Terms and Conditions

1. ACCEPTANCE OF THESE TERMS AND CONDITIONS
The Client agrees to purchase the Goods and/or Services from Forge Developments on these Terms and Conditions.

Any instructions received by Forge Developments from the Client in relation to the following:
(a) acceptance of the Proposal;
(b) acceptance of the Fees;
(c) supply of Goods and/or Services; or
(d) the Client’s acceptance of Goods and/or Services supplied by Forge Developments, which includes acceptance via any electronic or online portal,

will constitute acceptance of these Terms and Conditions.

Where more than one Client has entered into this Agreement, each Client shall be jointly and severally liable for all payments of the Fees.

The Client shall give Forge Developments not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client or any change in the Client’s name and/or any other change in the Client’s details (including but not limited to, changes in the Client’s address, email address, or business practice). The Client shall be liable for any Loss or Claim incurred by Forge Developments as a result of the Client’s failure to comply with this clause 1.

2. TERM
This Agreement commences on the Start Date and continues for the Term unless terminated earlier in accordance with this Agreement.

3. SUPPLY OF GOODS AND SERVICES

Supply of Goods and Services
Forge Developments will provide the Goods and Services to the Client specified in the Proposal on a non-exclusive basis on these Terms and Conditions.

Times for Performance
(a) Forge Developments will provide the Client with the Services during the Term at such times as may be reasonably required by the Client and as specified in the Proposal.
(b) Unless otherwise agreed by the parties, Forge Developments will provide the Services to the Client during normal business hours on Business Days during the Term.

Independent Contractor
Forge Developments has the authorities, discretions and powers of an independent contractor in the supply of Goods and Services under this Agreement.

4. FEES

Fees and Invoicing
The Fees:
(a) payable by the Client to Forge Developments under this Agreement are specified in the Proposal and/or any invoice supplied by Forge Developments; and
(b) are inclusive of all costs and expenses incurred by Forge Developments and no further amounts are payable by the Client unless otherwise agreed in writing by the Client.

Invoicing
(a) Forge Developments shall invoice the Client for the Fees to its nominated address.
(b) An invoice is correctly rendered if:
(i) Forge Developments has complied with its obligations prescribed by the Proposal as the time for performance of the Services for which Forge Developments is entitled to payment of the amount specified in the invoice under this Agreement as at the date of the invoice; and
(ii) the invoice is a Tax Invoice in the proper form for the purposes of GST.
(c) If any part of any invoice is found to have been rendered incorrectly after payment has been made by the Client, then to the extent that it has been incorrectly rendered, any underpayment or overpayment will be recoverable by or from Forge Developments, as the case may be.

Payment of Fees
Subject to clauses 4.2(b), the Client must pay the Fees for the Goods and Services on the earlier of:
(a) a time specified in a Proposal; or
(b) within fourteen (14) days of an invoice date,

as the case may be.

Builder Appointment Fee commission payment
(a) In this clause 4.4, “Tender Fee” means a fee of two percent (2%) of the development project contract value that Forge Developments receives from the development project builder in respect of a development project.
(b) The Client acknowledges and agrees that:
(i) Forge Developments is entitled to be paid the Tender Fee from the development project builder (including whether the development project proceeds by via direct appointment, tender process or otherwise); and
(ii) the Tender Fee has been taken into consideration in the Fees calculated and shown in the Proposal.
(c) Forge Developments may, but is not required to, offset part or all of the Tender Fee from the Fees, and the Fees shall be adjusted accordingly.

5. DISPUTED INVOICES
If the Client disputes the amount of any invoice, the Client may, on written notice to Forge Developments, withhold or suspend payment of any disputed part of the invoice until the dispute is resolved.

The Client must:
(a) pay any non-disputed amounts in accordance with clause 4; and
(b) promptly pay any disputed amounts that are subsequently found to be correctly payable.

6. GST
The Fees are exclusive of GST.

If any supply under this Agreement is a Taxable Supply, then the party making the supply may, at the same time that an invoice is rendered for the agreed consideration for the Taxable Supply, recover the amount of GST payable on that Taxable Supply, subject to the issue of a valid Tax Invoice.

7. FORGE DEVELOPMENTS’ WARRANTIES
Forge Developments warrants, and it is a condition of this Agreement, that:
(a) it will comply with all Laws relating to the supply of the Services, and obtain all necessary consents and approvals to supply the Services;
(b) the supply of Goods and their use will not:
(i) contravene any Laws; or
(ii) infringe the rights of a a third party (including any Intellectual Property Rights); and
(c) it will ensure that the Client will obtain the benefit of all warranties given by all manufacturers, subcontractors, contractors and other relevant third parties in relation to the Goods.

Notwithstanding the provisions of clause 7.1, Forge Developments has no obligation under the warranties it gives in these Terms and Conditions for defects or non-conformance to the extent that the defect or non-conformance is caused by or occurs because of:
(a) misuse of, an accident to, improper storage of, or negligent or wrongful use of, any Goods; or
(b) inadequate or insufficient maintenance of any Goods.

8. CLIENT’S WARRANTIES
The Client declares and warrants that the information contained in all correspondences to Forge Developments is true, complete and correct.

The Client will indemnify Forge Developments and hold it harmless in respect of any Loss or Claim which Forge Developments may incur or suffer arising out of any failure or default in respect of the Client’s obligations under this clause 8.

Where the Client is a trustee, the Client:
(a) warrants that it has full power and authority for the benefit purposes and objects of the trust to enter the Agreement on behalf of the trust and that it shall be bound by these Terms and Conditions both personally and as trustee; and
(b) confirms that the trustee shall be liable for the account and that in addition the assets of the trust shall be available to meet payment of the Fees.

9. FORGE DEVELOPMENTS’ OBLIGATIONS

Obligations
Forge Developments will, subject to clause 11 below:
(a) supply the Goods and/or Services having regard to Laws and prevailing standards;
(b) ensure that all Forge Developments Personnel who are involved in delivering Goods and/or Services are competent and capable of performing their respective tasks;
(c) take reasonable care to properly supervise or direct the Forge Developments Personnel who are involved in delivering the Goods and/or Services, in the manner required or permitted by Law in respect of each such person; and
(d) supply Goods, that are, to Forge Developments reasonable knowledge, of correct specifications and quality for the relevant purpose as determined by Forge Developments in its absolute discretion.

Duties specific to development management: project administration
Where the Services involve development management project administration, Forge Developments may as part of those Services and as set out in the Proposal, and subject to clause 11 below:
(a) provide ‘executive’ support services to the Client;
(b) formulate business plans, annual budgets and action plans for approval by the Client;
(c) prepare forecasts and financial feasibility analysis with respect to the development project;
(d) prepare and make development project submissions and presentations;
(e) represent the Client under pre-agreed authorities or as otherwise reasonably directed by the Client; and
(f) in addition to the obligations under clause 21, procure appropriate professional indemnity insurance, public liability insurance and other insurance cover for indemnification of both the Client and Forge Developments against risks as may be deemed by the Client (acting reasonably) to be necessary or prudent to procure from time to time.

Duties specific to development management: project accounting
Where the Services involve development management project accounting, Forge Developments may as part of those Services and as set out in the Proposal, and subject to clause 11 below:
(a) attend to collection of accounts receivable and payment of accounts payable;
(b) prepare and lodge BAS returns;
(c) prepare internal management accounts (but not statutory accounts) in such frequency and with such content as reasonably directed by the Client; and
(d) collate and maintain all income and cost benchmarking information,

in connection with the development project.

Duties specific to development management: development planning
Where the Services involve development management development planning, Forge Developments may as part of those Services and as set out in the Proposal, and subject to clause 11 below:
(a) co-ordinate the master planning and urban design;
(b) supervise the planning approvals process;
(c) represent the Client in planning forums and approvals proceedings;
(d) co-ordinate product development;
(e) manage and implement design controls and processes; and
(f) manage stakeholder, neighbour, media and public relations,

in connection with the development project.

Duties specific to development management: project delivery
Where the Services involve development management project delivery, Forge Developments may as part of those Services and as set out in the Proposal, and subject to clause 11 below:
(a) co-ordinate works approvals;
(b) undertake the day-to-day co-ordination and liaison with contractors;
(c) formulate and manage the development program;
(d) undertake contract management;
(e) procure plant, equipment and services;
(f) undertake the consultancy commissioning and management;
(g) deal with site damage monitoring and reparation claims; and
(h) supervise the maintenance required of the site of the Proposal,

in connection with the development project.

Duties specific to development management: project marketing
Where the Services involve development management project marketing, Forge Developments may as part of those Services and as set out in the Proposal, and subject to clause 11 below:
(a) undertake market research coordination;
(b) prepare and supervise the development and ongoing operation of lot releases and all pricing and associated terms;
(c) co-ordinate advertising and promotions;
(d) attend to customer management;
(e) attend to development project sales (including the provision of a suitably licensed sales force and negotiate conjunctional selling rights with licensed real estate agents as selected by the Forge Development from time to time);
(f) manage the registration of plans of subdivision and the issue of titles for lots within such plans of subdivision; and
(g) manage property settlements, whole or partial discharges of any securities upon such lots within such plans of subdivision and title transfers;

in respect of the development project.

Duties specific to development management: project bank account
Where the Services involve maintenance and operation of a development project bank account, Forge Developments may as part of those Services and as set out in the Proposal, and subject to clause 11 below:
(a) maintain the development management project bank account for and on behalf of the Client (such account to be opened by the Client); and
(b) keep and maintain entries to and from the development management project bank account and a monthly reconciliation of the development management project bank account against issued bank statements relating to the development management project bank account for the benefit of the Client in an electronic accounting system approved by the Client (acting reasonably).

10. CLIENT’S OBLIGATIONS
The Client will:
(a) pay all Fees to Forge Developments when they are due and owing;
(b) provide all relevant and necessary information required by Forge Developments to successfully supply the Goods and/or Services, and ensure that such information is complete, correct and not misleading in any respect; and
(c) where the services of third-party contractors or suppliers are required before Forge Developments can supply the Goods and/or Services, procure those third parties’ services, at the Client’s own cost.

11. SUSPENSION
The parties agree that:
(a) Forge Developments may suspend the whole or part of the supply of the Goods and/or Services because:
(i) of a personal accident, serious illness or death of any Forge Developments Personnel or third party Personnel associated with the supply of Goods and/or Services;
(ii) there is, in Forge Developments’ sole opinion, circumstances which present actual or potential risk of life or serious injury at the Premises;
(iii) in Forge Developments’ sole opinion, the condition of the Premises is not adequate for the supply of Goods and/or Services;
(iv) of the acts or omissions of any third party (including any speakers, presenters, trainers or other persons engaged to provide services) that materially affect the supply of Goods and/or Services;
(v) a breach has occurred which requires notification under the Work Health and Safety Act 2020 (WA) or similar work health and safety laws in the place the Services are being provided; or
(vi) of any dispute between the parties regarding Intellectual Property, Confidential Information or the supply of Goods and/or Services; and
(b) in such circumstances, except where the suspension is attributable to Forge Developments’ gross negligence, Forge Developments will not be liable to pay the Client any compensation, besides refunding any relevant part of the Fees in the sole discretion of Forge Developments, and the Client hereby releases Forge Developments from liability for any Loss or Claim that the Client may experience as a result of such suspension.

12. SUBCONTRACTING
Forge Developments may subcontract any of its rights or obligations under this Agreement providing such subcontractor has the authorisations and licences to supply the Goods and/or Services.

Forge Developments must ensure that its subcontractors have all requisite authorisations and licences applicable to the performance of Forge Developments’ obligations under this Agreement.

To the extent that Forge Developments subcontracts any of its obligations under this Agreement to a third party, Forge Developments will remain liable to the Client for each act and omission of that third party (including its Personnel) in connection with the performance of such obligations as if it were an act or omission of Forge Developments.

13. NON-SOLICITATION AND NON-COMPETE
In consideration of this Agreement, the Client expressly agrees and undertakes to Forge Developments that, for any breach of the non-solicitation and non-compete provisions in this clause 13, damages alone may not be an adequate remedy. Therefore, the Client, in addition to any claims for Loss or damages on a full indemnity basis for any breach of this clause 13, consents to and indemnifies Forge Developments in obtaining any injunctions, specific performance and any other remedies available at Law and in equity.

During the Term and after this Agreement ceases for any reason, the Client agrees that:
(a) within the areas of:
(i) Australia, but if a Court deems that unenforceable then;
(ii) Western Australia, but if a Court deems that unenforceable then;
(iii) 500 km radius from the Forge Developments’ business premises (and any other then-premises of Forge Developments), but if a Court deems that unenforceable then;
(iv) 100 km radius from Forge Developments’ business premises (and any other then-premises of Forge Developments), but if a Court deems that unenforceable then;
(v) the Perth metropolitan area,
(b) for the periods from the Start Date until:
(i) 5 years after the expiry of the Term, but if a Court deems that unenforceable then;
(ii) 2 years after the expiry of the Term, but if a Court deems that unenforceable then;
(iii) 12 months after the expiry of the Term, but if a Court deems that unenforceable then;
(iv) 6 months after the expiry of the Term,
(c) the Client will not:
(i) solicit, canvass, induce or encourage any Forge Developments Personnel to leave the employment of Forge Developments;
(ii) solicit, canvass, approach any person or entity who is/was a client, customer or patron of Forge Developments, with a view to establishing a relationship with or obtaining the custom of that person or entity in a business which carries on a business similar to Forge Developments’ business; or
(iii) interfere or seek to interfere, directly or indirectly, with the relationship between Forge Developments’ business and its Personnel or clients in the conduct of its business,

without Forge Developments’ prior written consent (which may be held in its absolute discretion).

Clause 13.2 is construed and has effect as if it were a number of separate sub-clauses which results from combining each such sub-clause with each other sub-clause and each combination being severable from the others. If any such separate sub-clause is invalid or unenforceable for any reason, such invalidity or unenforceability does not in any way affect the validity or enforceability of other such related sub-clauses.

14. TITLE TO GOODS AND THE PPSA
Title to and ownership of Goods remains with Forge Developments until all the amounts owing by the Client to Forge Developments (including without limitation the Fees and other debts owing to Forge Developments) have been paid in full.

If payment of Fees is not received as and when due, Forge Developments is granted by the Client the express, irrevocable right to enter the place where the Goods are stored (or, if that place is not the Clients, then the Client must do all things necessary to procure such rights of access to Forge Developments) without further notice and remove and repossess the Goods (even if they have been installed). Forge Developments is entitled to recover, in addition to any other damages, the costs of so doing from the Client.

Until all the amounts owing by the Client have been paid in full, the Client may sell the Goods in the ordinary course of its business but only as trustee and agent of Forge Developments. The Client must store the Goods in such a manner that they are readily distinguishable from other goods held by the Client, so they clearly show that they are the property of Forge Developments. The Client must not represent to any third party that it is acting for Forge Developments and Forge Developments will not be bound by any contracts with third parties to which the Client is a party.

The Client must hold the sale proceeds it receives from any sale of the Goods as trustee and agent for Forge Developments. All such sale proceeds must be placed in an ADI account separate from its own monies and the Client must not allow any person to have control of, or grant a Security Interest over, the proceeds or the accounts in which they are held. The Client must make immediate payment to Forge Developments from the accounts in which the sale proceeds are held of all amounts which may be owing by the Client to Forge Developments.

The Client acknowledges that the Agreement and these Terms and Conditions constitute a Security Agreement, and the Client grants a Security Interest in favour of Forge Developments in all the Goods supplied by Forge Developments to the Client from time to time. The Client grants to Forge Developments a Purchase Money Security Interest. Further, the Client grants to Forge Developments a Security Interest in the Client’s All Present and After Acquired Property to secure the Client’s performance of its obligations under this Agreement.

The Client accepts, acknowledges and agrees that:
(a) Forge Developments can, without notice to the Client, effect and maintain a Registration (in any manner that Forge Developments considers appropriate) of its Security Interest on the PPSR in relation to any Security Interest contemplated or constituted by the Agreement including but not limited to Forge Developments’ Goods, Services, contract rights or Intellectual Property; and
(b) Pursuant to section 275(6) of the PPSA, the Client agrees Forge Developments is not required to disclose to an interested person information pertaining to Forge Developments’ Security Interest unless required to do so pursuant to the PPSA or at Law generally.

The Client will:
(a) sign any documents and/or provide any further information (which information the Client warrants to be complete, accurate and up to date in all respects) and/or assistance which Forge Developments may reasonably require to enable perfection of its Security Interest or Registration of a Financing Statement or Financing Change Statement on the PPSR;
(b) not register a Financing Change Statement or make a demand to alter the Financing Statement pursuant to section 178 of the PPSA in respect of the Goods, including any Services, without the prior written consent of Forge Developments;
(c) give Forge Developments not less than fourteen (14) days’ written notice of any proposed change in their name and/or any other changes in their details (including but not limited to, changes in their address, facsimile number, email address, trading name or business activities);
(d) indemnify Forge Developments against any costs Forge Developments incurs in perfecting and maintaining its perfected Security Interest in the Goods or such other Personal Property under the PPSA and any costs Forge Developments may incur in the course of enforcing any of its rights under this Agreement, the PPSA or at Law generally; and
(e) procure from any persons considered by Forge Developments to be relevant to its security position, such agreement and waivers as Forge Developments may at any time reasonably require.

The Client undertakes not to register, or permit to be registered, a Financing Statement or a Financing Change Statement in respect of a Security Interest contemplated or constituted by this Agreement in favour of a third party without Forge Developments’ prior written consent.

If Chapter 4 of the PPSA would otherwise apply to the enforcement of a Security Interest arising in connection with this Agreement to which these Terms and Conditions apply, the Client agrees that the following provisions of the PPSA will not apply to the enforcement of the Agreement:
(a) Section 95 (notice of removal of accession), to the extent that it requires Forge Developments to give a notice to the Client;
(b) Section 96 (when a person with an interest in the whole may retain an accession);
(c) Subsection 121(4) (enforcement of liquid assets – notice to grantor);
(d) Section 125 (obligation to dispose of or retain collateral);
(e) Section 129 (disposal by purchase);
(f) Section 130 (notice of disposal of collateral), to the extent that it requires Forge Developments to give a notice to the Client;
(g) Section 132(3)(d) (contents of statement of account after disposal);
(h) Section 132(4) (statement of account if no disposal);
(i) Section 135 (notice of retention of collateral);
(j) Section 142 (redemption of collateral); and
(k) Section 143 (reinstatement of security agreement).

Notices or documents required or permitted to be given to Forge Developments for the purposes of the PPSA must be given in accordance with the PPSA.

15. INTELLECTUAL PROPERTY
The Client expressly agrees and acknowledges that:
(a) any Intellectual Property in Forge Developments’ Goods and/or Services (whether unregistered, registered or registrable) is Forge Developments’ property and not the Client’s property; and
(b) nothing in the Agreement is intended to provide the Client with any interest in the Intellectual Property in Forge Developments’ Goods and/or Services.

The Client agrees that it must not copy, alter, modify or in any other way interfere with (including but not limited to reverse engineering) the Goods, the Services, or the Intellectual Property in the Goods or Services. The Client must not do anything that may infringe on the Forge Developments’ Intellectual Property Rights.

16. CONFIDENTIALITY
Each party (Recipient) must keep confidential, and not disclose, any Confidential Information of the other party (Discloser) except:
(a) as permitted under this Agreement;
(b) with the prior written consent of the Discloser;
(c) to the Recipient’s officers, agents, professional advisers, auditors, employees, contractors, sub-contractors and insurers; or
(d) where the Recipient is compelled to do so by Law, provided that it gives the other party written notice prior to disclosure.

The Recipient must only use the Confidential Information of the Discloser for the purpose for which it was disclosed in connection with this Agreement.

The Recipient must:
(a) maintain effective security measures to protect all Confidential Information in the possession or control of the Recipient or its Personnel from unauthorised access, use, copying or disclosure;
(b) notify the Discloser immediately in writing if the Recipient becomes aware of any anticipated, suspected or actual breach of this Agreement by the Recipient or its Personnel and take all reasonable steps required to prevent or stop that breach, at the Recipient’s expense; and
(c) reasonably assist the Discloser in connection with any action or investigation by the Discloser regarding any anticipated, suspected or actual unauthorised disclosure or misuse of the Confidential Information by the Recipient or its Personnel.

The following are exceptions to clauses 16.1 and 16.2:
(a) that at the time of disclosure, the information is in the public domain;
(b) information that is required by Law to be communicated to a person who is authorised by law to receive it;
(c) disclosure to a court, arbitrator, expert, board of enquiry or administrative tribunal in the course of proceedings or determinations before or by them or it;
(d) disclosure to any person who is required or authorised by this Agreement to perform any function under this Agreement;
(e) information that is necessary to be disclosed to any bank or other financial institution in connection with the organisation of that party’s financial affairs;
(f) information that is necessary to be disclosed to any legal counsel, accountant, other professional adviser or Personnel in connection with the party’s affairs provided that the disclosee is bound by an obligation of confidentiality in regard to the information disclosed; or
(g) information that is necessary to be disclosed to the party’s officers, employees, agents, contractors, consultants, auditors and other persons for the purpose of all or any of the matters pertaining to this Agreement.

All records, documents (electronic or otherwise) and other papers (and any copies or extracts and including, but not limited to Confidential Information) made or acquired by the Client in relation to Forge Developments is and remains the sole property of Forge Developments. These items must be delivered up to Forge Developments when the Agreement is terminated.

17. SECURITY FOR PAYMENT
As security for the Client’s obligations and liabilities under this Agreement:
(a) the Client charges for the due and punctual payment and performance of those obligations and liabilities, all of its legal and equitable interest (both present and future) of whatsoever nature held in any and all real and personal property;
(b) without limiting the generality of the charge in this clause, the Client agrees, on Forge Developments’ request, to execute any documents and do all things necessary required by Forge Developments to register a mortgage, absolute caveat, Security Interest or other instrument of charge over any real property or personal property, or both, and against the event the Client fails to do so within a reasonable time of being so requested, the Client irrevocably and by way of security, appoints any credit manager or solicitor engaged by Forge Developments to be the Client’s true and lawful attorney to execute and register such instruments; and
(c) the Client will indemnify Forge Developments on a full indemnity basis against all costs and expenses incurred by Forge Developments in connection with the preparation and registration of any such security interest, charge, caveat or mortgage document.

18. PRIVACY AND PERSONAL INFORMATION
The Client must:
(a) in relation to the discharge of its obligations under this Agreement, comply with the relevant provisions of the Privacy Act;
(b) ensure that Personal Information is protected against loss and against unauthorised access, use, modification, disclosure or other misuse;
(c) not use Personal Information other than for the purpose of performing its obligations under this Agreement, unless required or authorised by Law;
(d) not disclose Personal Information without the prior written consent of Forge Developments, unless required or authorised by Law;
(e) not transfer any Personal Information outside of Australia without the prior written consent of Forge Developments;
(f) ensure that access to Personal Information is restricted to those of its Personnel who require access in order to perform their duties under this Agreement;
(g) ensure that its Personnel are aware of the Client’s obligations under this clause 17 and comply with the same obligations imposed on the Client under this clause;
(h) fully cooperate with Forge Developments to enable Forge Developments to respond to applications for access to, or amendment of, a document containing a person’s Personal Information and to privacy complaints;
(i) immediately notify Forge Developments if the Client becomes aware that a disclosure of Personal Information is or may be required or authorised by Law; and
(j) comply with such other privacy and security measures as Forge Developments reasonably advises the Client in writing from time to time.

The Client agrees for Forge Developments to obtain from a credit reporting agency a credit report containing credit information and Personal Information about the Client in relation to the Credit Facility.

The Client agrees that Forge Developments may exchange information about the Client with those credit providers either named as trade referees by the Client or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess any application for a Credit Facility by the Client; and/or
(b) to notify other credit providers of a default by the Client; and/or
(c) to exchange information with other credit providers as to the status of the Credit Facility, where the Client is in default with other credit providers; and/or
(d) to assess the credit worthiness of the Client.

The Client consents to Forge Developments being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) of the Privacy Act).

The Client agrees that credit information and Personal Information provided may be used and retained by Forge Developments for the following purposes and for other purposes as shall be agreed between the Client and Forge Developments or required by law from time to time:
(a) provision of Goods and/or Services; and/or
(b) marketing of Goods and/or Services by Forge Developments, its agents or distributors in relation to the Goods and/or Services; and/or
(c) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to provision of Goods and/or Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Client; and/or
(e) enabling the daily operation of Client’s account and/or the collection of amounts outstanding in the Client’s account in relation to the Goods and/or Services.

The Client acknowledges and agrees that Forge Developments may, from time to time, disclose details of the performance of the Services and its involvement in any development project for any marketing and advertising purposes as Forge Developments considers in its absolute discretion appropriate. The Client consents to Forge Developments erecting or displaying any signage on a project site and disclosing its involvement in any project on any media or marketing platform (including social media).

Forge Developments may give information about the Client to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Client; and/or
(b) allow the credit reporting agency to create or maintain a credit information file containing information about the Client.

The Client must immediately notify Forge Developments upon becoming aware of a breach of this clause 18.

Nothing in this clause 18 is intended to limit any obligation of the Client under the Privacy Act, that the Client may have as an organisation with respect to Personal Information.

19. INDEMNITY
Each party (Indemnifying Party) continually indemnifies the other party (Indemnified Party) and its Personnel from and against any Claim or proceeding that is made, threatened or commenced, and against any Loss or Claim, liability, expense or damage (including commissions payable to commercial agents, mercantile agents or debt collectors 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 such agents or debt collectors; and legal costs on a full indemnity basis including legal proceedings for enforcement) any of the Indemnified Party or its Personnel incurs or suffers, as a direct or indirect result of any of the following:
(a) any breach of this Agreement by the Indemnifying Party;
(b) the death or personal injury of any person to the extent caused or contributed to by any act or omission of the Indemnifying Party or its Personnel;
(c) loss of, or damage to, any property to the extent caused or contributed to by any act or omission of the Indemnifying Party or its Personnel;
(d) any breach of Law by the Indemnifying Party or its Personnel;
(e) any infringement, or alleged infringement, of a third party’s rights (including Intellectual Property Rights); and
(f) any act or omission of fraud, dishonesty, reckless or wilful misconduct or misrepresentation by the Indemnifying Party or its Personnel.

20. LIABILITY
To the maximum extent permitted by Law, Forge Developments’ maximum aggregate liability to the Client (whether under contract, tort, statute or in equity) arising out of or in connection with this Agreement is limited to the total amount of the Fees paid under this Agreement.

This clause 20 will apply regardless of the form of Loss or Claim whether in contract, statute or tort (including without limitation to negligence) or otherwise.

Neither party will be liable to the other party for any Consequential Loss suffered or incurred by the other party arising out of or in connection with this Agreement, whether arising under contract, in tort (including negligence) or otherwise.

The Client acknowledges, understands and agrees that, notwithstanding any other provision of this Agreement:
(a) in the event of any Claims or Losses, the Client agrees to first exhaust any available insurances it holds before seeking redress from Forge Developments for any Claims or Losses; and
(b) the collection, storage and provision of data on local and remote servers presents inherent security risks and risk of loss. The Client agrees that it will not hold Forge Developments liable for any loss, theft or corruption of any data collected, stored or provided by Forge Developments or any damage that the Goods and/or Services may cause to any of the Client’s existing infrastructure that does not directly result from Forge Developments’ gross negligence.

21. INSURANCE
Each party must effect and maintain insurances in the form or forms appropriate to that party’s activities and with insurers approved by the Australian Prudential Regulation Authority.

Each party must, if so required:
(a) effect workers’ compensation and public liability insurance before the Start Date; and
(b) effect adequate professional indemnity insurance before the Start Date,

and maintain them until this Agreement is terminated or expires.

22. DISPUTE RESOLUTION
If any dispute arises out of or in connection with this Agreement or the interpretation of its terms (Dispute), a party may not commence any court proceedings relating to the Dispute unless this clause 22 has first been complied with, except where that party seeks urgent interlocutory relief.

The parties must attempt to resolve any Dispute as follows:
(a) Either party may notify the other party in writing of the occurrence of a Dispute and the parties must meet within seven (7) days or such other time as agreed to discuss and attempt to resolve the Dispute.
(b) On receipt of the notice specified in clause 22.2(a), the parties must use their reasonable efforts to expeditiously resolve the Dispute.
(c) If the parties cannot resolve the Dispute within fourteen (14) days after the first meeting between the parties specified in clause 22.2(a), or any further period as the parties may agree to in writing, the Dispute must (at the instigation of any party) go to mediation.
(d) The mediation is to be conducted in accordance with the ADC’s Mediation Guidelines with a mediator as agreed by the parties or, failing agreement, as appointed by the ADC or its nominee.
(e) The mediation will be confidential, and the parties must equally bear the mediator’s costs to the Dispute, and each party must also bear their own legal costs.
(f) If the Dispute is not resolved at mediation within fourteen (14) days of the first mediation meeting then any party is at liberty to claim their costs against the other parties, including the costs referred to in clause 22.2(e), and either party may commence legal proceedings.

Subject to clause 11(a)(vi), the parties must continue to perform their obligations under this Agreement, including the payment of any Fees, while any Dispute is being resolved in accordance with this clause 22.

23. DEFAULT AND CONSEQUENCES
Neither party shall take any action (including legal action) against the other party for a default of the Agreement without first giving the defaulting party written notice specifying the default and providing the defaulting party with seven (7) days to rectify such.

Interest on overdue payments of any invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of twelve and a half percent (12.5%) per annum, calculated daily and such interest shall compound monthly at such a rate after as well as before any judgement.

If the Client defaults in payment (including by way of dishonoured cheque) of any invoice when due, the Client will indemnify Forge Developments from and against all costs and disbursements incurred by Forge Developments in pursuing the debt including legal costs (on a solicitor and own Client basis) and Forge Developments’ debt recovery costs.

Without prejudice to any other remedies Forge Developments may have, if at any time the Client is in breach of any obligation (including those relating to payment), Forge Developments may suspend or terminate the supply of Goods and/or Services to the Client and any of its other obligations under these Terms and Conditions. Forge Developments will not be liable to the Client for any Loss or Claim the Client suffers because Forge Developments has exercised its rights under this clause.

Without prejudice to Forge Developments’ other remedies at Law, Forge Developments is entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Forge Developments shall, whether or not due for payment, become immediately payable in the event that:
(a) any money payable to Forge Developments becomes overdue, or in Forge Developments’ opinion the Client will be unable to meet its payments as they fall due; or
(b) the Client is the subject of an Insolvency Event.

24. TERMINATION
Either party may terminate this Agreement by giving the other party not less than thirty (30) days’ written notice.

Termination by Forge Developments
Forge Developments may terminate this Agreement immediately by written notice to the Client if the Client:
(a) does anything that materially damages or is likely to materially damage Forge Developments’ brand or reputation;
(b) breaches this Agreement and does not remedy the breach within fourteen (14) days of receipt of written notice from Forge Developments specifying the breach and requiring it to be remedied;
(c) commits a material breach of this Agreement which is incapable of remedy;
(d) or its Personnel commit any act of fraud or dishonesty in relation to this Agreement; or
(e) is the subject of an Insolvency Event.

Termination by the Client
The Client may terminate this Agreement immediately by written notice to Forge Developments if Forge Developments:
(a) ceases to hold any applicable licence relating to the class of Goods and Services it provides to the Client;
(b) does anything that materially damages or is likely to materially damage the Client’s brand or reputation;
(c) breaches this Agreement and does not remedy the breach within fourteen (14) days of receipt of written notice from the Client specifying the breach and requiring it to be remedied;
(d) commits a material breach of this Agreement which is incapable of remedy;
(e) or its Personnel commit any act of fraud or dishonesty in relation to this Agreement; or
(f) is the subject of an Insolvency Event.

This clause 24 does not limit Forge Developments’ rights to receive its Fee for all Goods and Services provided by Forge Developments to the Client up to the date of termination for any reason.

25. CONSEQUENCES OF TERMINATION

Return of equipment and Confidential Information
As soon as practicable after expiry or termination of this Agreement, each party must:
(a) return to the other party all the other party’s equipment, records, documents, assets and materials provided by the other party for the purposes of this Agreement; and
(b) return to the other party all copies of all Confidential Information and Personal Information of the other party in its possession or control.

Break Fee
(a) If this Agreement is terminated prior to the expiry of the Term as a result of a breach, default, or other termination event caused by the Client for any reason (including for a termination for convenience by the Client under clause 24.1), the Break Fee will become immediately due and payable by the Client to Forge Developments.
(b) The Client acknowledges and agrees that the Break Fee is a genuine, pre-estimated calculation of Forge Developments’ partial Loss and damage it would suffer if the termination of this Agreement occurs prior to the expiry of the Term as the Fee are to be paid over the Term. The parties agree that the Break Fee is therefore liquidated damages and not a penalty.
(c) The Break Fee (BF) will be calculated as follows:

Break Fee = TCV x RT
TT

Where:
TCV = Total Contract Value being the total amount in Fees that would have been payable to Forge Developments under this Agreement (inclusive of the un-invoiced value of work in progress performed up to and including the date of termination had the Agreement continued for the full Term;
RT = Remaining Term means the period (in months or days, as applicable) between the date of termination and the scheduled expiry date of the Term; and
TT = Total Term being the total Term of this Agreement in years or months (as the case may be and to align with the RT Remaining Term period), between the Start Date and the scheduled expiry date of the Term.
(d) By way of example if the full Term runs for twelve (12) months and the total Fees payable for the full Term are $6,000, but the Client causes a termination after eleven (11) months leaving one (1) month of the Term remaining, the Break Fee is:

$6,000 x 1 = $500
12

(e) The Client’s obligation to pay the Fee, including the Break Fee, is an essential term of this Agreement.

Survival of clauses
Clauses 13.3, 14, 15.1, 19, 21.2, 22, 25 and 26 continue after termination or expiry of this Agreement.

26. NOTICES
Notices under this Agreement may be delivered by hand, by mail or by email to:
(a) Forge Developments at the address or email address shown on the Proposal; and
(b) the Client at the addresses it nominates in writing to Forge Developments.

Notices will be deemed to be served:
(a) upon delivery – if delivered by hand;
(b) on the fourth (4th) Business Day after the date on which it was posted – if sent by ordinary pre-paid or registered post addressed to a party;
(c) on the day it was sent – if sent by email transmission before or during normal business hours on a Business Day; or
(d) on the next Business Day following the day on which it was sent – if it is sent by email transmission after 4.00 pm on a Business Day or on a day other than a Business Day.

Each party must promptly notify the other party of any change to their addresses (including email addresses), or any other such information supplied by them.

27. SPECIAL CONDITIONS
The parties must comply with and will be bound by the Special Conditions set out in this Agreement, including in any Proposal.

In the event of any conflict in the interpretation of the Special Conditions and any part of this Agreement, the order of precedence in clause 28.8 applies.

28. GENERAL

Governing Law
This Agreement is governed by the laws of Western Australia, and each party submits to the exclusive jurisdiction of the courts of Western Australia.

Assignment
Neither party may assign any of its rights or obligations under this Agreement without the other party’s prior written consent.

Relationship
Nothing in this Agreement gives rise to any relationship of agency, partnership, employment or otherwise between the parties.

Force Majeure
If Forge Developments is delayed, hindered, or otherwise prevented from complying with its obligations under this Agreement by reason of events or circumstances beyond the reasonable control of Forge Developments, including by reason of a Force Majeure Event, or any other circumstances affecting the supply of Goods and/or Services, Forge Developments is not liable to the Client for any Loss or damage which is or may be suffered by the Client whether as a direct or indirect result of any such events or circumstances.

Set Off
(a) The Client shall not be entitled to set off against or deduct from the Fees any sums owed or claimed or determined under the dispute resolution provisions of this Agreement to be owing to the Client by Forge Developments.
(b) Forge Developments may by notice in writing set off against or deduct from any amounts owing to the Client under this Agreement by any fee, credit, rebate or other amount which is payable to Forge Developments under or in connection with this Agreement.

Entire Agreement
This Agreement constitutes the entire agreement between the parties in connection with their respective subject matter and supersedes all previous agreements or understandings between the parties in connection with the relevant subject matter.

Further Assurance
Each party must promptly do whatever any other party reasonably requires of it to give effect to this Agreement and to perform its obligations under this Agreement.

Precedence
The documents comprising the Agreement will be read in the following order of precedence:
(a) the Special Conditions (if any);
(b) these Terms and Conditions;
(c) any Proposal.

Severability
If any provision of this Agreement at any time is or becomes void or voidable or unenforceable, the remaining provisions, if any, will continue in full force and effect and any void, voidable or unenforceable provision will be replaced by a lawful and enforceable provision which, so far as possible achieves the same economic and other benefits for the Client and Forge Developments, as the void, unlawful or unenforceable provision, was intended to achieve.

Conflict
Where any conflict occurs between the provisions contained in these Terms and Conditions, such provisions will be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions will be severed from these Terms and Conditions without otherwise diminishing the enforceability of the remaining provisions of these Terms and Conditions.

Limitation and Breach
In the event of any breach of the Agreement or any of these Terms and Conditions by Forge Developments the remedies of the Client shall be limited to damages which under no circumstances shall exceed the Fees.

Waiver
No waiver of a right or remedy under this Agreement is effective unless it is in writing and signed by the party granting it.

Variation
No variation of this Agreement is effective unless made in writing and signed by each party.

No Representations or Warranties
The Client acknowledges Forge Developments does not make under this Agreement, or these Terms and Conditions, or outside of them, any representations or warranties regarding goods and services or any matter (including but not limited to descriptions, illustrations and performance contained in any Forge Developments’ catalogues, price lists or any other advertising or marketing materials) which is or might be relevant to the Client buying or selling goods and services other than the representations or warranties expressed here.

Counterparts
This Agreement may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.

29. DEFINITIONS AND INTERPRETATION

Definitions
In this Agreement unless the context otherwise requires:

ADC means the Australian Disputes Centre (ABN 87 003 042 840) or any successor dispute resolution organisation having similar objects that succeeds it.

ADI means an authorised deposit-taking institution, having the meaning given in the Banking Act 1959 (Cth).

Agreement means the agreement for the Supply of Management Services between Forge Developments and the Client and including these Terms and Conditions and any Proposals, annexures or attachments.

Break Fee has the meaning given in clause 25.2.

Business Day means a day which is not a Saturday, Sunday or public holiday in Western Australia.

Change in Control means a change in more than 50% of the shareholding or underlying control or the composition of the board of directors of a person.

Client means the person engaging Forge Developments for the supply of Services.

Confidential Information in relation to a party means information of a confidential nature including but not limited to information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is in the public domain other than through a breach of confidence.

Consequential Loss means any loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity.

Encumbrance means security interests, mortgages, pledges, charges, bills of sale, liens, assignments, preferential rights or trust arrangements whether over real or personal property or both, and any other arrangement given or created in each case by way of security.

Fees mean the total price of the various amounts payable by the Client under this Agreement for the Goods and Services as specified in the Proposal or as otherwise communicated to the Client.

Force Majeure Event means an event which is beyond the reasonable control of a party and includes but is not limited to the following types of events:
(a) an act of God;
(b) war or other state of armed hostilities, insurrection, riot, civil commotion, act of public enemies, acts of terrorism, national emergency (whether in fact or in Law) or martial law;
(c) weather sufficiently inclement to prevent a party from performing an obligation under this Agreement;
(d) natural catastrophes, fire, earthquake, lightning or explosions;
(e) pandemic, epidemic or quarantine (including any government-mandated ‘lockdown’ or imposition of stay-at-home orders; or restrictions on travel, social interaction or access to public spaces);
(f) strikes, lock outs, slowdowns, stoppages and restraints of labour;
(g) lawful restraints;
(h) cancellations, suspensions or delays caused by third party service providers such as travel service providers, transportation providers, airlines, insurers, speakers, presenters or other facilitators;
(i) prolonged energy shortages, prolonged embargoes, or prolonged lack of availability of raw materials;
(j) changes in Laws; and
(k) action or inaction by, or orders, judgments, rulings, decisions or enforcement actions of, any government, governmental authority or court of competent jurisdiction whether local, State or Federal (including denial, refusal or failure to grant any permit, authorisation, licence, approval or acknowledgment despite timely endeavours to obtain same),

but does not include:
(l) financial distress nor the inability of either party to make a profit or avoid a financial loss;
(m) changes in market prices or conditions; or
(n) a party’s financial inability to perform its obligations under this Agreement.

Forge Developments means Forge Developments Pty Ltd (ACN 682 884 304) of 52 Ord Street, West Perth WA 6005, being the entity providing Services to the Client.

Goods mean goods or products supplied by Forge Developments to the Client (and where the context so permits shall include any supply of Services) under this Agreement.

GST means a goods and services tax, or a similar value added tax, levied or imposed under the GST Law.

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

Insolvency Event means, in respect of a party, any one or more of the following events or circumstances:
(a) a winding up, dissolution, liquidation, provisional liquidation, administration or bankruptcy;
(b) having a Controller or analogous person appointed to it or any of its property;
(c) being unable to pay any of its debts as and when due and payable or being deemed to be insolvent under any provision of the Corporations Act or any other Law;
(d) seeking protection from its creditors under any Law, entering into a compromise, moratorium, assignment, composition or arrangement with, or for the benefit of, any of its members or creditors; or
(e) any analogous event or circumstance to those described in preceding sub-clauses (a) to (d) of this definition.

Intellectual Property includes all trademarks, patents, copyright, designs, marks, processes, know-how, methodology, concepts, models, specifications, statements, formulae, trade secrets, manner of new manufacture, drawings, artwork and data or other like property or rights owned or held by Forge Developments. These rights include but are not limited to:
(a) marks, logos, images, service marks, trade names, business names, internet domain names, slogans, symbols, brand names, copyright or other trade indicia; and
(b) all rights in information, know-how, processes, procedures, compositions, devices, methods, formulae, protocols, techniques, software, designs, drawings, programs, source code, dynamic link libraries, graphical user interfaces, trade secrets or data whether or not protectable by patent application design registration, copyright, circuit layouts or otherwise, whether unregistered, registered or registrable.

Intellectual Property Rights means all present and future rights in relation to copyright, trademarks, designs, patents, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of this Agreement, and whether in Australia or otherwise.

Law means any applicable statute, regulation, by-law, ordinance, policy or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or a local government, and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct.

Loss or Claim means, in relation to any person, a claim, action, proceeding, judgment, damage (including but not limited to any damages or compensation and any damage to reputation), loss, cost (including legal costs on a full indemnity basis), expense or liability incurred by or to or made or recovered by or against the person, however arising and whether present, unascertained, immediate, future or contingent.

Personal Information means information or an opinion (including information or an opinion forming part of a database) whether true or not, and whether recorded in material form or not, about an individual whose identity is apparent, or can be reasonably ascertained, from the information or opinion.

Personnel means a party’s principals, officers, employees, secondees, agents, consultants, contractors and subcontractors.

PPSA means the Personal Property Securities Act 2009 (Cth).

Pre-Existing Materials means all things, goods, materials, documents, information and items developed by or on behalf of Forge Developments or the Client independently of this Agreement.

Premises means Forge Developments’ business premises or other premises where Forge Developments carries out or supplies Goods and/or Services to the Client.

Privacy Act means the Privacy Act 1988 (Cth).

Proposal means Forge Developments’ order form, quotation, proposal of works, or equivalent online or physical form or document which sets out the particulars of each supply of Goods and Services to the Client and the Fees for such Goods and Services payable by the Client plus any Special Conditions which may be applicable to such supply under this Agreement.

Security Agreement, Commingled Goods, Financing Statement, Financing Change Statement, Personal Property, All Present and After Acquired Property, Purchase Money Security Interest, Registration and Security Interest have the meanings given to them in the PPSA.

Services means the provision of Forge Developments’:
(a) management and associated services to undertake the contracted activities and works; and
(b) any related Goods (and where the context so permits shall include any supply of Goods) supplied by Forge Developments,

and includes any variations authorised under this Agreement.

Special Conditions mean any special conditions contained in this Agreement, including in a Proposal,

Start Date means the date Forge Developments commences supplying the Goods and/or Services to the Client.

Taxes means all taxes, levies, rates, charges, imposts of any kind whatsoever, including withholding tax.

Tax Invoice has the meaning given in the GST Law.

Taxable Supply has the meaning given in the GST Law.

Term means the period commencing on the Start Date and ending on the later of:
(a) the date Forge Developments completes the supply of Goods and/or Services; or
(b) the date on which both parties complete all of the obligations under this Agreement.

Terms and Conditions means these terms and conditions for the Supply of Goods and Services.

Interpretation
In this Agreement the following rules of interpretation apply unless the context otherwise requires:
(a) headings are for convenience only and do not affect the interpretation of this Agreement;
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings;
(e) “includes” means without limitation;
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a party includes its successors and permitted assigns;
(iii) a document includes all amendments or supplements to that document;
(iv) a clause, term, party, schedule or attachment is a reference to a clause or term of, or party, schedule or attachment to, this Agreement;
(v) this Agreement includes all schedules and attachments to it;
(vi) an agreement other than this Agreement includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing; and
(vii) a monetary amount is in Australian dollars;
(g) an agreement on the part of two or more persons binds them jointly and severally;
(h) when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day; and
(i) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this Agreement or any part of it.