Terms & Conditions

The following Terms and Conditions govern the supply of goods and services by members of the CPR Group.

1. Definitions

In these Terms and Conditions:

  1. Approval means any approval, authorisation, certificate, consent, determination, exemption or permit of any Government Authority;
  2. Business Day means a day that is not a Saturday, Sunday, or bank or public holiday in New South Wales;
  3. Charges means the charges payable for the Supply, set out in the Order Confirmation or elsewhere in the Contract, subject to any adjustment in accordance with the Contract.
  4. Commencement Date means the date on which the Contract is formed;
  5. Confidential Information means any information provided by or on behalf of the Disclosing Party to the Receiving Party:
    1. which the Disclosing Party has identified as confidential; or
    2. the Receiving Party ought reasonably to know is confidential,but excludes any information of the Disclosing Party that:
    3. is in or becomes part of the public domain other than through a breach of the Contract by the Receiving Party; or
    4. was already in the Receiving Party’s possession at the time of receipt from the Disclosing Party without any obligation of confidentiality to the Disclosing Party;
  6. Contract means:
    1. any contract to which these Terms and Conditions are expressed to form part; or
    2. for supply pursuant to an Order, the contract (which includes these Terms and Conditions) formed upon the Customer’s unconditional acceptance of a Quotation or the Supplier’s issue of an Order Confirmation, whichever occurs first;
  7. CPR Group means:
    1. AJC Specialised Services Pty Ltd ACN 644 642 393 trading as CPR Automotive Services;
    2. AJC Specialised Services Pty Ltd ACN 644 642 393 trading as CPR Truck and Trailer Repairs;
    3. CPR Fabrication and Engineering Pty Ltd ACN 674 266 310;
    4. Alexander Cooper Investments Pty Ltd ACN 615 724 144 trading as CPR Plant Repairs and Maintenace; and
    5. each Related Body Corporate of AJC Specialised Services Pty Ltd ACN 644 642 393 or Alexander Cooper Investments Pty Ltd ACN 615 724 144.
  8. Customer means the person to whom a Quotation is addressed, or if there is no Quotation, the customer identified in the Order Confirmation;
  9. Customer Materials means any material or other documents provided by or on behalf of the Customer (if any) in connection with the Contract;
  10. Customer Site means a site owned or occupied by the Customer to which the Supplier requires or is given access in connection with the performance of the Supply;
  11. Customer Supplied Items means use of and access to infrastructure, plant, equipment, tools or other items the Customer and the Supplier agree that the Customer will supply in connection with the Supply;
  12. Defaulting Party means a party subject to an insolvency event in accordance with clause 20;
  13. Delay Event means:
    1. a Force Majeure Event;
    2. a breach of this agreement by the Customer; and
    3. a delay attributable to any act or omission of the Customer or any other contractor or sub-contractor of the Customer including a delay in the performance of works, providing instructions, giving consent or providing access to any site to enable the performance of the Supply;
  14. Disclosing Party means a party whose Confidential Information is disclosed, communicated or delivered or otherwise made known to the other party;
  15. Force Majeure Event means any event or cause beyond the reasonable control and without default or negligence of the party claiming force majeure (provided such party has taken reasonable precautions);
  16. Government Authority means any Federal, State or local government, and any agency, department, directorate or instrumentality thereof, including any independent regulator deriving power from statute;
  17. GST Law means A New Tax System (Goods and Services Tax) Act 1999 (Cth);
  18. Insolvency Event means any of the following events in respect of any party:
    1. the party disposes of the whole or part of its assets, operations or business other than in the ordinary course of business;
    2. the party ceases to carry on business or is deregistered;
    3. the party ceases to be able to pay its debts as they become due;
    4. any step is taken by a mortgagee to take possession or dispose of the whole or part of the party’s assets, operations or business;
    5. any step is taken to enter into any arrangement between the party and its creditors;
    6. any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, an administrator or other like person to the whole or part of the party’s assets, operations or business;
    7. where the party is a partnership, any step is taken to dissolve that partnership or a partner dies; or
    8. where the party is an individual, the party dies;
  19. Intellectual Property Rights means any and all intellectual property rights granted by law or equity from time to time, including trade marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, circuit layout rights, and all similar rights in any part of the world (including know-how) including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations
  20. Interest Rate means 4% per annum above the Cash Rate Target specified by the Reserve Bank of Australia from time to time;
  21. Invoice means a tax invoice issued by the Supplier in relation to the Supply;
  22. Labour Hire Personnel means Personnel supplied by the Supplier to perform Labour Hire Services;
  23. Labour Hire Services means any Services constituted by the hire of labour by the Supplier to the Customer;
  24. Law means any present and future applicable law including legislation, ordinances, regulations, codes, by-laws, orders, judgments, ordinances and other subordinate legislation, in force from time to time in any applicable jurisdiction;
  25. Loss means damage, loss, cost, expense, suit, charge, action, right or action, or liability (whether actual or contingent);
  26. Order means an order placed by the Customer with the Supplier for the acquisition of Goods or Services, whether made in writing, electronically (including by email) or verbally;
  27. Order Confirmation means the confirmation of an Order issued by the Supplier to the Customer;
  28. Personnel of a party means officers, employees, agents, contractors, subcontractors and secondees of that party and its Related Bodies Corporate, except that:
    1. the Supplier and its officers, employees, agents, contractors, subcontractors and secondees are not Personnel of the Customer; and
    2. the Customer and its officers, employees, agents, contractors, subcontractors and secondees are not Personnel of the Supplier;
  29. PPSA means the Personal Property Securities Act 2009 (Cth);
  30. Quotation means a written quotation by the Supplier for the proposed Supply;
  31. Receiving Party means a party who is in receipt of Confidential Information of the other party;
  32. Related Body Corporate has the same meaning as in the Corporations Act 2001 (Cth);
  33. Services means any services supplied or to be supplied by the Supplier to the Customer pursuant to the Contract, and where the context requires, includes Labour Hire Services;
  34. Special Condition means the special conditions, if any, set out in the Contract;
    1. Supplier means the CPR Group member who issues the Order Confirmation or otherwise enters the Contract with the;
  35. Supply means the supply of Goods or Services by the Supplier to the Customer pursuant to the Contract;
  36. Term means the period commencing on the Commencement Date and ending on completion of performance of the Supply in accordance with the Contract or earlier lawful termination;
  37. Terms and Conditions means these terms and conditions of supply; and
  38. Variation has the meaning given in clause 18.1.

2. Interpretation

2.1 In the Contract, headings and bold text are for ease of reference only and do not affect the interpretation of this agreement and, unless the context otherwise requires:

  1. the singular includes the plural and vice versa;
  2. another grammatical form of a defined word or expression has a corresponding meaning;
  3. a reference to a clause, paragraph or schedule is to a clause or paragraph of or schedule to the Contract and a reference to the Contract includes any schedule or annexure;
  4. a reference to a document or instrument, includes the document or instrument as novated, altered, supplemented or replaced from time to time;
  5. a reference to a party to the Contract, and a reference to a party to a document includes the party’s executors, administrators, successors and permitted assigns and substitutes;
  6. a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them;
  7. the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; and
  8. a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of the Contract or any part of it.

2.2 If a Party consists of more than one person, the obligations of each person are joint and several

3. Application of these Terms and Conditions

3.1 The Terms and Conditions apply to every Order, unless otherwise agreed in writing by the Supplier. Placement of an Order by the Customer is evidence of the Customer’s acceptance of the Terms and Conditions.

3.2 Any purported incorporation of other standard terms and conditions by the Customer is void and of no effect, unless specifically identified in the Contract.

3.3 The Contract constitutes the entire agreement between the Customer and the Supplier with respect to an Order. All prior negotiations, proposals, previous dealings, correspondence, trade custom or trade usage are superseded by and will not affect the interpretation of the Contract.

3.4 If there is any inconsistency between any of the documents comprising the Contract, the documents will rank, in the following order of precedence, from highest to lowest:

  1. the Special Conditions (if any);
  2. the Order Confirmation;
  3. the Quotation (if any);
  4. these Terms and Conditions; and
  5. any other document incorporated by reference in the Contract.

4. Quotations, Orders and Contract Formation

4.1 A Quotation is an offer to perform the Supply and will not create any contract except in accordance with clause 4.4.

4.2 Unless the Quotation states otherwise, any Quotation is provided on the basis that the Supply will be subject to these Terms and Conditions.

4.3 Unless otherwise stated in writing, all Quotations will automatically lapse thirty (30) days after the date of the Quotation. In any event, the Supplier may withdraw, revoke or vary a Quotation at any time prior to its acceptance.

4.4 A Contract is formed and binding on the parties:

  1. if the Customer issues an Order validly accepting a Quotation, without any qualification, when the Supplier receives the Order; or
  2. if there is no Quotation or if the Customer purports to qualify its acceptance of a Quotation or vary the terms of a Quotation, when the Supplier issues an Order Confirmation to the Customer.

5. Services

5.1 This clause 5 applies if the Contract includes the supply of Services.

5.2 The Supplier agrees to provide the Services in accordance with the Contract.

5.3 The Supplier must do and provide all things reasonably necessary for the provision of the Services, including supply at its own expense all labour, plant, equipment, tools, appliances or other property and items the Supplier requires to perform the Services and otherwise fulfil its obligations under the Contract, except for any Customer Supplied Items.

5.4 The Supplier must provide appropriately qualified, accredited, licenced and trained Personnel to provide the Services.

5.5 The Supplier must use all reasonable endeavours to perform the Services by the date specified in the Contract (Completion Date) or as otherwise agreed in writing by the parties and subject to any extension of time under the Contract. If no Completion Date is specified or agreed, the Supplier must use reasonable endeavours to undertake the Services in a timely manner and any agreed program.

5.6 If the Supplier is likely to be delayed in completing the Services by the Completion Date by a Delay Event, the Supplier will be entitled to an extension of the Completion Date by a period of not less than the duration of a Delay Event.

5.7 Within a reasonable time after the Supplier becomes aware of a Delay Event, the Supplier must notify the Customer of the Delay Event and the new Completion Date.

5.8 If:

  1. a Force Majeure Event; or
  2. a breach of this agreement by the Customer,

occurs and the Supplier incurs additional costs in relation to such event, the Supplier is entitled to claim, and the Customer must reimburse the Supplier for, the actual costs reasonably incurred by the Supplier in relation to the delay.

5.9 Unless the Contract provides otherwise, if the Services are to be provided at the Customer Site, the Customer is responsible for:

  1. obtaining all Approvals in connection with the Services;
  2. ensuring that the Supplier has clear and uninterrupted access to any Customer Site to enable the performance of the Services; and
  3. securing any such site during the performance of the Services.

6. Labour Hire Services

6.1 This clause 6 applies if the Supply includes Labour Hire Services.

6.2 The Customer must:

  1. disclose to the Supplier:
    1. the specific tasks and duties required to perform the Labour Hire Services;
    2. the equipment to be used by the Labour Hire Personnel; and
    3. where the Labour Hire Services will be performed;

    to enable the Supplier to match the competency, skill, knowledge, and experience of the Labour Hire Personnel to the Labour Hire Services;

  2. disclose to the Supplier any relevant industry standards and practices, design and engineering assumptions, and occupational health and safety systems that the Labour Hire Personnel must comply with in relation to their performance of the Labour Hire Services;
  3. supervise, monitor, manage and direct the Labour Hire Personnel in the performance of the Labour Hire Services;
  4. not direct the Labour Hire Personnel to perform any work for which they are not adequately trained or qualified and take reasonable steps to prevent them from doing so;
  5. identify where additional skills or development are required by the Labour Hire Personnel in the performance of the Labour Hire Services at the Customer’s Site. If additional skills or development is required, the Customer must:
    1. notify in writing and consult with the Supplier in relation to the additional skills and development required by the Labour Hire Personnel to perform the Labour Hire Services; and
    2. provide any induction, training or instruction as required to address the additional skills and development required by the Labour Hire Personnel to perform the Labour Hire Services; and
  6. provide adequate facilities and amenities for use by the Labour Hire Personnel at the Customer Site.
  7. The Customer must:
  8. allow or procure the Supplier and the Labour Hire Personnel unimpeded access to the Customer Site for the purposes of performing the Labour Hire Services;
  9. provide clear and timely responses to any queries raised by the Supplier or reasonable requests for information made by the Labour Hire Personnel in relation to the performance of the Labour Hire Services; and
  10. provide all Customer Supplied Items in a timely manner.

6.3 If the Customer believes that the performance, attendance or behaviour of a member of the Labour Hire Personnel (Individual) is falling below an acceptable standard, the Customer must observe the following procedures:

  1. the Customer must notify the Supplier and the Individual of the behaviour;
  2. the Customer may request the Supplier to remove the Individual from the Labour Hire Services;
  3. where the Supplier agrees that the performance, attendance or behaviour of the Individual is unsatisfactory, the Supplier will remove the Individual from the Labour Hire Services; and
  4. if the Supplier removes an Individual on the basis of unsatisfactory performance, attendance or behaviour, the Supplier must use all reasonable endeavours to replace the Individual as soon as reasonably practicable.

6.4 The Customer must not:

    1. vary the scope the Labour Hire Services, including the tasks of the Labour Hire Personnel or the type of equipment used by the Labour Hire Personnel, from that disclosed to the Supplier; or
    2. require the Labour Hire Personnel to attend a site that the Supplier has not previously attended for the purposes of the Contract,

unless the Supplier has:

  1. provided reasonable written notice to the Supplier of its intention to vary the Labour Hire Services; and
  2. disclosed to the Supplier, in relation to the proposed scope of the Labour Hire Services as varied, the matters set out in clauses 6.2(a) and 6.2(b) and, if relevant, allowed the Supplier the opportunity to attend the site.

6.5 If, in the reasonable opinion of the Supplier, the Labour Hire Personnel on the Customer Site do not have the skills, knowledge, experience or training to perform the Labour Hire Services, as varied in accordance with clause 6.5, the Supplier will use reasonable endeavours to supply the Labour Hire Personnel with appropriate skills, knowledge, experience or training as soon as practicable.

6.6 The Customer must compensate the Supplier for any additional costs and expenses incurred in relation to the provision of appropriate Labour Hire Personnel as a result of a variation to the Labour Hire Services by the Customer.

6.7 Nothing done under this clause 6 limits or relieves the Customer of its obligations under any other provision of this Contract.

7. Supply of Goods

7.1 This clause 7 applies if the Supply includes the supply of Goods.

7.2 The Supplier agrees to supply the Goods in accordance with the Contract.

7.3 The Supplier will make all reasonable efforts to have the Goods delivered to the Customer not later than the time set out in the Contract or otherwise quoted by the Supplier in writing. If no time is stated or quoted, the Supplier must use reasonable endeavours to deliver the Goods in a timely manner.

7.4 Unless otherwise stated in writing, times quoted for delivery by the Supplier are given in good faith and are estimates only. The Customer will not be relieved of any obligation to accept or pay for Goods by reason of any delay in delivery.

7.5 Unless the Contract provides otherwise, delivery of the Goods will be on an ex-works basis and the Customer must collect the Goods from the Supplier’s premises.

7.6 The Customer will be responsible at its own cost and risk for unloading the Goods, or for arranging for a suitable means of unloading the Goods, from the relevant delivery vehicle.

7.7 Unless the Contract provides otherwise, risk in the Goods will pass to the Customer on delivery to the Customer or the Customer’s agent.

7.8 Legal and equitable title in the Goods remains with the Supplier until payment in full of the purchase price by the Customer.

7.9 Until property and ownership (including legal and equitable title) of the Goods has passed to the Customer:

  1. the Customer must not supply the Goods to any person outside its ordinary or usual course of business;
  2. the Customer must not allow any person to have or acquire any security interest in the Goods;
  3. the Customer must not create any absolute or defeasible interest in the Goods in relation to any third party except as may be authorised by the Supplier;
  4. the Customer must not remove, deface or obliterate any identifying mark, number or other indicia on any of the Goods;
  5. where the Customer is in actual or constructive possession of the Goods:
    1. the Customer holds the Goods as fiduciary bailee and agent for the Supplier;
    2. after giving reasonable notice, the Supplier will be entitled to enter upon the Customer’s premises at any reasonable time to inspect the Goods;
    3. the Customer will not deliver the Goods, or any document of title to the Goods, to any person except as directed or approved by the Supplier in writing;
    4. the Customer must store the Goods separately and in a manner that enables the Goods to be identified and cross-referenced to particular Invoices issued to the Customer; and
    5. the proceeds of any Goods sold must be kept in a separate account by the Customer and must not be mixed with any other moneys, including funds of the Customer; and
    6. the Customer acknowledges that if it mixes the Goods with other products or items such that the Goods are no longer separately identifiable, then the Customer and the Supplier will be owners in common of the new product;

7.10 Unless the Contract provides otherwise, the Customer is responsible for obtaining and maintaining all Approvals required to own, possess, use or operate the Goods.

8. Customer’s Obligations

8.1 The Customer must:

  1. pay the Charges to the Supplier in accordance with clause 10;
  2. provide the Supplier with any directions, instructions, decisions, authorisations and information reasonably requested by the Supplier in relation to the performance of the Supply or as otherwise required in carrying out its obligations under the Contract, as confirmed in writing as soon as reasonably practicable; and
  3. if the Supply includes the provision of Services:
    1. provide all reasonable support and co-operation reasonably requested by the Supplier in connection with the performance of the Services, including providing the Supplier with any Customer Supplied Items such as access to such office accommodation, services and site facilities as reasonably requested to enable the Supplier to perform its obligations under the Contract; and
    2. provide, or procure for, the Supplier and its Personnel and its equipment sufficient access to the Customer Site to allow the Supplier to perform the Services and undertake its obligations under the Contract in a timely manner.

9. Workplace Health and safety

9.1 Each Party must at all times ensure that all of its Personnel:

  1. comply with its own occupational health and safety obligations under all applicable Laws;
  2. adhere to all accepted safe and environmentally satisfactory working practices;
  3. comply with any applicable incident reporting requirements; and
  4. only use equipment that is in safe working condition.

9.2 When carrying out any obligations under the Contract at any Customer Site, the Supplier must comply, and ensure that each of its Personnel complies, with all applicable laws and standards, directions of the Customer and the Customer’s standards, policies and procedures relating to health, safety and the environment provided to the Supplier in writing.

9.3 Each Party must notify the other Party immediately if the Party becomes aware of any matter which may affect the safety of either Party’s Personnel or of any other person on the Customer Site.

10. Payments to the Supplier

10.1 The Charges charged will be calculated in the manner set out in the Contract or as otherwise agreed in writing by the Supplier and the Customer, subject to any adjustment in accordance with the Contract.

10.2 Unless expressly stated otherwise in the Contract, the Services do not include, and no allowance has been made by the Supplier in the Charges for obtaining Approvals. If the Supplier is required to obtain any Approval and the Contract does not state otherwise, the Supplier is entitled to make a reasonable adjustment to the Charges to recover the additional costs.

11. Invoicing and Payment

11.1 Except as otherwise set out in the Contract, the Supplier will issue Invoices as follows:

  1. for the supply of Services, other than Labour Hire Services, upon Completion of the Services and where the period for the provision of the Services extends beyond the end of a calendar month, following the end of each calendar month;
  2. for the supply of Labour Hire Services, weekly in arrears; and
  3. for the supply of Goods, at the time of delivery.

11.2 Unless the Contract provides otherwise and subject to the remaining provisions in this clause 11, the Customer must pay the Charges set out in an Invoice immediately upon receipt of the Invoice.

11.3 If the Customer holds a current credit account with the Supplier:

  1. the Supplier must pay each Invoice in accordance with the terms of the credit account; and
  2. the Customer must not exceed its approved credit limit from time to time; and
  3. if the Customer is in default under the terms of its credit account or the aggregate of the amount payable under an Invoice and the current balance of the Customer’s credit account exceeds its approved credit limit, the Supplier may require immediate payment of the Invoice or such part of the Invoice to ensure the Customer does not exceed the approved credit limit.

11.4 The Customer must reimburse the Supplier on demand for all costs incurred with the recovery of any unpaid invoiced amounts, including legal and collection agents’ fees, court costs, interest and the Supplier’s fees for time incurred with the recovery process.

11.5 The Customer is not entitled to set off against, or deduct from the Charges, any sums owed or claimed to be owed to the Customer by the Supplier, nor is the Customer entitled to withhold payment of any Invoice because part of that Invoice is in dispute.

11.6 If the Customer does not pay any amount owing to the Supplier by the due date for payment, the Supplier may charge default interest on the unpaid amount at the Interest Rate, calculated on a daily basis from the due date until payment is received in full (after as well as before judgment).

11.7 Without prejudice to any other right or remedy available to the Supplier, the Supplier may exercise any lien available under the law with respect to any property of the Customer in the Supplier’s possession from time to time.

12. GST

12.1 In this clause 12, a word or expression defined in the GST Law has the meaning given to it in that law.

12.2 All amounts payable under a Contract are expressed exclusive of GST.

12.3 If a party makes a supply under or in connection with a Contract in respect of which GST is payable, the consideration for the supply but for the application of this clause 12.3 (GST exclusive consideration) is increased by an amount equal to the GST exclusive consideration multiplied by the rate of GST prevailing at the time the supply is made unless that consideration is stated to already include GST.

12.4 If a party must reimburse or indemnify another party for a loss, cost or expense, the amount to be reimbursed or indemnified is first reduced by any input tax credit the other party is entitled to for the loss, cost or expense, and then increased in accordance with clause 12.3.

12.5 Each party agrees to do all things, including providing tax invoices and other documentation, that may be necessary or desirable to enable or assist the other party to claim any input tax credit, adjustment or refund in relation to any amount of GST paid or payable in respect of any supply made under or in connection with a Contract.

12.6 A party need not make a payment for a taxable supply made under or in connection with a Contract until it receives a tax invoice for the supply to which the payment relates.

13. Materials and Intellectual Property Rights

13.1 The Customer:

  1. grants to, or will procure for, the Supplier a royalty-free, non-exclusive, licence to use the Customer Materials in connection with the performance of the Supply;
  2. warrants that all Customer Materials are accurate and that the Supplier is entitled to use such materials for the purposes of performing the Supply and that such use does not infringe the Intellectual Property Rights of any third party; and
  3. indemnifies the Supplier from and against all claims and losses and damages incurred by the Supplier in relation to any actual or alleged breach of a third party’s Intellectual Property Rights as a result of the Supplier using or relying on any Customer Materials in accordance with the Contract.

13.2 The Supplier:

  1. acknowledges and agrees that the Customer owns all Intellectual Property Rights created or held by the Customer in the Customer Materials; and
  2. must not, without the Customer’s prior written consent, use the Customer Materials for any purpose other than in connection with the performance of the Supply or as otherwise permitted by the Contract.

14. Confidential Information

14.1 The Receiving Party must:

  1. take all reasonable steps to safeguard the confidentiality of the Confidential Information; and
  2. not disclose, make public or use for purposes other than for the purposes of the Contract any Confidential Information of the Disclosing Party without the prior written consent of the Disclosing Party.

14.2 Any obligation of the Receiving Party under this clause 14 will not be taken to have been breached if the Confidential Information was required to be disclosed by law or court order, provided that the Receiving Party, to the extent reasonably practicable, gives the Disclosing Party prompt notice of the existence of such an obligation and makes a reasonable effort to otherwise protect the confidentiality of such information.

15. Warranties

15.1 The Supplier warrants, with respect to any Services, that it:

  1. has the required skills to perform the Services in accordance with the Contract;
  2. will exercise the skill, care and expertise reasonably expected of a professional Supplier experienced in the provision of the same or similar services to the Services; and
  3. will perform the Services in accordance with all applicable laws.

15.2 The Supplier warrants that any Goods supplied under the Contract will, under proper use, comply with the requirements of the Contract in all material respects and be free from defects in material and workmanship for a period of 12 months from the date of delivery (or such other period as stated in the Contract), provided that the Supplier will not be liable under this warranty for any failure of, or damage to, the Goods resulting from fair wear and tear, misuse, accident, failure to maintain or repair, wilful damage, unauthorised modification or neglect.

15.3 The Supplier makes no other warranty to any person (including the Customer) in relation to the Services except those expressly set out in the Contract and those warranties which cannot be specifically excluded under law and the Supplier expressly excludes all other terms, conditions, warranties, undertakings, inducements or representations, whether expressly or implied or implied by statute.

16. Liability and Indemnities

16.1 Nothing in the Contract excludes, restricts or modifies any terms, conditions or warranties or the Supplier’s liability for them which are imposed or implied by any statute, including to the Competition and Consumer Act 2010 (Cth), and which by statute cannot be excluded, restricted or modified. Limitations and exclusions are made only to the extent that the Supplier may legally do so.

16.2 A Party’s liability for loss or damage of any kind, including for loss or damage caused by negligence, is reduced proportionately to the extent that the loss or damage was caused or contributed to by the breach of contract, negligence or wrongful act or omission of the other Party or the other Party’s Personnel.

16.3 Subject to clauses 16.1 and 16.4, to the maximum extent permitted by law, the Supplier’s liability to the Customer for any claim for loss or damages (including legal expenses) made in connection with the Contract whether in contract, tort (including negligence), under statute, in equity or otherwise will be limited as follows:

  1. (a) for any liability for services not meeting the specification or otherwise claimed to be defective or deficient, including for any breach of a warranty in clause 15.1, to the provision of the services again or the payment of the price of having the services provided again, at the Supplier’s election; or
  2. for any liability for Goods not meeting the requirements of the Contract or that are claimed to be defective or deficient including for any breach of a warranty in clause 15.2, to the cost of repair or replacement of those Goods as soon as reasonably practicable, or repayment to the Customer of the price of those Goods, at the Supplier’s election.

16.4 The exclusions and limitations of liability in clauses 16.3, 16.5 and 16.6 do not apply to or limit any of the following obligations or liabilities:

  1. liability arising from or in relation to the death, illness or injury of any person;
  2. liability arising from fraudulent or criminal acts or omissions of a Party or any of its Personnel;
  3. the Customer’s liability to pay the Charges in accordance with the Contract and any Charges which would have been payable but for the Customer’s breach of the Contract or the Supplier’s termination as a result of the Customer’s breach, or any costs and expenses reasonably incurred by the Supplier in recovering or attempting to recover payment of the Charges; or
  4. liability which by law a Party cannot contract out of or limit.

16.5 Subject to clauses 16.1 and 16.4 neither Party will be liable to the other Party for, and each Party waives any right it has to claim, any loss not arising naturally according to the usual course of things, any loss of income, loss of actual or anticipated profit, loss of production, loss of contract, loss of customers, goodwill, opportunity or business, or loss of data arising under or in connection with the Contract, whether in contract, tort (including negligence), under statute, in equity or otherwise.

16.6 Subject to clauses 16.1, 16.3 and 16.4, the aggregate liability of either Party to the other Party, whether for breach of contract, in tort (including negligence) or for any other common law or statutory cause of action for all claims under or in connection with the Contract is limited to the greater of $10,000 and all Charges paid or payable by the Customer under the Contract in the preceding 12 months.

17. Insurance

17.1 The Supplier must effect and maintain (or be insured under) such of the following insurances as are specified in the Order Confirmation or otherwise in the Contract:

  1. public liability insurance, for the duration of the Services, covering the Supplier for its liabilities for third party bodily injury, disease, illness or death, or loss of or damage to tangible property, caused by, arising out of, or in connection with the negligent performance of any obligation or the exercise of any right under the Contract. Unless otherwise stated in the Contract, such insurance must have an indemnity limit of not less than $20 million per event and in the aggregate;
  2. workers’ compensation insurance as required by law; and
  3. motor vehicle liability insurance, for the duration of the Services with a limit of indemnity of not less than $20 million per occurrence, covering the Supplier for its liabilities to third parties for loss of or damage to tangible property arising out of the use of any vehicles that are registered (or are capable of being registered) for road use, in connection with the Services.

17.2 The Supplier must produce evidence, on demand and to the satisfaction of the Customer, that such insurances have been effected and maintained.

18. Variation of the Supply

18.1 The Customer may, by written notice, request the Supplier to do any one or more of the following:

  1. increase, decrease or omit any part of the Supply;
  2. alter the program for the performance of the Supply; or
  3. perform additional work,
    (Variation).

18.2 If the Customer requests a Variation, the Supplier must consider the request in good faith and notify the Customer in writing whether or not the Supplier is willing to perform the Variation, and if so, any cost and time implications of the proposed Variation.

18.3 A Variation will not be binding on the parties unless and until:

  1. the Supplier has accepted the proposed Variation in writing; and
  2. the Supplier and the Customer have agreed in writing any adjustment to the Price or the time form performance, or that no such adjustments are required.

18.4 Unless and until the requirements of clause 18.3 are satisfied, the parties remain bound by the Contract, without the Variation.

19. Supplier’s Personnel

19.1 The Supplier has sole responsibility for paying wages, superannuation, worker’s compensation, taxes, employment benefits and all other costs incidental to the employment of the Supplier’s Personnel.

19.2 The Customer undertakes that during the Term and for the period of 6 months after the expiration or termination of this agreement, it will not solicit or entice away (or seek or attempt to entice away) any person employed by the Supplier, whether for its own benefit or for the benefit of another person.

19.3 Without limiting clause 19.2, the Customer agrees that if it employs any person who was at any time in the three months prior to their employment by the Customer employed by the Supplier and engaged in the performance of the Supply in any capacity, the Supplier may recover from the Customer as a debt due and payable, an amount equivalent to the aggregate base pay paid by the Supplier to that person in their last 3 months of employment by the Supplier.

20. Term and Termination

20.1 The Contract commences on the Commencement Date and, unless otherwise terminated in accordance with the Contract, continues for the Term.

20.2 The Supplier may terminate the Contract by written notice to the Customer if:

  1. the Customer has not complied with the terms of payment pursuant to clause 10;
  2. the Customer is subject to an Insolvency Event; or
  3. the Customer is otherwise in breach of its obligations under the Contract and fails to remedy the breach within 10 Business Days after receipt of written notice from the Supplier requesting the breach be remedied.

20.3 The Customer may terminate the Contract by written notice to the Supplier if:

  1. the Supplier is subject to an Insolvency Event; or
  2. the Supplier is otherwise in breach of its obligations under the Contract and fails to remedy the breach within 10 Business Days after receipt of written notice from the Customer requesting the breach be remedied.

20.4 Clauses 20.2(b) and 20.3(a) do not apply if the Defaulting Party enters into voluntary administration, receivership or is subject to a scheme of arrangement, as contemplated by the Ipso Facto Law Reform. For clarity, this clause 20.4 will only apply while the administration, receivership or scheme of arrangement is ongoing, and will cease in the event that the Defaulting Party is wound up.

20.5 The Customer must pay for all Services performed prior to the termination of the Contract.

21. Force Majeure

Neither party will be liable for failure to perform its obligations under the Contract to the extent and for so long as its performance is prevented or delayed by a Force Majeure Event provided that it gives notice to the other party of the delay and uses reasonable efforts to remedy the cause of the delay as soon as reasonably practicable.

22. Personal Property Securities Act

22.1 In this clause 22, terms defined in the PPSA have the meaning given in the PPSA, unless the context requires otherwise.

22.2 The Customer acknowledges and agrees that, with respect of the Goods identified in the Contract or otherwise supplied to the Customer, the Contract constitutes a security agreement and that the Supplier may register a financing statement in respect of the security interest provided by the Contract.

22.3 The Customer grants to the Supplier a security interest in the Goods supplied to the Customer by the Supplier to secure payment of the Amount Payable. The security interest:

  1. extends to and continues in all proceeds; and
  2. is a purchase money security interest to the extent to which it secures payment of the unpaid Price.

22.4 The Customer must:

  1. promptly do anything required by the Supplier to ensure the Supplier’s security interest is a perfected security interest and has priority over all other security interests in the Goods;
  2. not do or permit anything to be done that may result in the purchase money security interest granted to the Supplier ranking in priority behind any other security interest;
  3. not cause or knowingly permit any person to take a security interest over, or to register a financing statement in relation to, the Goods without the prior written consent of the Supplier; and
  4. immediately notify the Supplier if it becomes aware of any person taking steps to register a financing statement in relation to the Goods.

22.5 The Customer:

  1. waives the right under the PPSA to receive a copy of the verification statement verifying registration of a financing statement or a financing charge statement relating to a security interest created under the Contract;
  2. waives any right it may have under section 115 of PPSA upon enforcement;
  3. to the fullest extent permitted by the PPSA, contracts out of its rights to receive any other notice or statement under any other provision of the PPSA;
  4. agrees to pay all costs incurred by the Supplier in registering and maintaining a financing statement (including registering a financing change statement) on the PPSR or enforcing or attempting to enforce the security interest created by the Contract including executing subordination agreements; and
  5. is responsible for the full costs incurred by the Supplier (including actual legal fees and disbursements on a solicitor and client basis) in obtaining an order pursuant to section 182 of the PPSA.

22.6 If the Customer defaults in the performance of any obligation to the Supplier under the Contract or any other agreement for the Supplier to provide Goods to the Customer, the Supplier may enforce its security interest in any Goods by exercising all or any of its rights under the Contract or the PPSA.

22.7 To the extent (if at all) that the Supply gives rise to a security interest in favour of the Customer, the Customer agrees that it must not register any such security interest against the Supplier on the PPSR.

23. Disputes

23.1 Nothing in this clause 23 prevents the Supplier or the Customer seeking urgent injunctive or other interim relief from a court, or from continuing existing court proceedings.

23.2 It is a condition precedent to the commencement of any proceedings in any court in any jurisdiction (other than for urgent interlocutory relief) that the parties first follow the procedure in this clause 23.

23.3 A party claiming that a dispute has arisen out of or in connection with the Contract (Dispute) must provide the other party with written notice of the nature of the Dispute and the relevant facts.

23.4 In the first instance, the Dispute will be referred to the representatives of each party. A meeting of the representatives must be convened and held by the Supplier and the Customer as soon as reasonably practicable to attempt to resolve the Dispute.

23.5 If a Dispute is not resolved within twenty (20) Business Days after the issue of a notice under clause 23.3, either party may commence court proceedings for the resolution of the Dispute.

23.6 Each party must bear its own costs of complying with this clause 23.

24. Notices

24.1 A notice, demand, consent, approval or communication under this agreement (Notice) must be:

  1. in writing, in English and signed by a person duly authorised by the sender; and
  2. marked for the attention of the person, and hand delivered or sent by prepaid post or email to the recipient’s address specified in the Parties section of this agreement, as varied by any Notice given by the recipient to the sender.

24.2 Communications by email need not be marked for the attention in the way required by clause 24.1 (b). However, the email must state the first and last name of the sender. Communications sent by email are taken to be signed by the named sender.

24.3 A Notice given in accordance with clause 24.1 takes effect when taken to be received (or at a later time specified in it), and is taken to be received:

  1. if hand delivered, on delivery;
  2. if sent by prepaid post, six (6) Business Days after the date of posting (or ten (10) Business Days after the date of posting if posted to or from a place outside the country of delivery); or
  3. if sent by email, at the time the email was sent unless the sender receives an automated message that the email has not been delivered,but if receipt is not on a Business Day or is after 5.00pm on a Business Day (in the time zone of the addressee), the Notice is taken to be received at 9.00am on the next Business Day.

25. Subcontracting and Assignment

25.1 The Supplier reserves the right to subcontract any part of the Services without the Customer’s consent, provided that the Supplier will remain responsible for the performance of the Services.

25.2 Neither Party may assign its rights or novate its rights or obligations under the Contract (in whole or in part) to any person without the consent of the other Party, which consent must not be unreasonably withheld.

26. Severance

If any provision or part of any provision of the Contract is invalid, illegal or unenforceable, such provision or part thereof will be severed from the Contract and the remainder will continue in full force and effect.

27. Waiver

Waiver of any power or right under this agreement must be in writing signed by the party entitled to the benefit of that power or right and is effective only to the extent set out in that written waiver.

28. Relationship

The Supplier is an independent contractor. Nothing in this agreement gives rise to a relationship of employment, agency, partnership or joint venture between the parties.

29. Governing Law and Jurisdiction

29.1 The Contract will be governed by and construed in accordance with the laws in force in New South Wales.

29.2 Each party submits to the non-exclusive jurisdiction of the courts of New South Wales.

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