in connection with this Agreement (“Dispute”), it must deliver to the other party a notice in writing outlining the Dispute (“Dispute Notice”). The parties must:

a.          within 7 days of delivery of the Dispute Notice, meet to negotiate, in good faith, resolution of the Dispute;

b.          if they do not resolve the Dispute in accordance with subclause (a), then within 28 days of delivery of the Dispute Notice, attend mediation before a mediator appointed by the Resolution Institute and subject too procedures as determined by the mediator; and

c.          if they do not resolve the Dispute ;by mediation, be entitled thereafter to refer the Dispute to litigation.

This clause does not prevent the Consultant from taking legal action at any time to recover moneys owing by the Client to the Consultant.

14.      The client may, without prejudice to any other rights or remedies it may have, by written notice served on the Consultant terminate this Agreement:

a.          if the Consultant is in breach of the terms of the Agreement and the breach has not been remedied within 21 days of the Client serving on the Consultant a written notice (or such longer period as the Client ;may specify in that notice) providing details of the breach and requiring the breach to be remedied (“Breach Notice”); or

b.          upon the Client giving the Consultant not less than 28 days’ written notice of its intention to do so; or

c.          subject to the statutory stay provisions of the Corporations Act 2001, if the Consultant becomes bankrupt, or becomes subject to any official management, receivership, liquidation, provisional liquidation, voluntary administration, winding up or external administration (“Insolvency Event”).

15.      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:

a.          if the Client has breached its obligation to make a payment to the Consultant in accordance with this Agreement, and the payment has not been made in full within 7 days of the Consultant serving on the Client a Breach Notice (or such longer period as the Consultant may specify in that notice) in respect of that breach; or

b.          if the Client is in breach of any other term of the Agreement and the breach has not been remedied within 21 days of the Consultant serving on the Client a Breach Notice (or such longer period as the Consultant may specify in that notice) in respect of that breach.

16.      The Consultant may, without prejudice to any other rights or remedies it may have, terminate this Agreement:

a.          if the breach referred to in subclause 15(a) has not been remedied within 7 days of the Consultant serving on the Client a Breach Notice (or such longer period as the Consultant may specify in that notice (in respect of that breach; or

b.          if the client s in breach of any of the other terms of this Agreement and the breach has not been remedied within 21 days of the Consultant serving on the Client a breach Notice (or such longer period as the Consultant may specify in that notice) in respect of that breach; or

c.          upon the Consultant giving the Client not less than 28 days’ written notice of its intention to do so; or

d.          subject to the statutory stay provisions of the Corporations Act 2001, if an Insolvency Event occurs in relation to the Client.

17.      The Consultant may, with the Client’s prior written approval, which shall not be unreasonably withheld or delayed, engage other consultants to assist the Consultant in providing the Consultant Services.

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

19.      Notices referred to in this Agreement must be served at the Address for service stated on the first page of this Agreement.

20.      References to days in this Agreement refer to calendar days. In counting the number of days, the dates between
22 December and 10 January inclusive, and between Good Friday and Easter Monday inclusive, are not to be counted.

21.      Where the Proposal includes or refers to the Client’s Brief and the Consultant’s Fee Proposal, to the extent of any ambiguity, the Consultant’s Fee Proposal takes precedence.

22.      The law governing this Agreement is the law of the state or territory as specified in the Proposal A or, if none is specified, the law of the state or territory where the Consultant Services are substantially to be performed, and the parties submit to the exclusive jurisdiction of the courts of that state or territory.

23.      The Client may accept the terms of this Agreement by:

a.          signing and returning a copy of this document; or

b.          commencing or continuing to provide instructions and/or payment to the Consultant in relation to the Consultant Services.