Terms and Conditions

a) Terms defined in the Schedule below have the same meanings when used in these terms & conditions, and a reference to these terms & conditions includes a reference to the agreement represented by these terms & conditions (also referred to as the Consultancy Agreement), as the case requires.

(b) The word including, or any similar expression, is not used as, nor is to be interpreted as, a term of limitation.

(c) Subject to these terms & conditions, PPA must provide the Services (other than those provided by a PPA Entity) with all due care and skill.

(d) The Client must pay the Fees to PPA.

(e) The Client acknowledges and agrees that any decision the Client makes whether, when and how, to act or not act on, or to act or not act in a manner which is inconsistent with, Advice is solely the Client’s decision and the Client takes sole responsibility for all the Client’s conduct in relation to the Services and Advice.

(f) The Client acknowledges and agrees that:

1. the Australian property environment, including the environment in specific cities and regions, can be unpredictable;
2. events, outcomes and conditions foreshadowed in, or forming the basis of, Advice may, may not, or may only partially, come to pass, and such events, outcomes and conditions may come to pass at different times to those expected or assumed by PPA and/or the Client;
3. different events, outcomes or circumstances may come to pass, or intervene, which may significantly affect expected or assumed outcomes and/or Advice given;
4. the Client will provide to PPA a complete, accurate and not misleading description and explanation of the Client’s position and circumstances and all other matters relevant to the provision of the Services, including promptly advising PPA of any change in either that position or those circumstances;
5. Advice given as part of the Services will be based on the Client’s specific position and circumstances as disclosed to PPA, and any inaccurate, misleading or nondisclosure of, or of a change in, that position or those circumstances may have a significant impact on the accuracy, reliability, appropriateness and/or completeness of any Advice given;
6. to the fullest extent permitted by law, none of PPA, any related body corporate or associated entity of PPA, and each of their respective directors, partners, officers and employees (each a PPA Entity) makes any representation or gives any warranty, express or implied, as to the accuracy, reliability, appropriateness and/or completeness of any Advice;
7. to the fullest extent permitted by law, no PPA Entity is liable for any loss, damage or shortfall alleged or suffered by the Client as a result of reliance on any Advice;
8. PPA is not obliged at any time to update any Advice once given, even if PPA becomes aware of a change in the Client’s (or any other person’s) position or circumstances or a change in any aspect of, or relating to, the Australian real property environment or any part of that environment; and
9. PPA may facilitate the entry into by the Client of an ‘Authority to proceed’ with a PPA Entity in relation to all or part of the Services. Services provided under an ‘Authority to proceed’ are also governed by these terms & conditions

(g) Where Services relate to real property which at the date of these terms & conditions is owned by an entity related to or associated with the Client (for example, a superannuation fund, company, trustee or trust) (a Related Entity):

1. the Client may disclose relevant Advice to the Related Entity; and
2. the Client enters into these terms & conditions in its own capacity and as agent for each such Related Entity, and other than in clauses (p) and (t), the term Client in these terms & conditions includes the Client in each of those capacities, with the consequence that each Related Entity is bound by these terms & conditions, including clauses (e), (f) and (h).

(h) To the fullest extent permitted by law, the Client waives any rights the Client may otherwise have against each PPA Entity in relation to the Services (and for the avoidance of any doubt, including any Advice), however arising (including by negligence).

(i) Any intellectual property rights (IPR) created in the course of providing the Services vest in PPA, but the Client is granted a licence to use (subject to clause (j)) such IPR strictly only for the purposes for which the Services were provided.

(j) The Client must keep confidential, and use all reasonable efforts to prevent disclosure to any third person of, all information provided to the Client by PPA, including trade and business secrets, financial data, business processes or procedures, technical information and other confidential information relating to PPA or its business activities, strategies or plans, other than information that is in or becomes part of the public domain other than through a breach of an obligation of confidence owed by any person to any other person.

(k) To the fullest extent permitted by law, the Client indemnifies each PPA Entity against any liability, loss, damage, cost or expense (including legal costs on a full indemnity basis) suffered or incurred by that PPA Entity directly or indirectly as a result of any breach by the Client of these terms & conditions or a warranty in them, or any liability of that PPA Entity to a Related Entity incurred in any way in relation to the Services.

(l) If the Client later wishes that a particular Related Entity will receive the benefit of any or all of the Services, the Client must first procure that such Related Entity executes a document (in a form reasonably determined by PPA) in favour of PPA and each PPA Entity, under which the Related Entity agrees, for the benefit of PPA and each PPA Entity, to be bound by the terms of these terms & conditions.

(m) The Client acknowledges and must comply with PPA’s prevailing privacy policy (available at: https://performanceproperty.com.au/privacy-policy), and warrants on an ongoing basis that it has all required consents from all individuals to disclose, use and otherwise deal with their personal information in relation to PPA and the Services, and must also comply with PPA’s other policies and procedures from time to time that are applicable to PPA’s clients.

(n) Each of PPA and the Client acknowledges that it has received valuable consideration in relation to these terms & conditions.

(o) These terms & conditions are governed by the laws of Victoria, Australia. The parties submit to the non-exclusive jurisdiction of the courts exercising jurisdiction there and the courts that may hear appeals from those courts.

(p) These terms & conditions may only be amended in writing signed by PPA and the Client.

(q) A provision of these terms & conditions or a right created under it, or a breach of any of them, may not be waived except in writing signed by the party granting the waiver.

(r) If any provision of these terms & conditions is void, voidable, unenforceable, illegal, prohibited or otherwise invalid in a jurisdiction, in that jurisdiction the provision must be read down to the extent it can be to save it, but if it cannot be saved by reading it down, words must be severed from the provision to the extent they can be to save it, but if that also fails to save it, the whole provision must be severed. Such severance will not invalidate the remaining provisions of these terms & conditions nor affect the validity or enforceability of that provision in any other jurisdiction.

(s) No provision of these terms & conditions may be construed adversely to a party solely on the ground that such party was responsible for the preparation of these terms & conditions or that provision.

(t) The Client warrants that it has express authority to enter into these terms & conditions on behalf of each Related Entity.

(u) PPA holds the benefit of these terms & conditions on trust for itself and for each PPA Entity.

(v) These terms & conditions terminate on the date PPA determines the Services have been fully provided, however, the obligations in clauses (d), (e), (f), (h), (i), (j), (k), (o), (s), (u) and (v) survive termination.