Cost Plus Contract – Cost Plus Percentage Contract – Building Contract

When to Use this Agreement

Use this cost plus contract agreement when a Contractor agrees to provide project management services to another party on a cost plus percentage basis.

The Contractor agrees to supply efficient business administration of the project, ensure an adequate supply of staff and materials and to perform the work in a most expeditious, economical and professional manner.

The Project owner agrees to reimburse the contractor for all costs incurred in providing the management services as defined in the cost plus contract agreement. Such reimbursement shall be in addition to the building contractor’s fee.

This cost plus contract defines the obligations of each party under contract and will provide you with strong legal recourse in the event of a misunderstanding arising, and/or the other party fails to fulfil its obligations while under contract. It is drafted in plain English, is easy to follow and quick to complete

COST PLUS CONTRACT Immediate Download

The Contract includes the following provisions -

• The Parties
• Work to be performed
• Compensation
• Permits
• Sub Contractors
• Insurances
• Workers Compensation
• Accounts
• Indemnification
• Termination
• Arbitration
• Amendment
• Waiver Of Contractual Right
• No Representations
• Interpretation
• Advice Of Legal Counsel
• Invalid Provisions
• Automatic Renewal
• Further Assurances
• Entire Agreement
• Applicable Law

How To Transfer or Assign Intellectual Property Rights

Intellectual Property Rights  – Deed of Assignment

Use this Deed of Assignment whenever you wish to transfer the ownership of intellectual property from one entity to another. This is an enforceable contract effectuating an assignment of intellectual property rights from an “Assignor”, the owner of the rights, to an “Assignee”, the purchaser of the rights, in exchange for valuable consideration.

Unlike an Intellectual Property License Agreement, which provides the licensee a right to use, but not to own, certain intellectual property rights. A Deed of Assignment involves a complete and exclusive sale of the rights, thus giving the assignee complete ownership to exploit the intellectual property rights in whatever way, shape, or form it likes, subject to any limitations listed in the agreement.

The transfer may include a one off cash payment or an ongoing Royalty or it may simply be the transfer from the owner to a company in exchange for shares in the company.

Immediate Download

This Deed of Assignment of Intellectual Property Rights is formatted for your convenience using Microsoft Word and is available for immediate download. You can use this template time after time, simply edit the fields as you require and print your agreement.

The agreement with easy to follow instructions includes the following provisions-

• The Parties
• Definitions
• Assignment
• Consideration
• Assignees further rights
• Warranties
• Further Assurances
• Amendment
• Liability for Expenses
• Governing Law

Sample Document Excerpt

Your ready-to-use kit includes everything you need

• Professionally drafted Deed of Assignment of Intellectual Property Rights
• Getting Started document
• Agreement Preparation Tips,Hints and Secrets
• Friendly customer support

Fundamental Principles of Contract Law

Six Fundamental Principles of Contract Law

It is important to note that your agreement is like any other contract and subject to the normal principles of Australian Contract law.

Most contracts pose no problems – they are usually a simple interchange of cash for goods. But when contracts get more complicated they can, and do, go wrong. This is less likely to occur when the parties understand what they are doing, what their rights and obligations are, and how to recognise potential problems.

A contract is a legally binding promise or a set of promises between two parties. In this context a promise is an undertaking by one person to do something or refrain from doing something if another person does something or refrains from doing something or makes a promise in return.

In order for a contract to be valid certain requirements must be met. These are:

1.Agreement
2.Consideration
3.Intention
4.Capacity
5.Genuine Consent
6.Legality

1. Agreement
There must be an offer and an acceptance with a definite agreement between the parties. In simple terms, one party must make a clear offer, and the other party must accept it.

2. Consideration
Except in very limited circumstances there can be no contract or agreement without consideration. Consideration is the exchange of promises by the parties to the contract or agreement. It can be the payment of money, the delivery of equipment, the promise to do or perform a service or work, the promise not to take an action or not to take or enforce a right.

3. Intention
Each person, on entering a contract, must intend to be bound by it. For a person to be bound to a contract, he must seriously intend to create legal obligations and have intended the agreement to have legal consequences.

4. Capacity
Both parties in a contract must have the necessary mental capacity to understand what they are doing. Under common law anyone has the right to enter into a contract but the following groups of people are considered likely to lack the necessary capacity to a certain extent:

• young people (persons under the age of eighteen);
• people who have a mental impairment (including an intellectual disability); and
• people under the influence of drugs or alcohol.

For a person to avoid a contract on the ground of their incapacity, they must also show that they lacked capacity to enter into a contract and that the other party knew or ought to have known their incapacity.

A contract is voidable at the option of a party who, as a result of mental disorder or intoxication, is unable to understand the nature of the contract being made – provided that the other party knew, or ought to have known, of that person’s disability. The party seeking to withdraw from the contract has the onus of proving both these requirements – that is

• that they were suffering from such a disability and
• that the other party was – or ought to have been – aware of it.

5. Genuine consent
Both parties agree to the contract of their own free will; A party’s genuine consent is an essential element of a legally binding contract.

Genuine consent to enter into a contract can be affected by a number of issues. For example, during the contractual negotiations, there may have been:

• Undue influence. Undue influence exists there is an inequality of power between the contracting parties which results in the weaker party entering into a contract with the dominant party. Where the weaker party cannot be said to have entered into the contract voluntarily because of the influence of the dominant party, the influence is said to be ‘undue’ and the court may set the contract aside.
• Mistake Where a mistake has occurred which shows that the parties have agreed to different things, or where there are such different beliefs that the contract was never properly understood, the contract may be declared void. Mistake is a complex area of contract law and one where judges have traditionally been pretty unsympathetic to someone who argues that he or she has made a terrible mistake. As a general rule, being mistaken about some aspect of a contract will not provide a party with a right to escape contractual obligations – even if that mistake is fundamental.
• Misrepresentation is the giving of false information by one party to the other before the contract is made, which induces them to make the contract. If you make a contract in reliance on a misrepresentation and suffer loss as a result, you can cancel the contract or claim damages.
• Duress; Duress is defined as ‘actual or threatened violence to an individual to obtain a contractual promise’. If it is established that consent is obtained through duress then the weaker party may choose to avoid the agreement.
• Unconscionable conduct; Unconscionable conduct also deals with transactions between dominant and weaker parties; it therefore overlaps with duress and undue influence.

Each of these factors or events may mean that consent was not freely given by one of the parties and that party may therefore be able to avoid their contractual obligations.

6. Legality
A contract may be illegal because its subject matter is prohibited by statute or because it infringes a rule of public policy. A contract containing illegal acts, promises or objects would violate this condition.

For example, a contract whereby party A agrees to supply party B with a large quantity of cocaine if B kills C will obviously be considered fundamentally illegal. Where a contract is classified as illegal or contrary to public policy it is generally held to be unenforceable.- but many contracts are not so obviously illegal. As an example, a contract to sell your car to a friend without a roadworthy certificate might be illegal because of the restrictions placed on the sale and purchase motor vehicles by the Transport Operations Act 1995 (Qld).

Following these six principles will ensure your agreement is legally binding and provides the protection and outcome you expect.

©RPEmery & Associates 2010 All Rights Reserved

Legal Disclaimers Samples and Tips

Using Legal Disclaimers

Posted or “printed matter” disclaimers can reduce your liability exposure by telling readers and customers that they do business with you or use your information at their own risk. The clauses can provide you with a legal defence if a patron tries to sue you for harm caused by your product or service.

“Reducing Expense Risks . . .!”

Some service companies use disclaimers to reduce expense risks, such as car rental contracts that usually offer customers the opportunity to buy additional collision insurance—with the disclaimer that the agency will not be responsible for collision damage unless they do so.

“You strive to set customers
expectations at an acceptable level”.

Retailers can reduce their responsibility for product repairs by placing phrases such as, “There are no warranties, expressed or implied, other than those set forth in this agreement,” on their terms of services or sales receipts.

Businesses can also use disclaimers to set customer expectations at an acceptable level. “You’re better off being up front with people” by prominently posting your store’s refund policy, and it puts you in good standing with the law.

Deciding where to place disclaimers

Deciding where to place disclaimers depends on the nature of your business. Typically, businesses include them in contracts, purchases orders or hang signs inside the property.

For example, parking garages should post disclaimers on tickets or on signs. “Dry cleaners may have disclaimers on their walls,” or “A retail outlet may post its return policy on the wall or on its credit card receipts.”

A Typical Internet Website Disclaimer

“THE MATERIALS ON THIS WEBSITE ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OF INTELLECTUAL PROPERTY OR FITNESS FOR A PARTICULAR PURPOSE. SITE OWNER OFFERS NO ASSURANCE OF UNINTERRUPTED OR ERROR FREE SERVICE. SITE OWNER DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED ON THIS WEB SITE. SITE OWNER MAY CHANGE ANY OF THE INFORMATION FOUND AT THIS SITE AT ANY TIME WITHOUT NOTICE INCLUDING THE TERMS OF SERVICE WITHOUT NOTICE. SITE OWNER MAKES NO COMMITMENT TO UPDATE THE INFORMATION FOUND AT THIS SITE. IN NO EVENT SITE OWNER BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION) ARISING OUT OF THE USE OR INABILITY TO USE THE MATERIAL OR INFORMATION AVAILABLE ON THIS SITE, EVEN IF SITE OWNER HAS BEEN ADVISED OF SUCH DAMAGES. (BECAUSE IF YOU DON’T TELL THE CONSUMER THIS YOU CAN EASILY INVALIDATE YOUR DISCLAIMERS. HOWEVER, THE ABOVE LIMITATIONS MAY NOT APPLY IN SOME CASES.)

For All Your Legal Contract Needs See R P Emery & Associates

© RPEmery & Associates 2010 all rights reserved. Copying or reproducing this material is forbidden unless with prior written consent from the publisher

Queensland Retail Lease Laws and Contracts

Queensland Retail Lease Contracts and Laws

Many Australian state governments have expanded their concept of consumer protection to include small business consumers who were bargaining on a far from level playing field, where owners of large shopping centres had all the advantages and all the power. They seek to provide this protection by making sure that prospective tenants have sufficient information to make a sound business decision when entering into or renewing a lease.

Recent amendments clearly offer further protection to tenants, the Government regarding them as the less powerful party in most retail leasing transactions.  As a result, the amendments require greater responsibility and pro-active behaviour from the Landlord.

The Retail Shop Leases Act 1994 (“the Act”) does not apply to a shop with a lettable area of 1,000 square metres or more but will apply to a sub-lease of space in the shop if the space which is sub-let has a lettable area of less than 1,000 square metres. A lease for a term of less than 6 months (without any option of the tenant to renew) is excluded. There is some discussion as to whether void areas, such as, for example, stairwell areas and areas adjacent to mezzanine floors, are part of the lettable areas as they are not be used to provide the retail services for which the premises are dedicated even if the landlord pays rent on them.

Disclosure statements:

The Law in Queensland, is very clear:

A landlord in a retail lease must not, in connection with the lease, engage in conduct that that is misleading or deceptive to a tenant or guarantor. A  party who suffers damage by reason of misleading or deceptive conduct of another party may make a claim for compensation.

If the landlord now does not provide a statement or provides a statement that is incomplete or contains information that is false or misleading in a material particular, then the landlord is deemed to have issued a defective statement, both which entitle the tenant to terminate the lease by written notice to the landlord within six months after the tenant enters into the lease. The landlord is also liable to pay reasonable compensation for any loss or damage suffered by the tenant because of such non-compliance or defective statement.

If a landlord fails to give sufficient information it is guilty of Unconscionable Conduct. At the disclosure stage, Landlords and their agents will now be required to provide a copy of a retail tenancy guide to any prospective tenant as soon as negotiations are entered into.  The law requires the landlord to give the tenant a disclosure statement at least seven days before entering into the lease. Tough penalties apply if it isn’t, or if the statement is inaccurate. In particular, the Act renders void lease provisions which require any tenant’s payment for contribution to fit out that has not been disclosed in a disclosure statement. In most states law entitles the tenant, if he/she gives you the proper notice, to withhold payment of rent until the disclosure requirements are complied with (but any rent paid is non refundable).

In Queensland, the disclosure statement requires the landlord to reveal if the relevant local authority has approved plans for future alterations or additions to the shop, and, if so, whether it is presently intended that these works will be commenced during the term of the lease.

The only way a tenant cannot end the lease in case of inadequate disclosure is where:

a)the landlord has acted honestly and reasonably and ought reasonably to be excused for the failure concerned, and
b)the tenant is in substantially as good a position as the tenant would have been if the failure had not occurred.

If a lease is entered into by way of the renewal of a lease on the exercise of an option, a landlord should make a fresh disclosure statement.

Disclosure – tenant’s/assignee’s obligations

The requirement for a tenant to give a landlord a disclosure statement is now mandatory, although there is no reciprocal right of termination for a landlord should a tenant fail to provide one. It will, however, create a retail tenancy dispute at the landlords’ election.

Similarly, the requirement for an assignee to give a landlord a disclosure statement and for an assignee to give an assignor a disclosure statement is now mandatory.

For new leases a copy of the unsigned agreement must be provided (with the names and addresses of the parties included), along with a disclosure statement, In all states, landlords should provide the tenant with a copy promptly.

A copy of the proposed lease has to be provided once it has been signed. The copies can be photocopies. If a full copy of the lease isn’t supplied, or isn’t within 28 days of it being signed, or the disclosure statement is wrong, the tenant can also end the lease.

The tenant doesn’t have to pay for any fit-out contributions if the liability to pay them is not disclosed in the disclosure statement.

Landlords may be kept on their toes throughout the duration of the lease with new powerful remedies for tenants to withhold payments when information is not provided on time. This can particularly occur in the case of providing estimates or statements of outgoings.  Strata levies are also to be included in the list of outgoings.

The landlord can’t demand that a tenant pay key money.

No Minimum term 5 years in Queensland.

However, where a lease does not contain an option the tenant does have a right to request a renewal and the landlord is under an obligation to respond in an approved form stating the terms on which the lease will be renewed. Refer generally to section 46 of the Act.

Rent Increases.

At the end of each lease period, In Queensland, only one rental increase a year is allowed except in the first year.

Outgoings.

A written estimate must be provided, before entering into the lease and 1 month before the start of each accounting period, of the outgoings to which the tenant is liable to contribute under the lease, (including rates, taxes and shares of things like car parking contributions) otherwise the tenant does not have to pay them. If the tenant is required to pay for a share of other expenses (other than usual outgoings – such as marketing expenses) an audited account must be provided, which is generally both too hard and too expensive. Any outgoings statement must be audited by a registered company auditor.

The landlord can’t ask a tenant for capital costs or interest on their loans. In Queensland, the landlord also can’t ask the tenant to pay legal or other expenses relating to drawing up of the lease, the disclosure statement or other documents required by the Act.

The landlord can ask for reimbursement in respect of any assignment of the lease or a sublease, including investigating anyone’s suitability. However, the Queensland Act seeks to limit recovery for operating expenses by providing that the annual statement of expenditure, which must be furnished by the landlord to the tenant within three months after the termination of an accounting period. This statement must be itemised so that the amount allocated to each item shall not exceed five per cent of the total expenses shown except in relation to any tax, impost or charge levied by the State, or any one component that cannot be dissected so as to comply with the limiting provision.

There may be special additional outgoings, special items of equipment and additional insurance risks that may need to be covered – for example chemicals used in beauty salons may need chemical storage cupboards, extractor fans and special insurance provisions with the additional outgoing of a special fire levy.

Bond.

The landlord may ask for a bond, or security deposit. If received, in Queensland it is not compulsory to put it in an interest bearing account , or otherwise leave it in a lawyer’s or realtor’s trust account… the interest belongs to the tenant. The landlord must return a security deposit to the tenant as soon as practicable after the lease ends where the tenant has performed all obligations under the lease.

The tenant has the option to provide a bank guarantee instead of a security deposit. Any security deposit must be held in an interest bearing account, the interest being added to and held with the principal.

Breaches.

The landlord is required to give the tenant a notice of breach and at least 14 days to rectify the breach prior to the landlord entering the premises.

Renewal – options.

In all states, if an option for renewal is not exercised at the right time it will be lost.
The tenant can exercise an option for renewal even if there has been a breach of the lease – generally the lease will set out the provisions for exercise of the option. At least two months, but no more than six months, before the option date, the landlord must give the tenant written notice of the option date. Failure to comply may result in a maximum penalty of at least $3000.

If a lease does not provide for an option to renew or extend the lease, or it is not the subject of an agreement for renewal or extension, a landlord will be required to give written notice to the tenant as to whether or not it intends offering a new lease. This notice period will vary depending upon the length of the lease term. In the case of a lease longer than one year it must be given at least six months, but no longer than one year, before the lease is due to end. The failure to provide the notices in a timely manner can result in a monetary penalty being imposed upon the landlord or an unexpected lease extension.

Registration.

If the term of the lease is more than three years the Property Law Act 1974 requires that the lease be registered. Although it is not compulsory, leases of less than three years may also be registered. The Department of Natural Resources and Water (Titles Registration) is responsible for the registration of leases.

The registration process is designed to protect both landlords and tenants by creating an official record of the lease. If the leased premises are sold, the tenant would be afforded protection under a registered lease. A landlord can require the tenant to contribute to the expenses associated with the registration of a lease, including survey fees.

How to get a Professional Legal Retail Lease Agreement at a fraction of the usual cost

This Commercial Retail Tenancy kit is suitable for the occupation of most strip type shops in Queensland. It is not intended for retail shopping centres with more than 5 shops in a cluster.

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If you require a Non Retail lease visit Commercial Property lease

Our retail tenancy kit with easy to follow instructions gives you the tools you need to successfully manage your Qld shop tenancy.

It guides you every step of the way to ensure your compliance with the Retail Shop Leases Act 1994 .

IMMEDIATE DOWNLOAD

© RPEmery & Associates 2010 all rights reserved. Copying or reproducing this material is forbidden unless with prior written consent from the publisher