Terms & Conditions

1. AGREEMENT

(a) These Terms of Trade accompany a Statement of Work signed between the party identified on that document as the customer (Customer) and Urban & Co. Design Pty Ltd ACN 622 971 484 (Supplier).

(b) The parties have executed the Statement of Work with the intention of incorporating all of these terms and conditions and for the Statement of Works and these terms to function as a separate agreement from any other documents titled statement of work between the parties.

(c) The parties agree each Statement of Work signed or accepted by the parties incorporates all of these terms and comprises a separate and distinct agreement from any other document tiled or described as a “Statement of Work” entered into between the parties. Each Statement of Work constitutes a separate agreement (Contract).

(d) This Contract prevails over any inconsistent terms in any document of the Customer. The provisions of the Statement of Work prevail over the provisions of these Terms of Trade to the extent of any inconsistency.

(e) If the Customer places an order for a Deliverable, accepts performance of the Services, makes any payment or performs any of this Contract, the Customer is taken to have accepted this Contract.

(f) A Customer is responsible for the actions and obligations of any Affiliate of the Customer.

(g) This Contract is subject to, and the Services will comply with, all Applicable Laws.

2. SERVICES

(a) The Supplier must perform the Services to a standard reasonably expected from a competent Supplier professional.

(b) The Supplier will make all reasonable efforts to comply with delivery times, but any delivery time Supplier gives the Customer is only an estimate. Supplier is not liable to the Customer for any loss or damage (including any consequential loss or damage) arising from delay or late performance.

(c) The Customer must still accept and pay for the Services even if there is a delay in the performance of the Services or Supplier completes performance late.

(d) The Supplier’s performance of the Services may be delayed due to the Customer’s acts or omissions, by third-parties, or due to factors beyond the Supplier’s control. In such instances, the Supplier will not be liable for any delay or loss, and the Supplier is entitled to additional fees on the Price (pursuant to its usual commercial rates) and a reasonable extension of the delivery times.

(e) The Customer must comply with any reasonable direction of the Supplier in relation to the Services and must provide reasonable assistance, including providing any Customer information or material in relation to the Services or Deliverables and answering any questions the Supplier may have (Customer Material). Unless otherwise stated, the Customer Must provide all Customer Material within 14 days of being requested to do so.

(f) The Supplier may perform the Services in instalments. Each instalment must be treated as a sale under a separate contract. If Supplier fails to perform any instalment, the Customer must still accept and pay for the remaining instalments. If the Customer fails to pay for any instalment, Supplier may treat the default as a breach of contract relating to each other instalment.

(g) The Supplier will make all reasonable efforts to achieve any development approvals or other approvals, however the Customer acknowledges that these objectives depend on third- parties’ and are not solely within the Supplier’s control. The Supplier will not be liable for the failure to obtain any approval, unless the Supplier is proven to have been negligent or reckless.

3. VARIATION

(a) The Supplier is only required to perform the Services and provide the Deliverables pursuant to the Statement of Work. If the Customer wishes to vary the Services or Deliverables in any way, the Customer must submit all requests for variations as soon as possible. The Supplier is not obligated to comply with any variation request. All variations must be agreed in writing by the Supplier and form a part of this Contract. The Supplier is entitled to adjust the Price (on its commercial rates) to account for any accepted variation.

4. ACCEPTANCE

(a) Upon the delivery of any Deliverable, the Customer must thoroughly inspect the Deliverable within 10 Business Days and determine whether it accepts or rejects it based on the Statement of Work and the Customer’s disclosed requirements.

(b) If accepted, the Supplier will have no further liability in relation to the Deliverable and is not responsible for any alleged defects.

(c) If rejected, the Customer will provide the Supplier with a notice of the defects or issues with the Deliverable. The Supplier may, at its sole discretion:

(i) comply with the notice and make the requested changes at its own cost (and submit for acceptance);

(ii) make the requested changes at its usual market rates (and submit for acceptance); or

(iii) or terminate the agreement.

5. PRICE AND COSTS

5.1 Unless the Supplier otherwise agrees in writing, the cost of the Services will be the Price set out in the Statement of Work plus any reasonable out of pocket expenses and disbursements. Any concession or discount to the Price which Supplier provides to the Customer must be set out in writing and is conditional on the Customer’s full compliance with this Contract.

5.2 The Price is subject to adjustment (including a proportional adjustment for fixed costs and profit) for any variation in:

(a) the cost of labour, material or transport;

(b) exchange rates, customs duty, freight or insurance;

(c) suppliers’ or specialist consultant prices;

(d) the amount of work required to perform the Services due to a variation in specification approved by the parties; and

(e) any other charges or disbursements affecting the cost of providing the Services.

5.3 All disbursements, materials, specialists, experts, and out of pocket expenses are the responsibility of the Customer and are not included in the Price.

5.4 If the Supplier suspends work on any order due to the Customer’s instructions or lack of instructions, the Supplier may increase the Price to cover any extra expense or cost incurred (including a proportional adjustment for fixed costs and profit, and any loss of business opportunity for the Supplier).

6. DEFAULT AND TERMINATION

(a) The Customer is in Default if the Customer:

(i) breaches this Contract (including payment of any part of the Price or failing to provide any Customer Material) and fails to remedy the breach to the Supplier’s satisfaction within 7 days’ written notice by the Supplier;

(ii) commits an act of dishonesty, or a criminal offence which in the reasonable opinion of the Supplier is likely to bring the Supplier into disrepute;

(iii) commits a breach of any statutory, legal or regulatory requirement of which the Customer becomes aware and which, if appropriate, is not remedied within a reasonable time to the satisfaction of the Customer; or

(iv) suffers an Event of Insolvency.

(b) In addition to any other right under this Contract or under law, if the Customer is in Default:

(i) the Customer must pay Supplier:

(A) interest at the rate equivalent to the interest rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983.

(B) all expenses including, without limitation, legal expenses, and all debt collection agency costs incurred by Supplier in enforcing Supplier’s rights under this Contract as a debt;

(ii) Supplier may suspend supplying the Services until payment is made, and such a suspension does not constitute repudiation;

(iii) Supplier may register and enforce any security interests it has under this Contract without further notice; and

(iv) Supplier may terminate the Contract by written notice.

(c) Upon termination for any reason, the Customer is obliged to pay the Supplier for any Deliverables or Services worked on (even if not delivered yet) and any other cost incurred, on a pro-rata basis.

7. INTELLECTUAL PROPERTY

(a) (Ownership) The Supplier retains all Intellectual Property Rights of ownership in the Deliverables any related materials. Upon full and final payment of all Fees, and provided there are no disputes between the parties, the Supplier will grant an exclusive, non- transferable, revocable licence to the Customer to use the Deliverables for the purposes of this Contract. This licence is revoked if any part of the Price is not paid or if the Customer brings any claim against the Supplier.

(b) (Workings) nothing in this clause obliges the Supplier to provide to the Customer any of its working files or works in progress. the Supplier retains copyright in all designs, drawings, models, plans, specifications, design details, photographs, brochures, reports, notes of meetings, CAD materials and any other materials provided by the Supplier in connection with this agreement.

(c) (Background IP) The Customer acknowledges that the Supplier owns or holds a license to use and sublicense the Background IP and that the Supplier retains all right, title and interest in the Background IP. Nothing in this Contract creates a transfer or license from the Supplier to the Customer of the Background IP (and if such a license exists it is for the solely for the duration of the agreement and only to the extent required by the Contract).

(d) (Supplier’s Warranty) the Supplier warrants that in providing the Services, it is not infringing any third party’s Intellectual Property Rights.

(e) (Customer’s warranty and indemnity) The Customer warrants that it is not infringing the Intellectual Property Rights or privacy rights of any third party in providing any Customer Material or associated materials to the Supplier and will indemnify the Supplier for any breach of this clause.

(f) (Customer’s indemnity) The Customer indemnifies the Supplier for the whole of any loss or claim (including legal costs of a solicitor of the Supplier’s choosing of defending any claim for infringement of Intellectual Property Rights) arising from a breach of clause 8.9 save to the extent that loss is caused by the Supplier’s acts or omissions. All Intellectual Property Rights arising in connection with the Services (including all methodology used by the Supplier) will immediately upon creation vest in Supplier and are, to the extent they can be, immediately assigned to Supplier by the Customer on their creation.

8. MARKETING

(a) The Customer acknowledges that the Supplier is entitled to showcase some of the Deliverables on the Supplier’s website, social media, portfolios and other platforms for marketing purposes.

9. SPECIALIST CONSULTANTS

(a) The Customer agrees the Services may require the services of specialist consultants. Specialist consultants are to be engaged directly and paid by the Customer.

(b) In relation to any specialist consultant engaged directly and paid by the Customer, the Customer will engage each such specialist consultant on the basis that:

(i) The Supplier is not responsible for the services provided by the specialist consultant;

(ii) The Supplier is responsible for coordination of the specialist consultant’s services; and

(iii) The Customer is to pay the specialist consultant all its fees and disbursements, but the Customer may seek the Supplier’s confirmation that the specialist consultant’s services invoiced have been provided.

(c) Where the Supplier and the Customer agree that additional specialist consultant services are required beyond those specified in this Contract, such additional specialist consultant’s may be:

(i) Engaged directly and paid by the Customer, subject to the terms outlined in this clause.

(ii) Engaged directly and paid by the Supplier, in which case the associated fees will be charged in addition to the Price.

10. LIMITATION OF LIABILITY AND INDEMNITY

(a) To the maximum extent permitted by law, the Supplier excludes all other warranties and conditions with the exception of those mandatory warranties pursuant to any Applicable Laws.

(b) Notwithstanding any other provision of this Contract and to the extent permitted by law:

(i) the Supplier excludes liability, including liability for negligence, for any consequential, indirect or special loss (including loss of chance to pursue a business opportunity, to make an investment or to effect a sale to a third party);

(ii) the Supplier’s total aggregate liability (including liability for negligence) under or in any way related to this Contract or the Services is limited to the Price; and

(iii) all claims against the Supplier must be commenced in court within 6 months of the delivery of the final Deliverable otherwise the Supplier excludes all liability and the Customer is deemed to release the Supplier from any claim, liability or loss howsoever related to this Contract.

(c) To the extent permitted by law, the liability of Supplier and its employees or agents for a breach of any warranty or liability which by law cannot be excluded or restricted is limited, at Supplier’s option, to:

(i) the supplying of the Services again; or

(ii) the payment of the cost of having the Services supplied again.

(d) The Customer indemnifies Supplier from every liability, loss, damage, cost or expense directly or indirectly incurred or suffered by Supplier caused by or contributed to by any of the following:

(i) Supplier supplying the Services or complying with any instruction of the Customer about the Services;

(ii) the Customer’s failure to take any reasonable precaution to detect any matters in relation to which Supplier may become liable in any way (for example, under any Applicable Laws);

(iii) the Customer making any statement about the Services (for example, about their performance or characteristics) without Supplier’s approval;

(iv) any negligence or breach of duty by the Customer or any breach by the Customer of this Contract.

11. CONFIDENTIAL INFORMATION

(a) The parties agree to keep any information which can reasonably be thought of as such as strictly confidential and not disclose it or allow it to be disclosed to a third-party except with prior approval of the other party. This clause survives the expiry or termination of this Contract.

12. FORCE MAJEURE

(a) Supplier is not liable for failure to comply with this Contract, the Contract or an agreement for sale of Services if the failure (directly or indirectly) arises out of any circumstances which are not within Supplier’s reasonable control. If such circumstances occur, Supplier may delay or cancel performance of the Services or alter the Services to be performed.

(b) The circumstances that are taken to be beyond Supplier’s reasonable control include, without limitation, strikes, lock-outs, accidents, war, fire, flood, explosion, shortage of power, breakdown of plant or machinery, shortage of raw materials from normal source of supply, act of God or any order or direction of any local, state or federal government, government authority or instrumentality.

(c) Supplier is not obliged to remedy such circumstances. Supplier is especially not obliged to settle any strike, lock-out or any other kind of labour dispute.

13. GST ON CLAIMS

(a) If a payment to satisfy a claim or a right to claim under or in connection with this Contract (for example, for misleading or deceptive conduct or for misrepresentation or for a breach of any warranty or for indemnity or for reimbursement of any expense) gives rise to a liability to pay GST, the payer must pay, and indemnify the payee on demand against the amount of that GST.

(b) If a party has a claim under or in connection with this Contract for a cost on which that party must pay GST, the claim is for the cost plus all GST (except any GST for which that party is entitled to an input tax credit).

(c) If a party has a claim under or in connection with this Contract whose amount depends on actual or estimated revenue or which is for a loss of revenue, revenue must be calculated without including any amount received or receivable as reimbursement for GST (whether that amount is separate or included as part of a larger amount).

14. PERSONAL PROPERTY SECURITIES ACT 2009 (“PPSA”)

(a) In this clause, ‘PPSR’ means the Personal Properties Securities Register established under section 147 of the PPSA;

(b) The Customer acknowledges and agrees that this Contract:

(i) constitutes a Security Agreement within the meaning of the PPSA; and

(ii) creates an Security Interest within the meaning of the PPSA in all present and after acquired property (“Secured Goods”) as well as any Deliverable, to secure any all money owed by the Customer to the Supplier whether under this agreement or otherwise.

(c) The Customer undertakes to:

(i) promptly sign or provide any documents or information (such information to be complete, accurate and up-to date in all respects) which the Supplier may reasonably require to in order to register, perfect, amend or correct its security interest over the Secured Goods;

(ii) indemnify the Supplier for all expenses incurred in relation to our security interest over the Secured Goods;

(iii) not do anything which somehow affects the Supplier’s security interest over the Secured Goods in any way without its prior written consent.

(d) The parties agree that all of the Customer’s rights under sections 96, 125, 142, 143 and 157 of the PPSA are waived.

(e) The Supplier is not required to give any notice or statement under the PPSA (including a notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

15. CHARGE

(a) The Customer hereby charges with payment of all moneys and compliance with all obligations owed by the Customer to the Supplier under this Contract all beneficial interest (freehold and leasehold) in real property, held now or in the future by the Customer. The Customer agrees that if demand is made upon it, him or her by the Supplier, the Customer will immediately execute a mortgage in registrable form. The Customer unconditionally consents to the Supplier lodging a caveat or caveats noting its interest pursuant to this equitable mortgage. The Customer irrevocably and by way of security appoints the Supplier or any director of the Supplier to be its true and lawful attorney to execute and register such instruments, including and without limiting the generality of the foregoing, executing and registering a mortgage over any real property. The Customer authorises the attorney appointed pursuant to this clause to enter into conflict transactions within the meaning of the Powers of Attorney Act 1998.

16. PRIVACY

(a) In accordance with the provisions of the National Privacy Principles in force at the date of signing this Contract (“the Privacy Principles”), the Customer permits the Supplier to collect private information about it and, if the Supplier considers it relevant to collecting overdue payments, the Customer agrees to the Supplier receiving from a credit reporting agency or a debt collecting agency a credit report containing personal information about the Customer.

(b) The Customer authorises the Supplier to give a credit reporting agency or a debt collecting agency personal information about the Customer relating to this Contract.

17. GENERAL

(a) The Customer agrees that the Supplier may recover any monies owed to it by the Customer by setting off such amounts (together with interest and costs of collection) against any sum owed to the Customer by the Supplier.

(b) All notices must be in writing. The parties agree to accept notices by email only. Notices are taken to be read on the day they are received, unless they are received after 5PM or not on a Business Day, in which case they are deemed to be received on the next Business Day.

(c) A right of Supplier may only be waived in writing, signed by Supplier. No other conduct of Supplier (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right. A waiver of a right by Supplier on one or more occasions does not operate as a waiver of that right if it arises again. The exercise of a right by Supplier does not prevent any further exercise of that right or of any other right.

(d) This Contract is governed by the Laws of the State of New South Wales, Australia. The parties submit to the exclusive jurisdiction of the courts of NSW

(e) Any right that Supplier may have under this Contract is in addition to, and does not replace or limit, any other right that Supplier may have.

(f) Any provision of this Contract which is unenforceable or partly unenforceable (for example, because of any inconsistent Applicable Laws) is, where possible, to be severed to the extent necessary to make this Contract enforceable, unless this would materially change the intended effect of the Terms.

(g) The Customer may not assign any rights or obligations the Contract, except with the written consent of the Supplier.

(h) Each natural person signing this Contract represents that they have full authority to enter into this Contract on behalf of the respective party.

(i) This agreement constitutes the entire agreement of the parties about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter.

(j) Any dispute or difference whatsoever arising out of or in connection with this Contract shall be submitted to mediation in accordance with, and subject to, The Resolution Institute’s Mediation Rules.

18. INTERPRETATION

In this Contract:

(a) Affiliate means:

(i) in relation to a party which is a body corporate, any corporation, trust, partnership or other legal entity controlled by:

(A) the party;

(B) a wholly owned subsidiary of the party; or

(C) the ultimate holding corporation of any of them;

(ii) in relation to a party which is an individual, any entity in which the party has an interest in (whether as a shareholder, officeholder, beneficiary, trustee, appointer, employee and so on) or which the party exercises practical control.

(b) Applicable Laws means any relevant legislation, regulations, codes standards and specifications.

(c) Background IP means includes any of the following (i) Intellectual Property Rights the creation of which pre-dates this Contract; (ii) know-how of the Supplier relating to the performance of or delivery of the Services; and (iii) Intellectual Property Rights subject to an “open source” licence or available on the public domain; and (iv) boilerplate or precedent code or systems developed by Supplier independently from the performance of the Services.

(d) Contract means the Statement of work and these Terms of Trade.

(e) Customer means the owner or any person who agrees to receive the Services from the Supplier.

(f) Deliverables means documents and materials developed by the Supplier and delivered to the Customer as part of or in relation to the Services in any form or media, including (without limitation), drawings, plans, diagrams, designs, applications and reports.

(g) GST has the meaning given to that term in the GST Law.

(h) GST Law has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

(i) Insolvency Event means one or more of the following events

(i) an application is made, or a resolution is passed, to wind up the Customer;

(ii) a controller or administrator is appointed in respect of the Customer or any of its assets;

(iii) the Customer commits any act of bankruptcy within the meaning of the Bankruptcy Act 1966 (Cth); or

(iv) the Customer dies, ceases to be of full legal capacity or becomes incapable of managing its own affairs for any reason.

(j) Intellectual Property Rights means all statutory and other proprietary rights in respect of all intellectual or industrial property including all trademarks, patents, copyright, confidential information and all other intellectual property as defined by Article 2 of the Convention Establishing the World Intellectual Property Organisation of July 1967 and includes the drawings, plans, manuals, specifications, references guides, trade secrets, methodologies and other intellectual property, irrespective of whether it is registered.

(k) Price means the total price set out in the Statement of Work.

(l) Services means the services identified in the Statement of Work which the Supplier will provide to the Customer.

(m) Supplier means Urban & Co. Design Pty Ltd.

19. PERSONAL GUARANTEE

(a) Each person signing this Personal Guarantee (Guarantor) unconditionally and irrevocably guarantees all of the Customer’s obligations (including the payment of all monies) under all sections of this Contract.

(b) If the Customer defaults in the payment of any money under this agreement, the Guarantor must on demand immediately pay the Supplier the outstanding amount.

(c) If the Customer fails to perform or observe any of its other obligations     under     this     agreement,     or     if     the Supplier suffers any loss or liability whatsoever as a result of the Customer’s actions, the Guarantor must on demand immediately indemnify, keep indemnified and compensate the Supplier for that failure without any limitation.

(d) the obligations of the Guarantor under this Personal Guarantee are continuing obligations which will not be affected by any matter or thing (including without limitation, part payment or part performance by the Customer);

(e) the liability of the Guarantor to the Seller under this Personal Guarantee will not be affected or discharged by any matter or thing including (without limitation):

(i) the Supplier granting to the Customer or the Guarantor any time or other indulgence;

(ii) any lack of power by the Guarantor to give the guarantee and indemnity under this Personal Guarantee either in its own right or in the capacity in which it is purporting to act;

(iii) any compromise or settlement entered into between the Supplier and the Customer (including the Seller agreeing not to sue the Customer);

(iv) any other event, act, neglect, omission, or default on the Seller’s part as a result of which the Customer’s or the Guarantor’s liability to the Supplier would, but for this provision, have been affected or discharged; or

(v) an Insolvency Event occurring to any party.

(f) the obligations of the Guarantor under this Personal Guarantee are principal obligations and will not be treated as ancillary or collateral to any other obligation.

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