Terms and conditions

1. Term

This Agreement will commence on the date of acceptance of the Order by the Supplier and continue until the Products are delivered and the Price has been paid, unless otherwise terminated in accordance with its terms.

2. Orders

(a) The Customer may order a Product by completing an order request and emailing it to the Supplier (Order).

(b) The Supplier will issue a quotation. If the quotation is accepted, the Supplier issues these trading terms including the Scope of Work.

(i) executing this Agreement (following receipt of an Order); and

(ii) issuing an invoice for the Order.

(d) An Order may not be cancelled by the Customer once it is accepted by the Supplier.

3. Price and payment

(a) The Customer must pay the invoice in accordance with the Payment Terms.

(b) If the Customer fails to make payment in accordance with clause 3(a), the Supplier may:

(i) suspend or cancel the delivery of, or work on the Products accepted but not completed, until all outstanding amounts (including Interest) due to the Supplier are paid in full;

(ii) charge Interest on outstanding amounts; and/or

(iii) terminate the Agreement.

(c) The Customer will pay the Supplier all costs incurred in recovering any outstanding amounts (including Interest) due to the Supplier under this Agreement, including legal costs or other expenses incurred by the Supplier in relation to enforcement steps.

(d) The Supplier may charge a reasonable additional fee if any of the following applies:

(i) the Supplier is required to carry out additional work on the Products which differ from that specified in the Schedule.

(ii) there is a change in the Specification of the Products which does not result from a breach of this document by the Supplier.

(iii) failure to meet a deadline caused by Customer.

(e) If this Agreement is terminated or the Product is no longer required by the Customer, the Supplier may charge the Customer a reasonable amount in respect of work it has done but not charged for.

(f) If the Supplier is required to provide advice and / or observe installation of the Products on-site, in addition to the Price, the Customer will pay the Supplier’s fee at an hourly rate of (POA) plus the Supplier’s reasonable transport and accommodation costs (if required).

4. GST

(a) A reference in this clause to a term defined or used in A New Tax System (Goods and Services Tax) Act 1999 (Cth) is a reference to that term as defined or used.

(b) All amounts in the Agreement are exclusive of GST, unless otherwise specified.

(c) If GST is imposed on a supply made under, or in connection with, the Agreement, the recipient of the supply must pay the supplier an amount equal to the GST payable on the supply in addition to, and at the same time as, any consideration for the supply.

5. Changes to Products

(a) The Customer may request modifications, variation or changes (Changes) to the Products which differ from the Specification.

(b) If the Customer wishes to proceed with the Change, the Supplier has no obligation to do so unless:

(i) the Customer provides the Supplier with an updated specification incorporating the Changes; and

(ii) the parties agree in writing on the Changes and any other relevant terms of this Agreement to take account of the Change (including updates to the delivery timeframe and additional fees arising as a result of variations to the specification before, during or after the fabrication process).

6. Rented Equipment

(a) The Supplier will provide the Rented Equipment for the Customer if specified in the SOW.

(b) The Customer warrants that the surface, structure and materials upon which the Rented Equipment will be built, attached, affixed or placed at the Location will:

(i) support the Rented Equipment in its current form; and

(ii) not be disturbed or affected (whether structurally or otherwise) by installation or use of the Rented Equipment.

(c) The Customer will not make any changes to the Rented Equipment (or any other Deliverables), unless it receives the Supplier’s prior approval before any such changes are made.

(d) At the end of the hire period, the Customer must return the Rented Equipment to the Supplier (or make it available for collection by the Supplier) in the same safe, functional and operational condition as it was when it was delivered (fair wear and tear excepted).

(e) Should any damage or accident occur to the Rented Equipment at the Location, then the Customer must immediately notify the Supplier.

(f) The Customer is responsible for the Rented Equipment at the Location, including its correct earthing and at all other times until it is received by the Supplier pursuant to clause 6(d).

(g) The Customer indemnifies the Supplier:

(i) for any loss or damage to the Rented Equipment, or otherwise arising out of, the use of the Rented Equipment;

(ii) against any claims by third parties arising out of damage to the surface upon which the Rented Equipment will be built, attached, affixed or placed at the Location, including damage to hard top layers, paving and facilities present on the surface;

(iii) in relation to any third party claims in the event that the Customer, its Personnel or anyone else alters the Rented Equipment, Deliverables or structures after the Services are completed by the Supplier; and

(iv) for any costs incurred by Supplier if it is required to repair and/or replace the Rented Equipment arising out of the Customer’s breach of this MSA or a SOW.

7. Risk

(a) Risk of damage to, or loss of, the Products passes to the Customer on delivery, or when the Customer collects the goods from the Supplier’s premises (as the case may be).

(b) If the Products are damaged, stolen or destroyed following delivery but prior to title passing to the Customer:

(i) the Customer will be responsible for all costs and losses arising from such damage, theft or destruction; and

(ii) the Supplier is entitled to receive all insurance proceeds resulting from a claim associated with such damage, theft or destruction. The production of this Agreement by the Supplier is sufficient evidence of its rights to receive the insurance proceeds.

(c) If the Customer requests the Supplier to leave goods outside the Supplier’s premises for collection or to deliver the Products to an unattended location, then such Products will be left at the Customer’s sole risk.

8. Title in the Products

Title in the Products passes to the Customer on the later of delivery to the Customer or payment of the Price in full.

9. Intellectual Property Rights

9.1 Supplier IP

(a) All Intellectual Property Rights in the Services and any other processes or methods created, supplied or used by the Supplier, from time to time, belong to the Supplier (Supplier IP).

(b) Using the Services and the Deliverables does not give the Customer (or anyone else) ownership of, or any right, title or interest in, any of the foregoing (or any Supplier IP contained therein), or any know-how, methods, processes and techniques, information, content or technology that may be provided to, or accessed by, the Customer in connection with their use, all of which is, and will remain, owned by the Supplier or its licensors.

9.2 Publicity and promotion

(a) The Supplier may photograph, video or record, by any means, the Products during construction and following completion of the Products, for use by the Supplier for publicity, promotion and exhibition purposes on the Supplier’s website, social media accounts and any other channels.

(b) The Customer grants the Supplier a perpetual, non-revocable, non-exclusive license use the Products (including the Intellectual Property Rights in them) for publicity, promotion and exhibition purposes and as otherwise contemplated in clause 9.2(a).

10. Liability

(a) The Customer is liable for all losses incurred by the Supplier in connection with recovering amounts owing to the Supplier by the Customer.

(b) The Supplier’s maximum aggregate liability for any Loss or Claim incurred or suffered by the Customer under this Agreement, however arising is limited to the Price paid for the Products which are the subject of the relevant Loss or Claim.

(c) Notwithstanding anything else, the Supplier is not liable to the Customer for any Consequential Loss arising in connection with this Agreement, however arising and even if the Supplier was advised of its possibility.

(d) To the extent permitted by Applicable Laws, the Supplier excludes all warranties, guarantees and undertakings not specified in this Agreement.

11. Indemnity

(a) The Customer indemnifies and holds harmless the Supplier and its Personnel (together, Indemnified Parties) against all Claims and Losses that the Indemnified Parties sustain or incur as a result of or in connection with:

(i) a breach of this Agreement by the Customer; and

(ii) any act or omission of the Customer.

(b) The Supplier will not be liable for any interruptions or delays in providing the Products resulting from an act or omission of the Customer or its Personnel, including a failure to fulfil its obligations. The Supplier may invoice the Customer for costs incurred as a result of such interruptions or delays.

12. Confidential Information

(a) Each party (Recipient) must keep the Confidential Information of the other party (Discloser) confidential, and not disclose it except:

(i) to its Personnel for the purpose of performing its obligations under this Agreement;

(ii) as required by Applicable Law or a Government Agency;

(iii) as permitted or required by the Discloser; or

(iv) to its professional advisers engaged to provide legal, taxation or accounting advice, and to the extent necessary.

(b) The Recipient must comply with any direction of the Discloser to return or destroy or permanently delete all copies of the Confidential Information, to the extent reasonably practicable at the Discloser’s expense.

13. Termination

(a) A party may terminate this Agreement promptly by providing the other party with notice if:

(i) the other party breaches a material term of this Agreement and the breach is incapable of remedy;

(ii) the other party breaches a material term of this Agreement and, if capable of remedy, fails to rectify the breach within 30 days after receiving notice to do so; or

(iii) an Insolvency Event occurs in relation to the other party.

(b) The Supplier may terminate this Agreement for any reason by providing 7 days’ notice to the Customer.

14. Consequences of Termination

On termination of this Agreement:

(a) all amounts owing to the Supplier by the Customer become due and payable to the Supplier (including for all work completed at the date of termination);

(b) the Supplier may:

(i) cancel any orders placed by the Customer before termination; and/or

(ii) require the Customer to return all saleable Products for a refund of the Price paid for them.

15. Force Majeure Event

(a) If a Force Majeure Event prevents a party from performing any of its obligations:

(i) as soon as reasonably practicable, that party must give the other party notice of the Force Majeure Event; and

(ii) that party is excused from performing its obligations which it is prevented from performing, for the duration of the Force Majeure Event, subject to it notifying the other party.

(b) A Force Majeure Event does not excuse a party from any obligation to pay money.

16. Dispute Resolution

(a) In the event of any dispute arises, and prior to the commencement of any formal proceeding, the parties shall continue performance as set forth in this Agreement and shall attempt in good faith to reach a negotiated resolution, within 20 days, by designating an appropriately authorised representative from each party to resolve the dispute.

(b) The parties may also agree to employ mediation to resolve the dispute prior to initiating formal proceedings.

17. Notices and electronic communications

17.1 Notices

A notice, consent, agreement, approval, confirmation, waiver, direction or similar given or required under this Agreement:

(a) must be in writing, in English and signed by, or sent by email from, a person authorised by the sender;

(b) must be delivered to the recipient in person or by email or registered post to the email or address in the Parties section of this Agreement.

17.2 Electronic communication

The parties consent to giving and receiving notices electronically.

18. General

18.1 Costs

Each party must pay its own costs for the negotiation, preparation, execution and performance of this Agreement.

18.2 Entire agreement

(a) This Agreement constitutes the entire agreement between the parties in relation to, and supersedes any prior conduct, arrangement, agreement or understanding of, its subject matter.

(b) The Agreement overrides any terms and conditions that the Customer includes, links or attaches to a purchaser order or other document.

18.3 Relationship of parties

(a) Unless otherwise provided in this Agreement, no party is authorised to bind another party.

(b) Nothing in this Agreement creates an employment, agency, trust, partnership, fiduciary or joint venture relationship between any of the parties.

18.4 Severability

If any part of this Agreement is or becomes invalid or unenforceable under any Applicable Law, it is severed in the relevant jurisdiction but only to the extent it is invalid or unenforceable.

18.5 Assignment

The Customer may not assign, novate, transfer or otherwise deal with any right or obligation under this Agreement without the prior consent of the Supplier. The Supplier may assign, novate, transfer or otherwise deal with any right or obligation under this Agreement without the prior consent of the Customer.

18.6 Variations

This Agreement may only be amended or replaced by a written Agreement, signed by all parties.

18.7 Waivers

A waiver of a right, power or remedy must be signed by the party giving it and cannot be implied by conduct, delay or failure to act.

18.8 Counterparts and execution

(a) This Agreement, and any subsequent variation, may be signed in counterparts.

(b) All documents, or counterparts, may be signed electronically via DocuSign or similar platform.

18.9 Governing law and jurisdiction

The Agreement shall by governed by and construed in accordance with the laws of New South Wales and the parties irrevocably submit to the exclusive jurisdiction of the Australian Courts.

16.10 Electronic Signature

The parties acknowledge and agree that is Agreement may be executed by use of an Electronic Signature, and if a party executes this Agreement using an Electronic Signature, then:

(a) the party is taken to have entered into this agreement in electronic form;

(b) The Electronic Signature is deemed to be an original execution of the Agreement by the party for the purposes of this Agreement; and

(c) The party must provide to the other party such evidence of the Electronic Signature as the other party, within reason, may require.

19. Definitions and interpretation

19.1 Definitions

Capitalised terms in this Agreement are defined in the Scope of Work or below.

Agreement means this document.

Applicable Law means any law, regulation, mandatory guideline or standard, ordinance, court ruling or requirement or direction of a Government Agency, or similar, in any jurisdiction in which any part of this Agreement is performed, or governing the Products or a party, at any time.

Business Day means a day that is not a Saturday, Sunday or public holiday in New South Wales, Australia.

Claim means any claim, demand, remedy, suit, action, proceeding, right of action, however arising.

Completion means the date when the Supplier confirms the Product is ready for collection or delivery, or such Product is otherwise made available by the Supplier for collection or delivery (as the case may be).

Confidential Information means all confidential, non-public or proprietary information exchanged between the parties relating to the business, technology or other affairs of each party or which comes into a party’s possession pursuant to, or as a result of, negotiations or discussions in connection with this Agreement, however disclosed, other than information that it is public or information previously disclosed to the receiving party on a non-confidential basis.

Consequential Loss means loss of profits, loss of revenue, loss of any contract value, loss of anticipated profit or damages for lost opportunity, loss or corruption of data, or cost of finance, but, in each case, except where the loss, damage or cost arises naturally (that is, in the usual course of things) from the relevant act or omission.

Electronic Signature means an electronic method of signing that identifies the person and indicated their intention to sign the Agreement which may include, but it is not limited to, software programs such as DocuSign or Conga.

Force Majeure Event means an event or circumstance beyond a party’s reasonable control, including natural disaster, acts of war, riots, failure or shortage of power supplies or other essential utility, pandemic, epidemic, quarantine, serious viral outbreak or other widespread or serious threat to human health (including an outbreak or recurrence), strike, government imposed shutdown or closure, a change in applicable law, computer virus, unauthorised intervention, fraud or technical failures.

Government Agency means any governmental, judicial or statutory body with authority or jurisdiction over this Agreement or a party, and any relevant Stock Exchange.

Insolvency Event means in relation to a party, any of the following events or circumstances:

(a) it is declared bankrupt;

(b) a step taken to enter into an arrangement between the party and its creditors;

(c) a step taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person of the whole or part of that party's assets, operations or business;

(d) the party cannot pay its debts as they become due; or

(e) it ceases to carry on business or indicates it is likely to cease carrying on a business or a material part of its business,

in each case, unless the event or circumstance occurs as part of a solvent reconstruction, amalgamation, scheme, compromise, arrangement, merger or consolidation.

Intellectual Property Rights means all the trade marks design patents, software programs, copyright material, trade secrets, know-how, confidential information and included without limitation all other kinds of ‘intellectual property’ belonging to a party, whether registered or unregistered.

Interest means 2% per annum more than the pre-judgment interest rate set by the local court from time to time.

Loss means any liability, loss, injury, illness, damage, cost or expense (including legal costs on a full indemnity basis), including Consequential Loss.

Order has the meaning in clause 2(a).

Personnel means, in relation to a party, officers, directors, employees, contractors and agents of the party.

Products means the items to be created by the Supplier for Customer as described in the Scope of Work of this Agreement.

Rented Equipment means the equipment referred to in the Scope of Work.

19.2 Interpretation

In the interpretation of this Agreement, unless stated otherwise:

(a) a reference to AUD, $A, dollar or $ is to Australian currency;

(b) a reference to time is a reference to time in Sydney, New South Wales;

(c) if an obligation must be performed or an event must occur on a day that is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day;

(d) singular includes the plural and vice versa;

(e) a provision of this Agreement must not be construed against a party on the basis that party was responsible for preparing it; and

(f) headings are for ease of reference only and do not affect interpretation.