Settlement Agreement - Template, Sample Form Pro · AU-law
✓ Valid in Australia · drafted to comply with local law
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DEED OF SETTLEMENT AND RELEASE
This Deed of Settlement and Release ("this Deed") is made on ________.
BETWEEN:
________ (ABN/ACN ________)
of the following address:
________ ("First Party")
AND
________ (ABN/ACN ________)
of the following address:
________ ("Second Party")
(referred to herein collectively as the "Parties" and individually as a "Party")
§1 BACKGROUND (RECITALS)
(1.1) A dispute has arisen between the Parties as more particularly described in §4 of this Deed ("the Dispute").
(1.2) The Parties wish to compromise, settle and finally resolve all claims arising out of or in connection with the Dispute without any admission of liability, and to avoid the cost, delay and uncertainty of litigation.
(1.3) In consideration of the mutual promises, covenants and releases set out in this Deed, the Parties agree and covenant as follows.
§2 DEFINITIONS
In this Deed, unless the context otherwise requires:
"Agreement Date" means ________, being the date of execution of this Deed.
"Business Day" means a day which is not a Saturday, Sunday or public holiday in ________.
"Deed" means this Deed of Settlement and Release.
"Dispute" means the dispute between the Parties described in §4 of this Deed.
"GST" has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
"Parties" means the parties to this Deed and "Party" means any one of them.
"Payment" means the payment described in §10 of this Deed.
"Proceedings" means the proceedings described in §5 of this Deed.
"Released Party" has the meaning given in §9 of this Deed.
"Releasing Party" has the meaning given in §9 of this Deed.
§3 INTERPRETATION
In this Deed, unless the context otherwise requires, the following rules of interpretation apply:
(3.1) Words referring to one gender include every other gender.
(3.2) Words in the singular include the plural and words in the plural include the singular.
(3.3) Where a word or phrase is defined, any grammatical variation of that word or phrase has a corresponding meaning.
(3.4) A reference to a person includes a natural person, firm, body corporate, association, partnership, joint venture, trust, authority, government body or other legal entity, and vice versa.
(3.5) A reference to time is a reference to time in ________.
(3.6) Where anything must be done under this Deed on or before a particular date and that date is not a Business Day, that thing must be done on or before the next Business Day.
(3.7) An obligation on a Party not to do something includes an obligation not to permit or allow that thing to be done.
(3.8) Headings are included for convenience only and do not affect interpretation.
(3.9) A reference to legislation or a provision of legislation includes any subordinate, amended, consolidated or replacement legislation.
(3.10) A reference to a document or agreement includes that document or agreement as amended, replaced, supplemented or novated from time to time.
(3.11) A reference to a Party includes that Party's successors, permitted assigns, executors, administrators and legal personal representatives.
(3.12) A reference to money or currency is a reference to Australian dollars unless otherwise specified.
(3.13) Where this Deed is executed by more than one person comprising a Party, those persons are bound jointly and severally.
§4 THE DISPUTE
The particulars of the Dispute between the Parties are as follows:
________
§5 PROCEEDINGS
(5.1) In relation to the Dispute, the Parties have been or are involved in the following proceedings ("Proceedings"):
________
(5.2) The Parties agree that, upon execution of this Deed and within ________ Business Days of receipt of the Payment:
(5.2.1) the Proceedings will be discontinued or dismissed by consent, with each Party to bear its own costs save as otherwise provided in §7; and
(5.2.2) the Parties will execute and file all consent orders, notices of discontinuance or other documents necessary to give effect to §5.2.1.
(5.3) In the event that a Party fails to comply with a material term of this Deed, the other Party may, without prejudice to any other right or remedy, apply to reinstate the Proceedings and rely on this Deed in support of that application.
§6 SETTLEMENT
The Parties have agreed to compromise and settle the Dispute in full and final settlement upon the terms and conditions set out in this Deed.
§7 LEGAL COSTS
The Parties agree that the legal costs of and incidental to the Dispute, the Proceedings and this Deed will be borne and paid in the following manner:
________
§8 ENTIRE AGREEMENT
This Deed constitutes the entire agreement between the Parties in relation to its subject matter and supersedes all prior negotiations, representations, understandings and agreements, whether oral or written. Each Party acknowledges that it has not relied on any representation, warranty, promise or statement made by or on behalf of any other Party, other than as expressly set out in this Deed.
§9 CONSIDERATION AND RELEASE
In consideration of:
(9.1) the execution of this Deed; and
(9.2) each Party's respective abandonment of its rights arising out of any Claims; and
(9.3) the Payment,
each Party ("the Releasing Party") irrevocably and unconditionally releases and forever discharges each other Party ("the Released Party"), together with each of the Released Party's officers, employees, directors, agents, contractors, related bodies corporate, assignees, successors and other representatives, from any and all Claims which the Releasing Party has or may at any time have or incur against the Released Party (or any of the persons referred to above) arising out of or in connection with the Dispute.
§10 PAYMENT
(10.1) In consideration for the release given under §9 of this Deed, ________ will pay to ________ the following amount ("Payment"), being inclusive of GST (if any):
$________ (________)
(10.2) The Payment must be made on or before ________ by electronic funds transfer to the following account, and payment to that account constitutes valid discharge of the obligation to pay:
________
(10.3) Unless this Deed expressly states otherwise, all amounts are exclusive of GST. If GST is payable on any supply made under this Deed, the recipient must pay an additional amount equal to the GST upon receipt of a valid tax invoice.
§11 RECEIPT OF PAYMENT
________ acknowledges that, upon receipt of the Payment in accordance with §10, this Deed operates as a sufficient receipt for the Payment.
§12 SUFFICIENCY OF PAYMENT
________ acknowledges and agrees that the Payment constitutes good, valuable and sufficient consideration for the release and covenants given under this Deed.
§13 ACKNOWLEDGEMENTS
The Parties further acknowledge and agree:
§14 BAR TO FURTHER PROCEEDINGS
Subject to any right to reinstate the Proceedings under §5.3, the Parties expressly agree that this Deed may be pleaded as a full and complete defence and an absolute bar to any Claim, suit, action or proceeding that any Party (or any of its officers, employees, directors, agents, contractors, related bodies corporate, assignees, successors or other representatives) may bring at any time arising out of or in connection with the Dispute.
§15 FULL AND FINAL SETTLEMENT
Each Party expressly acknowledges and agrees that the Payment is the sole consideration under this Deed, is accepted voluntarily, and is given and received in full and final settlement of any and all Claims for any losses, damages, injuries, costs or otherwise arising out of or in connection with the Dispute, whether presently known or unknown.
§16 WARRANTIES REGARDING LEGAL ADVICE AND CAPACITY
(16.1) Each Party (the "Warranting Party" as the context requires) respectively warrants and represents that:
(16.1.1) it fully understands the terms and effect of this Deed and enters into it freely and voluntarily;
(16.1.2) it has had the opportunity to obtain independent legal advice in relation to the matters addressed by this Deed and has either:
(16.1.2.1) obtained such independent legal advice; or
(16.1.2.2) elected not to obtain such independent legal advice;
(16.1.3) it has the full power, capacity and authority to enter into and perform its obligations under this Deed, and where it is a body corporate, execution has been duly authorised; and
(16.1.4) it has not been induced to enter into this Deed by any representation made by or on behalf of any other Party, except as expressly set out in this Deed.
(16.2) This §16 survives termination or expiration of this Deed.
§17 NO ADMISSION OF LIABILITY
Nothing in this Deed, nor any payment or act done pursuant to it, constitutes or is to be construed as an admission of liability, wrongdoing or fault by any Party.
§18 CONFIDENTIALITY
(18.1) Subject to this §18, the Parties agree to keep the terms of this Deed and the negotiations leading to it strictly confidential.
(18.2) A Party may disclose details of this Deed ("Details"):
(18.2.1) to its legal, financial or accounting advisors ("Advisors"), provided the disclosing Party first procures that those Advisors are bound to keep the Details confidential on terms at least as onerous as those in this Deed;
(18.2.2) to the extent required by law, by an order of a court or tribunal, or by the rules or requirements of any stock exchange, taxation authority or regulatory authority; or
(18.2.3) with the prior written consent of the other Party.
(18.3) Nothing in this §18 prevents a Party from making any disclosure required to give effect to or enforce this Deed.
(18.4) This §18 survives termination or expiration of this Deed.
§19 NON-DISPARAGEMENT
Each Party agrees not to make, publish or cause to be made or published any statement that disparages, denigrates or is reasonably likely to harm the reputation of the other Party or any of its officers, employees, directors, agents, contractors, related bodies corporate, assignees, successors or other representatives, subject always to any disclosure required by law.
§20 NOTICES
(20.1) Any notice under this Deed must be in writing in the English language and delivered by hand, prepaid post or email to the address of the relevant Party set out at the beginning of this Deed or to the email address notified in writing by that Party.
(20.2) A notice is taken to be received: if delivered by hand, on delivery; if sent by prepaid post, on the third Business Day after posting; and if sent by email, at the time the email enters the recipient's information system, provided no delivery failure notification is received.
§21 TERMINATION
This Deed may be terminated where a Party breaches a material term of this Deed and fails to remedy that breach within ________ Business Days of written notice from the other Party requiring it to do so, or where a change in the law renders this Deed unenforceable. Termination does not affect accrued rights or remedies of any Party.
§22 GENERAL PROVISIONS
(22.1) GOVERNING LAW AND JURISDICTION: This Deed is governed by and construed in accordance with the laws in force in ________ and the applicable laws of the Commonwealth of Australia. Each Party irrevocably submits to the non-exclusive jurisdiction of the courts of ________ and the courts competent to hear appeals from them.
(22.2) LANGUAGE: All communications and notices under this Deed must be in the English language.
(22.3) AMENDMENTS: This Deed may only be amended or varied by a written instrument signed by all Parties.
(22.4) RIGHTS, REMEDIES AND POWERS: Unless expressly provided otherwise, the rights, remedies and powers of a Party under this Deed are cumulative and in addition to any rights, remedies or powers conferred by law or in equity.
(22.5) SURVIVAL: Any provision of this Deed which by its nature would be expected to survive termination or expiration, including §16, §18 and the releases in §9, continues in full force and effect.
(22.6) NO WAIVER: A right under this Deed may only be waived in writing signed by the Party granting the waiver. No failure or delay by a Party in exercising a right operates as a waiver of that or any other right.
(22.7) SEVERABILITY: If any provision of this Deed is held to be invalid, illegal or unenforceable, that provision is to be read down to the extent necessary or, if it cannot be read down, severed, and the remaining provisions continue in full force and effect.
(22.8) ASSIGNMENT: A Party must not assign, transfer or otherwise deal with any of its rights or obligations under this Deed without the prior written consent of the other Party.
(22.9) COUNTERPARTS: This Deed may be executed in any number of counterparts, including by electronic means, each of which is an original and all of which together constitute one instrument. Where the execution dates differ, this Deed takes effect on the date the last Party signs.
(22.10) FORCE MAJEURE: Neither Party is liable for any failure or delay in performance due to causes beyond its reasonable control, including acts of God, natural disasters, fire, flood, pandemic, acts of civil or military authority, riots and embargoes.
(22.11) FURTHER ASSURANCES: Each Party must do all things and execute all documents reasonably required to give full effect to this Deed and the rights and obligations of the Parties under it.
EXECUTED AS A DEED ON ________
Executed by ________:
____________________________________
Signature of ________
____________________________________
Name and capacity of signatory: ________
In the presence of:
____________________________________
Witness Signature
____________________________________
Witness Name: ________
____________________________________
Witness Occupation: ________
____________________________________
Witness Address: ________
Date: ________
Executed by ________:
____________________________________
Signature of ________
____________________________________
Name and capacity of signatory: ________
In the presence of:
____________________________________
Witness Signature
____________________________________
Witness Name: ________
____________________________________
Witness Occupation: ________
____________________________________
Witness Address: ________
Date: ________
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