TRADE CONDITIONS
MC DEVELOPMENTS PTY LTD as trustee for THE MAC FAMILY TRUST trading as SIMPLE LAND SOLUTIONS (“SIMPLE LAND SOLUTIONS”) provides professional surveying services (“the services”) to the Client (as noted on the quote form) (“the Client”) under commercial arrangements in accordance with the following Standard Terms and Conditions.
The Client agrees to be bound by and comply with the Standard Terms and Conditions as outlined below.
The Client shall provide to SIMPLE LAND SOLUTIONS all necessary information and specifications relating to the Client’s requirements for the project (“Scope of Works”). The nature and extent of the services which SIMPLE LAND SOLUTIONS provides to the Client shall be determined on the basis of this Scope of Works. The Scope of Works shall be fully documented and agreed upon by SIMPLE LAND SOLUTIONS and the Client prior to the provision of the services.
SIMPLE LAND SOLUTIONS will provide a Project Team capable of providing the services specified in the Scope of Works. Members of the Project Team may vary from time to time subject to availability, requirements of other SIMPLE LAND SOLUTIONS projects; leave requirements, specific skill sets applicable to different stages of the project, and other factors which may arise from time to time.
The fees for the project will be based upon the hourly and/or fixed rates as agreed in writing between SIMPLE LAND SOLUTIONS and the Client in respect of the provision of equipment, labour and ancillary services.
Standard operating hours are between 06:00 and 18:00 Monday to Friday. Unless otherwise agreed between SIMPLE LAND SOLUTIONS and the Client, SIMPLE LAND SOLUTIONS will endeavour to complete all services during standard operating hours. If a situation arises which requires services to be provided outside the standard operating hours, reasonable attempts will be made by SIMPLE LAND SOLUTIONS to gain prior approval from the Client.
No amendment or variation of the SIMPLE LAND SOLUTIONS standard terms and conditions is valid and binding on SIMPLE LAND SOLUTIONS unless it is in writing and signed by a director or other authorised officer of SIMPLE LAND SOLUTIONS.
A provision of the SIMPLE LAND SOLUTIONS standard terms and conditions may not be waived except in writing and signed by a director or other authorised officer of SIMPLE LAND SOLUTIONS. No waiver or breach of any provision of the SIMPLE LAND SOLUTIONS standard terms and conditions shall constitute a waiver or breach of any other provision.
The Client shall reimburse SIMPLE LAND SOLUTIONS for all expenses reasonably and properly incurred in connection with the services provided to the project. Such disbursements shall include but not be limited to consumables, air travel and freight, accommodation, title and survey searching fees, data licence fees and the like.
The Client shall pay the fees, including GST without any set-off or counterclaim whatsoever, to SIMPLE LAND SOLUTIONS within thirty (30) days of the date of the SIMPLE LAND SOLUTIONS invoice. Invoices will be submitted by SIMPLE LAND SOLUTIONS on either a weekly, bi-monthly or monthly basis except for any undertaking, engagement or work requiring interaction, Authority to Act, documentation or lodgement with any regulatory or statutory body or organisation which shall be paid in full prior to the lodgements relating to these works.
In the event that the Scope of Works for the provision of services is amended, SIMPLE LAND SOLUTIONS shall be entitled to review the value of the fees previously agreed, and the Client shall be obliged to pay all additional costs associated with such amended scope as is agreed in writing between SIMPLE LAND SOLUTIONS and the Client. SIMPLE LAND SOLUTIONS will only accept variation work from the Client’s duly authorised representative. Where not instructed by the Client in writing, the SIMPLE LAND SOLUTIONS works docket shall effect the authorisation that variation works have been carried out as described. Variation charges apply for meetings and/or briefings, calculations, plan checking, issue of RFI’s, field survey work, quality assurance checks and processes, plans and/or sketches, delivery of survey data and filing. The minimum site visit fee will also apply for variations.
Goods and Services Tax (GST) shall be paid on the SIMPLE LAND SOLUTIONS fees in accordance with the current taxation laws. The amount of GST applicable to the fees will be identified separately in any fee proposal, and all Tax Invoices.
SIMPLE LAND SOLUTIONS shall be entitled to charge interest on the outstanding fees, the percentage rate being 12 percent per annum, calculated daily. Payment of the interest charges will not relieve the Client of the obligation to pay the outstanding fees. In relation to any Building and or Construction projects, all claims for payment made by SIMPLE LAND SOLUTIONS shall be subject to the Construction Contracts Act 2004 (WA) or the equivalent legislation in the state in which the Scope of Works is completed.
The Client agrees and irrevocably authorises SIMPLE LAND SOLUTIONS to apply, or set-off, against the Client’s account under this Agreement any sums which may be owed to the Client by any company within SIMPLE LAND SOLUTIONS group of companies.
All legal costs (on a full indemnity basis), charges, duties and other expenses incurred by SIMPLE LAND SOLUTIONS in respect of this Agreement or the securities or other documentation required hereunder or in relation to registering, maintaining or releasing any security interest, charge or caveat (including the cost of registering any financing statement or financing change statement), or incurred as a result of the Client failing to perform its covenants and obligations contained herein, shall be paid by the Client to SIMPLE LAND SOLUTIONS. The expenses include, but are not limited to; the commission payable to a mercantile agent or a debt collector to pursue or recover outstanding monies pursuant to this agreement and the liability to pay this commission arises at the time the recovery is placed in the hands of the debt collector. The Client agrees that it is liable for and will pay any stamp duty assessed on this document.
If the Client defaults in the due and punctual observance of all or any of its obligations or covenants under these terms and conditions, all monies owed by the Client to SIMPLE LAND SOLUTIONS shall become immediately due and payable.
SIMPLE LAND SOLUTIONS shall retain copyright in all proposals, tenders, documents, drawings, calculations, designs, plans and data (“the Data”) prepared by it in relation to the project, and in any works executed from them. SIMPLE LAND SOLUTIONS also reserves all present and future moral rights in all intellectual property in the Data, and in any works executed or to be executed from them. The Data must not be given, reproduced or disseminated, to any person, public authority, institution or organisation without the express permission of a duly authorised representative of SIMPLE LAND SOLUTIONS.
SIMPLE LAND SOLUTIONS shall grant the Client a license to use the Data in connection with the project, conditional upon the following:
Approaches made whether directly or indirectly to SIMPLE LAND SOLUTIONS personnel regarding employment opportunities with the Client or a related entity or associate of the Client (as defined in the Corporations Act 2001) during the provision of services by SIMPLE LAND SOLUTIONS to the Client, or within 12 months of cessation of those services, would place those individuals in breach of their SIMPLE LAND SOLUTIONS Employment Contracts. Consequently, irrespective of which party initiates discussions in this regard, the process for determining an equitable outcome for all parties shall be as follows:
In the event of a dispute between the parties, either party may serve a notice on the other detailing matters of dispute and requiring that senior representatives of each party meet and attempt to settle the dispute within five (5) working days. If the dispute is not settled by the senior representatives within ten (10) working days of the service of the notice, the parties shall agree to refer the dispute to mediation by a single mediator. Either party may initiate mediation, the costs of which shall be shared equally by the parties. If the parties cannot agree upon the identity of the mediator, the dispute shall be referred for mediation to a mediator nominated by the Institute of Mediators and Arbitrators.
SIMPLE LAND SOLUTIONS may terminate the Agreement entered into with the Client:
The Client may terminate its obligations under any Agreement entered into with SIMPLE LAND SOLUTIONS:
If the Agreement is terminated by either party, the Client is still obligated to pay all monies owed to SIMPLE LAND SOLUTIONS for services performed up to and including the date of termination pursuant to these terms and conditions as well as for the costs incurred by SIMPLE LAND SOLUTIONS in relation to demobilising personnel and equipment from site.
The project site must be prepared by the Client prior to any survey works commencing. Any delays or rescheduling costs incurred will be an additional charge under the terms and rates herein. Specifically, the Client must ensure that the working area is clear, dry, clean and free of materials, plant and equipment, and above all, a safe working environment. SIMPLE LAND SOLUTIONS shall not be providing task lighting, scaffold, stairs or the like on the designated project site.
Access arrangements to the site are to be the responsibility of the Client. The price quoted assumes that access to the site will be unhindered. The Client must ensure that the site is a safe working environment and complies with all occupational health and safety requirements and that any potential dangers are communicated to SIMPLE LAND SOLUTIONS before entry to the site. Any delays or rescheduling costs incurred will be an additional charge under the terms and rates herein.
Notwithstanding anything contained herein the Client acknowledges that no representation, warranty or condition, express or implied, is given by SIMPLE LAND SOLUTIONS that the services provided comply with the rules, regulations, laws and legislation of the place where the services are being provided and SIMPLE LAND SOLUTIONS will not be liable under any circumstance for any claims, losses or damages of any kind whatsoever (including but not limited to any indirect, special or consequential damage or injury to any person, corporation or other entity) by reason of or arising out of the services not complying with such rules, regulations, laws and legislation, or by reason of or arising out of any inaccuracy, error or omission in the information provided by or to SIMPLE LAND SOLUTIONS.
Where the Australian Consumer Law and other laws imply conditions or warranties in certain contracts and also give parties to those contracts certain other rights against suppliers of goods and services, to the extent that it is not lawful or possible to exclude them, then such conditions, warranties or other rights shall (but only to the extent required by law) apply to these terms and conditions and all other conditions, warranties or rights which might but for this provision be implied are hereby expressly excluded. Where the law implies any term or warranty into these terms and conditions which cannot be excluded, then the liability of SIMPLE LAND SOLUTIONS for any breach of such term will be limited in the manner permitted under section 64A of the Competition and Consumer Act 2010 to either supply of the services again or payment of the cost of having the services supplied again (as SIMPLE LAND SOLUTIONS may determine).
The Client hereby in favour of SIMPLE LAND SOLUTIONS charges and mortgages with the due and punctual payment of all monies due to SIMPLE LAND SOLUTIONS and the due and punctual and complete performance of all its liabilities and obligations herein or on any account whatsoever all its legal and equitable interest of whatsoever nature held in any real property both present and future and the Client hereby consents to SIMPLE LAND SOLUTIONS lodging a caveat or caveats noting its proprietary interest hereunder.
The Client grants a security interest in all of its present and after acquired property and in all of its present and future rights, title, estate and interest, whether legal and equitable, in relation to any personal property, including any debts owed to the Client, in favour of SIMPLE LAND SOLUTIONS to secure the performance of its liabilities and obligations hereunder or on any account whatsoever.
For the purpose of this clause and other relevant clauses in this Agreement “PPSA” means the Personal Property Securities Act 2009 and the expressions “accession”, “collateral”, “financing statement”, “financing change statement”, “security agreement”, “security interest”, “perfected security interest” and “verification statement” have the meanings given to them under, or in the context of the PPSA.
(i) If requested by SIMPLE LAND SOLUTIONS the Client must immediately sign any documents, provide all necessary information and do anything else required by SIMPLE LAND SOLUTIONS to ensure that the security interest created in SIMPLE LAND SOLUTIONS favour is a perfected security interest.
(ii) The Client must not grant any other security interest in favour of any party until SIMPLE LAND SOLUTIONS has perfected its security interest created under this Agreement.
(iii) The Client must not do or permit anything to be done that may result in the security interest granted to SIMPLE LAND SOLUTIONS ranking in priority behind any other security interest.
(iv) To the fullest extent permitted by the PPSA the Client agrees to contract out of the application of the provisions listed in sections 115(1) and 115(7) and the sections listed therein shall not apply.
(v)The Client hereby waives any rights the Client may otherwise have to:
(a) receive any notices or statements the Client would otherwise be entitled to receive under sections of the PPSA including for the avoidance of any doubt the sections referred to in sections 115(1) and 115(7) of the PPSA;
(b) apply to a Court for an order concerning the removal of an accession under section 97 of the PPSA;
(c) object to a proposal of the Client to purchase or retain any collateral under sections 130 and 135 of the PPSA; and
(d) receive a copy of a verification statement confirming registration of a financing statement, or a financing change statement, relating to any security interest created under this document.
The Client warrants and agrees that where it is, at the time of executing this document or at any time thereafter, a trustee of any trust (the “Trust”):- (a) to produce a stamped copy of the Trust deed (with all amendments) if and when requested by SIMPLE LAND SOLUTIONS; (b) that it has full power and authority to execute, or continue with its obligations under, this Agreement on behalf of the Trust as it is doing so in its individual capacity and in its several capacity as trustee; (c) that it shall be bound by the terms and conditions of this Agreement in its individual capacity, or further or alternatively, in its several capacity as trustee; and (d) that the assets of the Trust shall be available to meet payment of its obligations to SIMPLE LAND SOLUTIONS.
If the Client (a) defaults in the due and punctual observance of all or any of its obligations or covenants under this agreement; or (b) takes or shall have taken against it any action for its winding up, placement under official management, administration or receivership or is unable to pay its debts or anything analogous, or having substantially similar effect, occurs, then all monies owed by the Client to SIMPLE LAND SOLUTIONS shall become immediately due and payable to SIMPLE LAND SOLUTIONS without prejudice to any right or remedies open to it may:
(a) treat as discharged all or any obligation arising from any agreement with the Client;
(b) retain any security given or monies paid by the Client or available through the enforcement of any guarantee, security or bond and apply this in reduction of any sum of money owed or owing by the Client to SIMPLE LAND SOLUTIONS;
(c) appoint in writing any person or persons to be a receiver or receiver and manager of the property charged under clauses 23 and 24 above or any part of the charged property. The receiver so appointed shall be the agent of the Client and the Client shall be solely responsible for all acts and omissions by the receiver appointed under this clause and for the remuneration of the receiver. The receiver shall without the need for any consent on the part of the Client have all the powers conferred on a receiver under the Corporations Act 2001;
(d) exercise any other right or remedy available to it under the PPSA including to enforce the security interests created by this agreement.
If the Client comprises two or more parties each of those parties is jointly and severally liable on the covenants and obligations herein.
The relationship between SIMPLE LAND SOLUTIONS and the Client shall be governed and construed in accordance with the laws of the state in which the Scope of Works is completed and the parties shall submit to the jurisdiction of the Courts of that state and waives any right to object to any proceedings being brought in those Courts.
If any part of these terms and conditions become void or unenforceable then that part shall be severed to the intent that all parts that are not void or unenforceable shall remain in full force and effect. None of the terms and conditions will merge in or upon the execution of this or any other agreement, document, act, matter or thing and will continue to remain in full force and effect for so long as is necessary to give effect to these terms and conditions.
To give effect to its obligations under this Agreement the Client hereby irrevocably appoints any solicitor for SIMPLE LAND SOLUTIONS, from time to time, as its attorney to do any act or thing which they are required to do under this Agreement.
Where there is any inconsistency between these terms and conditions and any of the Client’s prior or subsequent terms and conditions, the terms and conditions herein prevail.
Neither party shall be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to, Acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery, and the party shall be entitled to a reasonable extension of obligations. This clause does not excuse payment of monies due.
By accepting these Terms and Conditions, the client also consents to SIMPLE LAND SOLUTIONS using your information with its dealings with credit reporting agencies in relation to your application for an account with SIMPLE LAND SOLUTIONS and the subsequent management of your account.
Should works not be completed to the satisfaction of the Client, a report for rectification must be made within 30 days of completion or liability will not be accepted by SIMPLE LAND SOLUTIONS and payment for services will be pursued.
If you are signing on behalf of a company, you represent that you are duly authorised to represent such company and accept these Terms and Conditions on behalf of such company. If you are entering into these Terms and Conditions on behalf of a company, the terms “you” and “your” in these Terms and Conditions mean your company and all of its employees.
We provide professional services for a range of valued clients, including private landowners, developers, architects, designers, property investors, engineers, residential and commercial builders, and real estate agents. We take pride in offering our clients a quality service that can be tailored to meet your needs.
Balcatta WA 6021, Australia
Office Hours: By appointment only.
Copyright © 2020 Simple Land Solutions. ABN 78 653 403 577 Terms and Conditions
