- These Terms and Conditions, the Client’s acceptance, and any other documents attached hereto evidence an Agreement (the ‘Agreement’) for the provision by Flying Foam for the Client of:
- the services set out in the aforementioned Proposal (the ‘Services’) and;
- the supply of equipment set out in the Final Equipment Schedule determined once Flying Foam has designed the brewery and assessed what equipment is required (the ‘Equipment’). The Parties acknowledge and agree that the detailed Final Equipment Schedule, once prepared, will be attached hereto and form part of the terms and conditions of this Agreement.
- Flying Foam agrees to carry out and perform the Services in a workmanlike manner, and to supply the Equipment.
- The Client shall provide to Flying Foam in a timely manner all information and assistance required by Flying Foam to perform the Services.
- In consideration of Flying Foam’s agreement to perform of the Services and to supply of the Equipment, the Client must pay Flying Foam the lump sum fees and other expenses (without deduction).
- Flying Foam shall invoice the Client in accordance with the fees and payments details included in this Payment Schedule. The Client must pay all Invoices related to the charges for Services and Equipment, including any Services or Equipment provided by way of Variation, and any expenses incurred and not yet paid for, within seven (7) calendar days of the date of issue of such invoices.
- The Client may request that Flying Foam increase part, or to provide additional Services, or Equipment (‘Variation’). A proposed Variation and shall be managed as follows:
- The Client or Client Representative may request Flying Foam to perform a
- The Client or Client Representative may request Flying Foam to provide the Client or Client Representative with details of the effect Flying Foam anticipates a proposed Variation will have on the Completion Date and the price of the Services and Equipment.
- If the Client or Client Representative requests details:
- Flying Foam must use its best endevours to provide those details promptly;
- following receipt of the details, the Parties must seek to agree on the price for the Variation (including a payment schedule) and the impact of the Variation on the Completion Date; and
- Flying Foam need not commence performing the proposed Variation unless and until the Client or Client Representative agree in writing on the price for the Variation (including a payment schedule) and the impact of the Variation on the Completion Date.
- If the Parties agreed on the price for the Variation (including a payment schedule) and the impact of the Variation on the Completion Date, Flying Foam must be paid as agreed for performing the Variation and the Completion Date will be adjusted as
- The Schedule of Rates for the delivery of any Variation is per the following table.
|Name||Field||Hourly Rate||Day Rate|
|Principal||Design and general project management||$150.00||$900.00|
|Financial Controller||Business modelling||$100.00||$600.00|
|Operations Manager||Contract’s administration||$100.00||$600.00|
- The Client acknowledges and agrees that all Intellectual Property Rights in and to all Contract Material are held exclusively by Flying Foam and are assigned to and vest in the Flying Foam upon creation. Flying Foam grants to the Client a personal, non-exclusive, royalty free licence to use the Contract Material solely for the purpose of brewing beer at its premises and for no other purpose. The Client acknowledges and agrees that all Intellectual Property Rights in all Background Material and any material developed by Flying Foam for general application in its business are and shall remain the exclusive property of Flying Foam. The Parties acknowledge and agree that the Intellectual Property Rights in any Background Material held by third parties shall remain the property of such third parties. The Client agrees not to challenge any of Flying Foam’s Intellectual Property Rights and, at Flying Foam’s reasonable expense, to do all things and execute all documents which are reasonably necessary to assist Flying Foam to register and protect is Intellectual Property Rights.
- In relation to risk, title end delivery of the Equipment, the Parties agree:
- Where Flying Foam supplies Equipment to the Client, risk in the Equipment shall pass to the Client when the Equipment or a relevant part thereof leave the premises of Flying Foam whether or not Flying Foam arranges transport and where the Equipment are delivered by carrier any claims for loss or damage in transit must be made by the Client against the carrier in accordance with the carrier’s conditions
- Notwithstanding delivery and the passing of risk in the Equipment, or any other; provision of this Agreement, the property in the Equipment shall not pass to the Client until Flying Foam has received in cash or cleared funds payment in full for the Equipment supplied;
- Until such time as the property in the Equipment passes to the Client (and provided the Equipment are still in existence and have not been resold), the Client must keep the Equipment separate from other goods so they may be identified and Flying Foam shall be entitled at any time to require the Client to deliver up the Equipment to Flying Foam and, if the Client fails to do so forthwith, to enter upon any premises of the Client or any third party where the Equipment are stored and repossess the For such purposes the Client irrevocably grants permission to Flying Foam to detach or remove the Equipment from any other property of the Client to which the Equipment have become affixed without incurring any liability for damage in so doing and for this purpose. The Client shall afford all reasonable assistance to locate and take possession of the Equipment.
- In this clause 8:
“Security Interest” has the meaning as defined in the PPSA;
“PMSI” has the meaning given to the term “purchase money security interest” in the PPSA;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
- By signing this Agreement, the Client acknowledges and agrees that this clause 8 secures payment by the Client of the Fees and charges for the Services and the Equipment supplied by Flying Foam to the Client, and that this clause creates a Security Interest in the Equipment, and any proceeds of the Equipment. Insofar as it secures payment of such amounts, this clause creates a PMSI in the Equipment and any proceeds of the Equipment. To the extent permitted by law, the Client agrees with Flying Foam to contract out of Sections 95, 117, 121(4), 125, 130, 132(3)(d), 132(4), 142 and 143 of the PPSA.
- This Agreement may be terminated in the following circumstances:
- By a Party If the other is in material breach of its obligations hereunder, which breach has not been remedied within fourteen (14) days of written request to remedy the breach or has failed duly to pay money outstanding to the other within fourteen (14) days; or
- If Flying Foam fails to perform or delays performance of any obligation under this Contract after having received not less than fourteen (14) days written notice of its failure or delay, the Client may terminate the contract. In this case, the Client will not be liable in respect of payments for future stages of the Services not yet performed by Flying Foam.
- In the case of the Client, upon giving Flying Foam fourteen (14) days written notice of its intention to do so the Client will be liable to pay the following…
- In the case, where the termination occurs during or up to the completion of Phase 2 – Build, a sum of 75% of the total value of Services Scope of Works as detailed in the Payment Schedule less any Services Scope of Works payments paid.
- If the termination occurs after Phase Two – Build, the balance of the total value of Services Scope of Works as detailed in the Payment Schedule less any Services Scope of Works payments paid.
- The total value of any equipment supplied as set out in the Final Equipment Schedule.
- If the other Party becomes insolvent or an order is made, or resolution passed for its winding up or a receiver or administrator is appointed to it or any of its assets or it takes steps with a view to any compromise or arrangement with its creditors; or
- If it becomes unlawful for a Party to perform its material obligations under the Agreement, in each case such termination to take effect without prejudice to accrued rights and obligations.
- The Client acknowledges and agrees that it has not relied on any prior representation or promises made by Flying Foam except as set forth herein.
- Nothing in this Agreement shall limit or exclude Flying Foam’s liability for death or personal injury caused by its negligence or any matter in respect of which it would be unlawful for Flying Foam to exclude or restrict its liability.
- Subject to clause 11, Flying Foam’s liability to the Client (and any party claiming through the Client against Flying Foam) for any claim for loss or damages (including legal expenses) made in connection with this Agreement for breach of contract, tort (including negligence), under statute, in equity or otherwise for all delays, losses, damages and liabilities whatsoever and howsoever arising shall be limited as follows:
- for services, to the provision of the services again or payment of the cost of having the relevant services provided again at the option of Flying Foam;
- for goods, to the cost of replacement of the defective goods as soon as reasonably practicable, or the repair of the defective goods or the repayment (or allowance) of the invoice price of the defective goods at the option of Flying Foam;
- Flying Foam shall not be liable for any indirect, special or consequential loss or damage of any nature;
- “indirect, special or consequential loss or damage” includes:
- any loss of income, profit or business;
- any loss of goodwill or reputation;
- any loss of value of Intellectual Property Rights.
- Flying Foam’s liability for breach of this Agreement does not extend beyond the defective goods to any other goods that are part of an order or otherwise;
- any Claim by the Client in respect of defective goods or services must be made in writing within 60 days of the delivery of the goods or services;
- Flying Foam’s obligations in the event of sub-clause 12b applying do not include defects in goods caused by the improper installation or maintenance of goods (if not carried out by Flying Foam or at Flying Foam’s direction) and normal wear and tear damage to the goods over time;
- in any event, to the extent that it is lawful to do so, Flying Foam total liability to the Client will be limited amount of Flying Foam’s insurance cover for the loss, damage or liability.
- Flying Foam’s liability to the Client for breach of any condition, warranty or any other express provision of this Agreement will be reduced to the extent that the Client has caused or contributed to the loss, damage or liability.
- Flying Foam is engaged as an independent contractor for the supply of services and goods. Nothing in this Agreement constitutes Flying Foam, or any person engaged by Flying Foam (including but not limited to a Nominated Representative), to be an employee, officer, member or agent of the Client.
- Flying Foam must not incur any obligations on behalf of the Client except with the prior, written approval of the Client.
- To the extent that any Taxable Supply occurs under or pursuant to this Agreement then Flying Foam will be entitled to increase the consideration for the Taxable Supply identified in this Agreement (”net consideration”) by the amount of any applicable GST calculated in accordance with the GST Law. The Client must pay the increased consideration. Flying Foam must in any such case issue to the Client at the time of claiming payment a tax invoice (in accordance with Section 29-70 of the GST Law) for the purpose of obtaining an input tax credit for any GST so paid.
- The Client must not assign, sublet or transfer any right or obligation under the Agreement without the written consent of Flying Foam.
- Flying Foam may delegate or subcontract any part of the provision of the Services to another person.
- Any undisputed amounts due and payable by any Party to another under this Agreement may be set off against any other undisputed amount or amounts that may be due and payable to the first mentioned Party by the other under this Agreement, provided that the first mentioned Party, when tendering payment, will provide with it a statement setting out details of the gross amount owing and all individual amounts set off against the same.
- This Agreement and the transactions contemplated by this Agreement are governed by the law in force in Western Australia. Each Party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Western Australia, the Federal Court of Australia in Western Australia and courts of appeal from them for determining any dispute concerning this Agreement or the transactions contemplated by this Agreement.
- Any notice sent in connection with this Agreement shall be in writing and delivered by hand or registered mail to a Party at its address specified, or by Email where proof of delivery and read can be verified if required.
- Address for service of notices as per the execution details below.
- Flying Foam may provide opinions of probable cost for options provided by Flying Foam providing our opinion of probable cost of construction, it is agreed and understood by all Parties that we have no control over:
- The cost of labour, materials or equipment,
- The means, methods and procedures of the contractor’s work,
- The competitive bidding processes.
- Foreign currency exchange.
- Our opinions of probable cost are based upon current market services and provisions, experience and qualifications and represent our judgement, as a consultant/contractor familiar with the craft brewing sector and the services it requires but shall not be a guarantee that the installation costs will not vary from our opinions of probable cost.
- All information required by Flying Foam, either/or in hard copy and electronic media (including drawings) are to be issued to Flying Foam at no cost and in a format acceptable to Flying Foam.
- Access to all relevant historical data held by the Client regarding the project will be available to Flying Foam and our representatives.
- Access to the site will be provided to Flying Foam, without cost, at times that are convenient to both parties and agreed, in advance, by the Client.
- Flying Foam will produce high quality documents in electronic form (PDF, Microsoft Word, Excel, MS Project, InfoPath, CAD and other appropriate formats).
- Our fee excludes any costs to be paid to any in house Client resources or external parties directly engaged by the Client.
- Whenever Flying Foam is required to liaise with Regulatory & Statutory Authorities, our fee proposal is developed on the basis that the Authorities will provide their input without cost and in a timely manner. Should any Authority when providing any Authorisation, cause delay or additional cost to Flying Foam, or there is a Legislative Change, Flying Foam may, acting reasonably, extend the Completion Date and upon notice to the Client vary the price of the Services and/or Equipment to be supplied to ensure the recovery by Flying Foam of the resultant additional fees and costs.
- The Client must pay for (or otherwise reimburse Flying Foam at cost price in relation to) expenses approved by the Client and that are reasonably incurred in connection with the performance of the Services or the supply of the Equipment, namely those expenses properly incurred by Flying Foam:
- in performing or incidental to performing or in anticipation of performing the Services; or
- at the request of the Client; or
- with the express and written approval of the Client.
- Neither Party may disclose any Confidential Information without the consent of the other Party for any purpose other than performing its obligations under this Agreement, except if required to do so by law or a stock exchange or as strictly required in connection with legal proceedings relating to this Agreement. Each Party must maintain the confidentiality of the Confidential Information and restrict access to the Confidential Information to only those of its employees, agents and advisors who need to use such Confidential Information for purposes related to the Services.
- On termination or expiry of this Agreement or upon the request of the Party that disclosed the Confidential Information, the recipient will immediately return all documents or other material containing the Confidential Information in its possession, power or control provided that the recipient may retain one copy of Confidential Information where required to do so by law.
- The Client hereby acknowledges and consents that Flying Foam may share information or matters relating to the Client with affiliates of Flying Foam and that such affiliates may likewise share information relating to Flying Foam with the Client, however both parties agree to otherwise give each other undertakings to protect the confidentiality of information disclosed to them by the other.
- If a Party is prevented from performing its obligations under this Agreement in whole or in part by an event of Force Majeure, that Party must (a) notify the other Party immediately; and(b)within seven (7) calendar days thereafter provide the details and evidence of the event of Force Majeure and the reasons for its inability to perform its obligations, in whole or in part, or the need to delay the performance of its obligations, to the reasonable satisfaction of the other Party. Neither Party shall be liable to the other Party for any breach of this Agreement caused by an event of Force If Force Majeure prevents the performance of this Agreement for a continuous period longer than sixty (60) calendar days then either Party may terminate the Agreement by written notice to the other Party.
- Save where this Agreement specifically provides otherwise, this Agreement, constitute the entire agreement between the Parties relating to the subject matter of this Agreement and supersedes all prior negotiations, representations, proposals, understandings, letters of intent, heads of agreements or agreements, whether written or oral, relating to that subject matter.
- Notwithstanding any acceptance by Flying Foam of an order for the Services or Equipment (including acceptance of the Client’s purchase order (if applicable)), the terms and conditions of this Agreement prevail. Any addition, amendment or variation to this Agreement is binding only if it is in writing and signed by duly authorised representatives of each Party.
In this Agreement:
Background Material means all material including documentation owned by, or licensed to, Flying Foam that arose independently of this Agreement.
Claim means any cause of action, claim, demand, debt, liability, suit or proceeding of any nature however arising and whether present or future, fixed or unascertained, actual or contingent or at law (including negligence), in equity, under statute or otherwise.
Commencement Date means the date specified above or if no date is specified the date of commencement of the Services.
Completion Date means that date Flying Foam anticipates that it will complete the Services or if no date is specified the date of completion of the Services.
Confidential Information means, means any information (including know-how, trade secrets, commercially valuable information, financial information, data, ideas, concepts, processes and techniques) disclosed to a Party (“Receiving Party“) in the course of the performance of this Agreement that is not information which:
(i) is or becomes part of the public domain, other than through any breach of this Agreement;
(ii) prior to this Agreement, was independently developed by the Receiving Party or any third party; or
(iii) was rightfully received by the Receiving Party from a third person without a duty of confidentiality being owed by the Receiving Party to the third person, except where the Receiving Party has knowledge that the third person has obtained the information either directly or indirectly as a result of a breach of any duty of confidence owed in relation to the disclosed information.
Contract Material means all material developed by Flying Foam as a result of the provision of the Services during the term of this Agreement; including (but not limited to) all documentation, items, drawings, procedures and systems which are developed by Flying Foam as a result of Flying Foam performing its obligations under this Agreement.
Dispute means a dispute, difference or claim arising between the Parties either during the performance of this Agreement or after the termination or breach of the Agreement relating to the interpretation of the Agreement or any matter arising under, or relating to the Agreement.
Equipment is defined in clause 1 above.
Final Equipment Schedule means a finalised list of the equipment required for the design prepared by Flying Foam at the conclusion of Phase One – Design.
Force Majeure means any event beyond the control of a Party which prevents or impedes the performance of that Party’s obligations under the Agreement. Events of Force Majeure include, but are not limited to: storms, flood, typhoon, or other severe weather events; earthquake, landslide and other natural disasters; pandemics; riot or civil commotion, acts of war whether declared or not; fire or explosion; acts of God; strike or lockout not limited to the Services and the employees of the affected Party; and any of the above affecting a subcontractor of a Party.
GST has the same meaning as in the GST Law.
GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights means:
(i) the various rights and property conferred under statute, common law and equity in and in relation to patents, inventions, designs, copyright, trademarks, trade names, business names, corporate names, logos and get up, circuit layouts, know-how, trade secrets and confidential information and the right to have trade secrets and confidential information kept confidential and all other intellectual property rights as defined by Article 2 of the July 1967 Convention Establishing the World Intellectual Property Organisation, as amended;
(ii) all applications for registration, extension, renewal or otherwise in respect of the rights and property referred to in paragraph (i) of this definition; and
(iii) all rights of action in respect of the rights or property referred to in paragraph (i) of this definition,
(iv) moral rights and similar non assignable personal rights of any person.
Legislative Change means the introduction of a new law or a change to an existing law which:
(i) takes effect after the Commencement Date;
(ii) directly results in an increase in Flying Foam costs of carrying out the Services; and
(iii) could not have been foreseen by a prudent contractor,
but excludes a change or a new law relating to Taxes.
Party means a party to this agreement and includes its successors or permitted assigns. Parties has a corresponding meaning.
Proposal means Flying Foam’s proposal set out in pages 2-5 above.
Regulatory & Statutory Authorities means any Government Department, council, commission, or authority of any kind that may regulated the Services and/or Equipment. Authority and Authorities have the corresponding meaning.
Representative of a Party includes an employee, agent, officer, director, auditor, adviser, partner, consultant, or subcontractor of that Party.
Schedule of Deliverables is defined in in clause 1 above.
Services means the Services to be provided by Flying Foam specified in Schedule E as modified from time to time in accordance with this Agreement.
Services Scope of Work means the scope of the Services to be provided by Flying Foam.
Tax includes any tax, withholding tax, charge, rate, duty (including stamp duty and customs duty), impost, excise, tax by whatever name called, and whether Australian, foreign, state, municipal, provincial, county or local (including GST unless the context requires otherwise) including any interest, charge, penalty, fee, fine or other amount of any kind assessed, or imposed.
Taxable Supply means a taxable supply under the GST Law.