1. Definitions and Interpretation

1.1 Definitions

a. if a party is a company, the party:

i. becomes insolvent within the meaning of the Corporations Act 2001 (Cth); or

ii. is placed, voluntarily or otherwise in liquidation, has a receiver or manager appointed to its assets or is subject to a deed of company arrangement;

b. if a party is an individual, the party:

i. commits an act of bankruptcy; or

ii. becomes bankrupt within the meaning of the Bankruptcy Act1966 (Cth); or

c. if a party acts as trustee of a trust, the trust is wound up.

1.2 Interpretation

a. headings are for convenience only and do not affect interpretation;

b. a reference to a party includes that person’s personal representatives and permitted assigns, or being a corporation its successors and permitted assigns and any other person deriving title under that person or corporation;

c. a reference to the singular includes the plural and vice versa;

d. a reference to a gender includes all gender;

e. a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa;

f. a reference to a thing (including a right) includes a part of that thing;

g. where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning;

h. mentioning any thing after the words include, includes or including does not limit the meaning of any thing mentioned before those words;

i. no rule of construction applies to the disadvantage of a party merely because that party was responsible for the preparation of these Terms or any part of it;

j. a reference to parties means the Service Provider and the Customer, and reference to party means any one of them;

k. a reference to any legislation or legislative provision includes subordinate legislation, regulation or statutory instrument, made under it and any amendment to or replacement for any of them;

l. a reference to a clause, schedule or annexure is to a clause, schedule or annexure of or to these Terms; and

m. a reference to “dollars” or “$” is to Australian lawful currency.

2. Services

2.1 Provision of Services

a. The Service Provider will provide the Services to the Customer for the Term, in consideration for the Customer paying the Fees to the Service Provider, subject to the provisions of these Terms.

b. The parties acknowledge and agree that this is not an exclusive agreement in respect of either party and the Service Provider may provide services of a similar nature to any other person and the Customer may obtain services of a similar nature from any other person. 

c. The Customer will be deemed to have accepted and agreed to be bound by these Terms on the earlier of the date on which the Customer: 

i. notifies the Service Provider in writing that it agrees to them; or

ii. requests the supply of any Goods or Services from the Service Provider after receipt of these Terms. 

d. Any Quotation provided by the Service Provider for the proposed supply of Goods or Services is: 

i. an invitation to treat only; and 

ii. only valid if in writing. 

e. Any terms in the Quotation form part of these Terms, and if inconsistent with these Terms, the terms of the Quotation will prevail. 

2.2 Service Provider’s obligations

The Service Provider must provide the Services:

a. with the due care and skill, and to a standard reasonably to be expected of a person both competent and experienced in providing services similar to the Services;

b. in accordance with all laws; and

c. in accordance with the Quotation.  

3. Fees

3.1 Payment of Fees

a. In consideration of the provision of the Services in accordance with these Terms, the Customer will pay the Service Provider the Fees.

b. Unless otherwise specified in these Terms, the Customer is not entitled to claim back from the Service Provider any part of the Fees. 

c. The Customer acknowledges that the Fees are exclusive of any GST that may be charged by the Service Provider to the Customer, and therefore, the Service Provider will be entitled to add on GST.

3.2 Invoicing

a. The Service Provider will provide the Customer with a tax invoice in accordance with the GST Law in relation to Fees payable pursuant to these Terms.

b. Unless otherwise specified in the Quotation, payment must be made by the Customer to the Service Provider within 30 days after receiving the Service Provider's tax invoice.

c. The Service Provider may require progress payments to be made (including an initial deposit of no more than 50% of the Fees before the provision of Services commence), in which case the amounts payable for each progress payment and the timeframe for payment will be set out in the Quotation.  

d. If the Customer considers that an invoice is not correctly rendered, it will immediately notify the Service Provider of that fact with supporting reasons and identifying the amount in dispute. The parties will then enter into good faith negotiations to resolve the matter within ten (10) business days. In the event that the parties are unable to resolve the dispute in accordance with this clause, the parties will enter into dispute resolution, as set out in clause 16. 

3.3 Failure to pay

a. charge interest on the outstanding amount at the rate of 10% per year, accruing daily;

b. require the Customer to pay, in advance, for any Services (or any part of the Services) which have not yet been performed; and

c. not perform any further Services (or any part of the Services).

3.4 Enforcement costs

4. Customer’s Obligations

a. co-operate with the Service Provider as the Service Provider reasonably requires;

b. provide the information and documentation that the Service Provider reasonably requires to carry out the Services.

5. Confidentiality

a. Each party must keep the other party’s Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

b. The Confidential Information does not include information which:

i. is generally available in the public domain otherwise than as a result of a breach of these Terms; or 

ii. was known by the recipient party prior to the disclosing of the information to the it.

c. Despite this clause, a party may make such disclosures in relation to these Terms as is reasonably necessary:

i. to its professional advisers, bankers, financial advisers and financiers upon those persons undertaking to keep confidential any information so disclosed; or

ii. to comply with any applicable law or the requirement of any regulatory body (including any relevant stock exchange).

d. The obligations under this clause survive termination or expiry of these Terms.

6. Warranties, Liability and Indemnity 

6.1 Warranties 

a. The Service Provider and the Customer each represent and warrant to the other that:

i. it has the power and authority to enter into these Terms and to perform its obligations under these Terms, and the entering into these Terms has been properly authorised; and

ii. these Terms constitute a legal, valid and binding obligation on it, enforceable in accordance with its terms by appropriate legal remedy. 

b. The Service Provider represents and warrants that:

i. it is qualified and has the necessary experience and resources to perform the Services competently and professionally; and

ii. the Services will be performed with due care and skill, in a professional, efficient and safe manner. 

c. The Customer represents and warrants that all information given to the Service Provider under these Terms will be correct, complete and not misleading. 

d. The Customer acknowledges that, to the maximum extent permitted by law, except for such warranties on the part of the Service Provider as are expressly set out in these Terms or implied by law, there are no other terms, warranties, undertaking or understanding whatsoever binding upon the Service Provider or between the Service Provider and the Customer. 

6.2 Goods and Services Warranty

a. The warranty period in respect of Services performed by the Service Provider is 12 months from the date of performance of such Services. For the avoidance of doubt, this warranty does not extend to Goods covered under a manufacturer's warranty. 

b. The Customer must, at its cost, give the Service Provider written notice of any such circumstance without delay and no later than five Business Days of becoming aware of the circumstance which is likely to invoke reliance on the Service Provider’s warranties under this clause.

c. After receiving notice under clause 6.2b and subject to the Service Provider being afforded a reasonable opportunity to inspect the Equipment and/or Site at which the Services were performed within a reasonable time, the Service Provider will at its sole discretion without undue delay re-perform any of the Services which were defective or repair or replace any defective Equipment and/or Goods provided always that performance of any of these options will constitute an entire discharge of the Service Provider’s liability under that warranty. 

d. The Service Provider’s warranty does not cover defects arising from:

i. reasons not due to the Service Provider;

ii. the Customer’s failure to follow the Service Provider’s oral or written instructions as to storage, installation, commissioning, use or maintenance of the Equipment and/or Goods;

iii. maintenance services carried out by the Customer or a third party (other than the Service Provider);

iv. operation of the Equipment in contravention of instructions; and/or

v. any defect which arises as a result of the Customer’s wilful damage or negligence. 

e. The Service Provider assigns to the Customer any original manufacturer warranties covering any Goods and the Service Provider agrees to reasonably cooperate with the Customer in asserting any such warranty claims against any such manufacturer.

6.3 Liability

a. To the maximum extent permitted by law, the Service Providers liability for breach of any implied or imposed guarantee, warranty or condition which cannot be excluded is restricted, at the Service Provider’s option, to:

i. in the case of Goods supplied by the Service Provider, either to the:

A. replacement of the Goods or the supply of equivalent goods; 

B. repair of the Goods;

C. payment of the cost of having the Goods replaced; or 

D. payment of the cost of having the Goods repaired; 

ii. in the case of Services supplied by the Service Provider, either to the:

A. re-supply of those Services; or

B. payment of the cost of having those services re-supplied. 

b. Neither party is liable for any Consequential Loss suffered in connection with these Terms, whether arising under contract, tort (including negligence), statute, equity or otherwise. 

a. Nothing in these Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the provision of Services which cannot be excluded, restricted or modified. If the Customer is a consumer as defined in the Australian Consumer Law, nothing in these Terms restricts, limits or modifies the Customer’s rights or remedies against the Service Provider for failure of a statutory guarantee under the Australian Consumer Law.

b. Notwithstanding anything else in these Terms, to the maximum extent permitted by law and except in the case of death or personal injury caused by the Service Provider's negligence, the liability of the Service Provider under or in connection with these Terms whether arising in contract, tort, negligence, breach of statutory duty or otherwise must not exceed the Fees paid by the Customer to the Service Provider under these Terms in the immediately preceding 12 months before the event giving rise to the liability and if the period is less than 12 months between the date these Terms are entered into and the event or series of events giving rise to the liability, 100% of the average of the aggregate monthly Fees paid or payable under these Terms multiplied by 12.

6.4 Indemnity 

a. The Customer indemnifies the Service Provider from and against all Loss which the Service Provider pays, suffers, incurs or is liable for, arising out of or in connection with the death or personal injury of any person, loss of or damage to any property, or any act or omission of fraud, dishonesty, negligence, unlawful conduct, reckless or wilful misconduct or misrepresentation by the Customer or any of its employees, officers or agents. The indemnity under this clause will be reduced proportionately to the extent that the Service Provider caused or contributed to any Loss. 

b. The Service Provider indemnifies the Customer from and against all Loss which the Customer pays, suffers, incurs or is liable for, arising out of or in connection with the death or personal injury of any person, loss of or damage to any property, or any act or omission of fraud, dishonesty, negligence, unlawful conduct, reckless or wilful misconduct or misrepresentation by the Service Provider or any of its employees, officers or agents. The indemnity under this clause will be reduced proportionately to the extent that the Customer caused or contributed to any Loss. 

6.5 No reliance

6.6 Survival of obligations

7. Termination

a. These Terms may be terminated at any time by agreement in writing between the parties.

b. A party (Non-Defaulting Party) may terminate these Terms immediately by notice in writing to the other party if any one of the following events occurs:

i. the other party commits a serious breach of these Terms and that breach is incapable of remedy; 

ii. the other party commits a breach of these Terms that is capable of remedy and fails to remedy the breach within 10 Business Days of receiving a written notice of that breach from the Non-Defaulting Party; 

iii. to the extent permitted by law, if an Insolvency Event occurs in relation to the to the other party;

c. Upon termination:

i. any Fees, expenses or reimbursements payable by the Customer to the Service Provider in respect of any period prior to termination must be paid by the Customer within 14 days after termination; and

ii. the Service Provider must pay back to Customer any payments made in advance within 14 days after termination. 

d. Termination for any reason does not extinguish or otherwise affect any rights of either party against the other which accrued prior to the time of the termination, or otherwise relate to or arise from any breach or non-observance of obligations under these Terms which arose prior to the time of termination, or the provisions of these Terms which by their nature survive termination.

8. Insurance

a. The Service Provider must effect and maintain for the Term:

i. public liability insurance for an amount not less than $10 million in the aggregate;

ii. workers' compensation insurance in accordance with applicable workplace laws,

b. In respect of such insurance, the Service Provider must:

i. use a reputable insurance company that is authorised to conduct insurance business in Australia under the Insurance Act 1973 (Cth);

ii. not knowingly do or permit to be done anything which may render the insurance liable to cancellation or otherwise reduce or prejudice the amount to be paid under the insurance policy;

iii. notify the Customer, as soon as practicable, of any event that may give rise to a claim.

9. Access to Site

a. The Customer will grant the Service Provider such access to the Site or such parts of the Site as is necessary for the Service Provider to carry out the Services.

b. While the Service Provider is on Site, the Service Provider must (and must ensure its employees and contractors):

i. perform the Services in accordance with any site safety instructions, as notified by the Customer to the Service Provider from time to time;

ii. minimise any disruption to, and take all reasonable steps to protect the safety of, the Customer and its personnel.

c. Where the Service Provider is performing Services on Site, the Customer must at its own cost provide the Service Provider with:

i. a safe workplace for the Service Provider to carry out the Services, including by complying with all obligations imposed on the Customer by law (including any relevant occupational health and safety laws) in respect of the Site;

ii. safe access to the Equipment;

iii. the equipment, lifts, installations, appliances, scaffolding and any other items reasonably required by the Service Provider necessary for accessing the Equipment;

iv. the required materials for handling and lifting the Equipment;

v. electricity, water and compressed air required to carry out the Services;

vi. waste management; and

vii. facilities for the maintenance of personnel such as washrooms, dressing rooms and such other facilities or supplies for the Service Provider’s personnel required by any applicable law and as the Service Provider may reasonably require. 

d. The Service Provider acknowledges that other employees and agents of the Customer may also be operating on the Site and in this case, the Service Provider agrees that it will comply with all requests of the Customer to ensure that any interference with such operations are avoided or minimised.

e. Each party is responsible for providing personal safety and protective equipment to its own personnel.

f. The Service Provider may provide the Customer with safety instructions for the Customer’s acceptance (which must not be unreasonably withheld).

g. The Customer must keep the Service Provider and its personnel informed about Site instructions and the risk associated with the Site, Equipment and any other risks associated with carrying out the Services, which the Service Provider should be aware of.

h. The Service Provider may refuse to carry out any part of the Services if the performance of Services could affect the safety of personnel, the Customer has not provided the requisite safety instructions or information and/or the Customer has not approved the Service Provider’s safety instructions or does not comply with them.

i. The parties agree:

i. to advise the other party as soon as reasonably practicable as to any increased risk to occupational health and safety that may be identified by either party in the operation or their performance of their obligations under these Terms;

ii. to consult on any issue that arises during the operation of these Terms concerning the safety of the Service Provider’s personnel, any other persons, the Equipment or the Site;

iii. that should any legislation, regulation or other instrument that relates to occupational health and safety result in increased costs to the Service Provider performing its obligations under these Terms, the Service Provider will be entitled to adjust the Fee applicable at that time to align with the increased costs.

10. Variations to Services and/or Fees

a. If either party wishes to change the scope of the Services or the Fees, (as the case may be), it shall submit a request in writing to the other party (Variation Request) detailing the requested change to the other party in writing.

b. If the either party submits a Variation Request to the other, then within a reasonable time (being note more than 10 Business Days), the party receiving the Variation Request shall respond providing a written estimate to the other party of the following:

i. the likely time required to implement the Variation Request;

ii. any changes to the Fees arising from the Variation Request;

iii. the likely effect of the Variation Request on the timeframe for completing the Services; and

iv. any other impact of the Variation Request on the Terms as related to the Variation Request.

c. If the Customer wishes the Service Provider to proceed with the Variation Request, the Service Provider has no obligation to do so unless and until the Variation Request is agreed in writing. The Service Provider may not proceed with a Variation Request which the Service Provider submits to the Customer, unless and until the Variation Request is agreed in writing.

11. Privacy 

a. to comply with the Privacy Act 1988 (Cth) and other legislation regarding privacy in force from time to time that is applicable to the Customer or the Service Provider;

b. to use the Personal Information only for the purposes of these Terms; and 

c. not to disclose the Personal Information without the written authority of the Customer except for the purposes of fulfilling its obligations under these Terms or as required by law.

12. Non-Solicitation

a. The Customer agrees that for the Term and for a period of one year following the termination or expiration of these Terms the Customer will not directly or indirectly solicit, engage or procure the engagement of the services of any employee of the Service Provider associated in any way with the provision of the Services.

b. This clause survives the End Date. 

13. Retention of Title

a. title to and property in all Goods supplied to the Customer remain vested in the Service Provider and do not pass to the Customer;

b. the Customer must hold the Goods as fiduciary and bailee and agent for the Service Provider; 

c. the Customer must hold the proceeds of any sale of Goods on trust for the Service Provider in a separate account with a bank to whom the Customer has not given security however failure to do so will not affect the Customer’s obligation as trustee; and 

d. in addition to its rights under the PPSA, the Service Provider may without notice, enter any premises where it suspects the Goods are and remove them, not withstanding that they may have been attached to other goods not the property of the Service Provider and for this purpose the Customer irrevocably licences the Service Provider to enter such premises and also indemnifies the Service Provider from and against all costs, claims, demands or actions by any party arising from such action (except in the case of the Service Provider’s unlawful act or omission or negligence). 

14. PPSA

a. The PPSA applies to these Terms and to the extent that the Customer grants a security interest to the Service Provider pursuant to these Terms, then these terms are a security agreement. 

b. For the purposes of the PPSA:

i. terms used in this clause that are defined in the PPSA have the same meaning as in the PPSA;

ii. these Terms are a security agreement between the Service Provider and the Customer.

c. The Customer must do whatever is necessary in order to give a valid security interest over any Goods and their proceeds which is able to be registered by the Service Provider on the Personal Property Securities Register (PPSR).

d. Where permitted by the PPSA, the Customer waives any rights to receive notifications, verifications or other documentation specified in under sections 95, 118, 121(4), 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.

e. The Service Provider and the Customer agree to contract out of and nothing in sections 95, 125, 129, 142 and 142 of the PPSA shall apply to these Terms.

f. The Customer must immediately on the Service Provider’s request:

i. do all things and execute all documents necessary to give effect to the security interest created under these Terms; and

ii. procure from any person considered by the Service Provider to be relevant to its security position such agreements and waivers as the Service Provider may at any time require. 

g. The Service Provider may allocate any amounts received from the Customer in relation to any outstanding account in its sole discretion. 

15. Title and Risk

16. Reporting

a. If required by the Customer as part of the Services or if determined by the Service Provider as necessary, the Service Provider will prepare and deliver such reports relating to the Services as required.

b. The Service Provider reserves absolute discretion regarding the format and technology through which the reports are provided. 

c. The Customer acknowledges that the conditions can and will change following operation of the Equipment; after which the Service Provider will not be liable for the accuracy or completeness of the information contained in a report.

d. The decision concerning whether or not to repair or replace Equipment lies with the Customer.

e. By preparing any report with recommendations to repair or replace Equipment, the Service Provider recommends that the Customer authorise the repair or replacement of the Equipment prior to operating the Equipment.

17. Dispute Resolution

a. A party claiming that a dispute has arisen in relation to these Terms (Dispute) must give the other party notice of the details of the Dispute (Dispute Notice).

b. When a Dispute Notice is given:

i. each party’s representative must first attempt to resolve the Dispute;

ii. if the Dispute is unresolved after 10 Business Days, either party may refer the Dispute to mediation. The mediator will be chosen by the parties or, if the parties cannot agree to the appointment of a mediator, the mediation will be administered by the Australian Disputes Centre (ADC) and conducted in accordance with the ADC Guidelines for Commercial Mediation in force at the date of the Dispute.

c. Each party must continue to perform its obligations pending resolution of the Dispute.

d. This clause does not apply where either party commences legal proceedings for urgent interlocutory relief. 

18. Notices

18.1 Method of Giving Notices

a. personally delivered to that party;

b. sent by pre paid post, addressed to the other party; or

c. transmitted by email, to the other party's email address.

18.2 Address of Participants

18.3 Time of Service

a. on the day of delivery; 

b. if sent by Australia Post between addresses within Australia, after the day on which it is posted:

i. by "Priority" post - four Business Days;

ii. by "Express Post" - two Business Days; 

iii. by "Regular" post, the greatest number of Business Days which Australia Post's website estimates is applicable to mail sent on the day it is posted and between those locations; and

c. on the day of transmission where the person giving the notice has received no indication in any form within one hour of attempted transmission that the email has not been received, or, where transmission is later than 4.00pm on a Business Day, on the next Business Day, where the person giving the notice has received no indication in any form by 9.00am on the next Business Day that the email has not been received. 

19. Miscellaneous

19.1 Force majeure

a. Where Force Majeure prevents or delays either party from performing any obligation under these Terms, that obligation is suspended as long as the Force Majeure subsists.

b. A party affected by Force Majeure must notify the other party as soon as reasonably practicable of the Force Majeure including its expected duration and consequences and will use all reasonable endeavours to minimise the consequences of the Force Majeure and to resume performance of the affected obligations. 

19.2 No partnership or employment relationship

a. Nothing in these Terms constitute the relationship of employer and employee between the Customer and the Service Provider. 

b. These Terms will not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in these Terms.

c. Neither party will have, nor represents that it has, any authority to make any commitments on the other party's behalf.

19.3 Governing Law

19.4 Variation

19.5 Liability

19.6 Assignment

19.7 Severance

19.8 Waiver

19.9 Entire agreement

19.10 Further Agreements

19.11 Subcontracting 

The Service Provider remains responsible for the performance of the Services despite that the Service Provider has subcontracted the performance of any part of the Services, and must ensure that all subcontractors have and retain the insurances required under clause 8. 

19.12 Asbestos free environment