Terms & Conditions

Operative provisions

1. Definitions and interpretation Definitions

1.1 The following definitions apply in this agreement unless the context requires otherwise:

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Perth,

Western Australia are open for business.

Change of Control means, in respect of a particular entity, a person who Controls that entity

ceasing to do so or another person acquiring Control of it.

Charges means Fees and Expenses.

Claim means any actual, contingent, present or future claim, complaint, demand, proceeding, suit,

litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable

compensation, account, or any other remedy of whatever nature and however arising, whether in

contract, tort (including but not limited to negligence), under statute or otherwise.

Client means the party that will receive the Services as named in the Quote.

Confidential Information means all information relating to a party, any customer, clients,

suppliers, distributors or joint venture partners, of the party and/or any of the business or

financial affairs of any of them, including:

(a) any information that is specifically designated by any of them as confidential;

(b) any information which, by its nature, may reasonably be regarded as confidential;

(i) agreements, arrangements or terms of trade with any existing or prospective customers,

clients, suppliers, distributors or joint venture partners or other contractual counterparties;

(ii) customers, clients, suppliers, distributors, joint venture partners, employees,

technologies, products, services, proposals, market opportunities, business or product development

plans, pricing, financial position or performance, capabilities, capacities, operations or

processes; or

(iii) intellectual property rights, of any of them; and

(d) any note, calculation, conclusion, summary or other material derived or produced partly or

wholly from any such information;

(e) negotiations in relation to, and the terms of, this agreement,

whether that information is visual, oral, documentary, electronic, machine-readable tangible,

intangible or any other form, relating to a party including but not limited to any specifications,

formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any

information relating to any business, products, markets, operations, processes, techniques,

technology, forecasts, strategies or any other matter.

Control has the meaning given in Section 50AA of the Corporations Act.

Corporations Act means the Corporations Act 2001 (Cth).

Completion Date means, in respect of a Quote, the dates (if any) specified in the Quote as the

dates on or before which the Supplier must complete each Engagement or Phase of the Engagement in

accordance with clause 5.6.

Default Rate means a rate of interest of 10.00% per annum.

Engagement has the meaning given in clause 2.1, being each individual engagement for the Supplier

to provide specific Services to the Client pursuant to a Quote.

Event of Default means any of the following on the part of a party:

(a) committing any material or persistent breach of this agreement;

(b) repudiating or, in the reasonable opinion of the Supplier, evincing an intention to

repudiate, this agreement;

of the Supplier;

(d) misleading the Supplier in any material way; and/or

(e) an Insolvency Event occurring in respect of the Client that has not been resolved within 21

days.

Expenses mean the expenses of the Supplier for which the Supplier is entitled to be reimbursed by

the Client pursuant to clause 8.6.

Facilities includes toilets, portable lunch rooms and crib rooms, printers, working space, computer

equipment, access to the internet and the Client’s computer network, telecommunications system and

similar. It includes access to such resources but also use of them to the extent required by the

Supplier in order to perform the Services.

Fees has the meaning given in clause 8.1.

Fixed Price means, in respect of a particular Engagement, if, as specified in the relevant Quote:

(a) the Services are not divided into Phases, the price (exclusive of GST) specified in the

relevant Quote for all of the Services; or

(b) the Services are divided into Phases, the price (exclusive of GST) specified in the relevant

Quote for each Phase respectively.

Force Majeure means any act, event or cause (other than lack of funds) which is beyond the

reasonable control of the affected party, including:

(a) an act of God, war, sabotage, terrorism, riot, civil disorder, revolution, national or state

emergency, martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other

adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether

or not involving employees of the affected party), epidemic or quarantine; and

(b) an action or inaction of any Governmental Agency (including any Court of competent

jurisdiction), such as expropriation, restraint, prohibition, intervention, requisition,

requirement, direction or embargo by legislation, decree or other legally enforceable order.

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal

or judicial body, department, commission, authority, tribunal, agency or entity whether foreign,

federal, state, territorial or local.

GST has the same meaning given to that expression in the GST Law.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to

time.

GST Law has the same meaning given to that expression in the GST Act.

Hourly Rate means the hourly rate set out in the relevant Quote, if applicable.

Insolvency Event means, in respect of a party any of the following events or any analogous event:

(a) where the party is an individual, that party commits an act of bankruptcy or is declared

bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any

law relating to bankruptcy or insolvency;

(b) where the party is a company, a resolution is passed or court order made for the winding up

of that party or an administrator is appointed to that party pursuant to any relevant law;

the party or any part thereof; or

(d) the party is otherwise unable to pay its debts as and when they fall due.

In-Scope Work means work that has been expressly and specifically designated as being within the

scope of the Services.

Input Tax Credit has the meaning given in the GST Law.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in

value, deficiency or other liability, whether arising in contract, negligence, tort, equity,

statute or otherwise; and that a party pays, suffers or incurs or is liable for, including all:

(a) liabilities on account of federal or state tax;

(b) interest and other amounts payable to third parties;

incurred in connection with investigating, defending or settling any Claim; and

(d) all amounts paid in settlement of any Claim.

Non-Solicitation Period means 6 months, 12 months, 18 months.

Notice means any notice or other communication by one party to the other party under the terms of

this agreement including but not limited to any request, demand, consent, waiver or approval.

Out-of-Scope Rate has the meaning given in clause 8.2.

Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically

described as being out of scope in the Quote (if any).

Phase means any particular phase of the Services as specified in the Quote.

Quote means, in respect of a particular Engagement, the document headed "Quote" or similar setting

out the scope of the Services for that Engagement as provided by the Supplier to the Client and

accepted by the parties in accordance with this agreement.

Related Entity has the meaning set out in the Corporations Act 2001 (Cth).

Representatives means, in respect of a person, the employees, officers, consultants, agents and

professional advisers of that person.

RFQ means a request for quote made by the Client to the Supplier pursuant to clause 4.1 and 4.2.

Services means the services provided by the Supplier to the Client under this agreement in respect

of each Engagement, as set out in the relevant Quote.

Supplier means Lake Rigging WA Pty Ltd trading as LR WA (ABN 41 674 303 096).

Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997

(Cth).

2. Incorporation of Terms

2.1 These terms and conditions are incorporated into each and every contract of service (each an

Engagement) entered into between the Supplier and the Client.

2.2 The Client’s submission of a purchase order or making a booking for work after the Client’s

receipt of a Quote shall constitute acceptance of the terms of this agreement.

2.3 The Supplier may replace these terms at any time with new terms. The new terms shall prevail

over the old terms from the date of the replacement.

2.4 If there is any inconsistency between these terms and the Quote, the Quote shall prevail.

3. Nature of relationship between Supplier and the Client

3.1 The Supplier is an independent contractor of the Client and nothing in this agreement

constitutes a relationship of employer and employee, principal and agent, partnership or joint

venture between the parties. The Supplier does not have, and will not hold themselves out as

having, any authority to bind the Client in any matter including but not limited to any contracts,

commitments, expenses, liabilities or obligations of any nature.

4. Formation of contract RFQ

4.1 The Client may from time to time request the Supplier to provide a quote for a certain scope

works by submitting an RFQ.

4.2 An RFQ must contain:

(a) the Client’s name, ABN, address;

(b) details of the Services required;

(d) site plans;

(e) work schedule involving other trades;

(f) expected commencement and completion dates of work; and

(g) data, plans, instructions, documents, descriptions, reports, advice, accounts, drawings,

photographs or any other material relevant to the work.

Quote

4.3 Upon receiving an RFQ, the Supplier may provide the Client with a Quote.

4.4 Without limiting the operation of law, the Quote incorporating these terms is deemed to be

accepted on the earliest of:

(a) written communication by the Client of acceptance of the Quote and its terms;

(b) issuance of a purchase order by the Client for the Services;

and the Supplier accepts the acknowledgment of purchase order.

5. The Services

5.1 In consideration for the Client agreeing to pay the Fees to the Supplier, the Supplier will

provide the Services to the Client subject to the terms of this agreement.

Standards and duties

5.2 The Supplier warrants that, in providing the Services, it will use its best endeavours to:

(a) (Honesty and diligence) act honestly and diligently and provide the Services to the best of

its knowledge and abilities;

(b) (Standards) at all times maintain reasonable ethical, professional and technical standards;

otherwise physically or verbally abuse any person.

5.3 The Supplier is permitted to use other persons to provide some or all of the Services.

5.4 The Supplier is responsible for the work of any of the Supplier's subcontractors.

5.5 Any work undertaken by any of the Supplier's subcontractors will be undertaken to the same

standard as stated in this agreement and the specification.

Completion Dates

5.6 The Supplier must use their best endeavours to complete each Engagement, or as the case may

be, each Phase of the Engagement, to the reasonable satisfaction of the Client, acting reasonably,

on or before the relevant Completion Date (if any) but the Supplier provides no warranty that any

result or objective can or will be achieved or attained by the Completion Date or any other date.

5.7 The Services will be performed by the employees or agents that the Supplier may choose as

most appropriate to carry out the Services.

Delays: Client to pay Supplier’s costs and Supplier not to pay Client’s costs

5.8 If for reasons not attributable to the Supplier:

(a) the Supplier is not able to commence work on a scheduled commencement date;

(b) the Supplier is not able to undertake work on site; or

the relevant Completion Date as a result of supply chain shortages,

the relevant Completion Date for an engagement, or a Phase in an Engagement will be deferred to a

date that the Supplier may reasonably determine, and:

(d) the Supplier is not liable to compensate the Client for any delay; and

(e) the Client agrees to pay the Supplier any costs it incurs due to, attributable to, or arising

from the delay, including (but not limited to) any expenses and fees payable by the Supplier to

third parties.

5.9 The Client acknowledges and agrees that:

(a) its limitations and obligations arising under clause 5.8 (including clause 5.8(d) and clause

5.8(e)) are fair and reasonable, and are reasonably necessary to protect the Supplier's legitimate

interests, as delays (including delays of up to one day) can lead to substantial loss to the

Supplier due to the nature of the industry in which the

Supplier’s business operates whereby the Supplier is obligated to continue paying

third party hire and service costs during any period of delay;

(b) its inability to be compensated by the Supplier for its losses under clause 5.8(d) may result

in significant loss to the Client;

paying a significant amount or amounts to the Supplier;

(d) the Client has carefully considered, understood and been given the opportunity to obtain

independent advice in respect of the full extent of the operation of clause 5.8; and

(e) the Client has knowingly, freely and willingly accepted its obligations under clause

5.8 including accepting all risks and losses that arise to the Client by the operation of clauses

5.8(d) and 5.8(e).

6. Supplier’s Obligation Insurance

6.1 The Supplier must take out all insurance required by law including:

(a) worker's compensation insurance as prescribed by law for the Supplier’s personnel;

and

(b) public liability insurance for a minimum of an amount to be agreed for each occurrence.

Compliance with all laws

6.2 The Supplier must comply at the Supplier’s own cost and expense with all acts, ordinances,

rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth,

State and Local Government departments, bodies, and public authorities or other authority. This

requirement applies to the Supplier or to the Services. The Supplier must

indemnify the Client from and against all actions, costs, charges, claims and demands in respect

thereof.

7. Client’s obligations

7.1 To facilitate the Supplier’s performance of the Services, the Client will:

(a) co-operate with the Supplier as the Supplier reasonably requires;

(b) provide the information and documentation that the Supplier reasonably requires;

(d) comply with all laws relating to work health and safety;

(e) ensure that the project site and access ways are safe, ready and available for Supplier to

provide the Service without restriction or interruption; and

(f) ensure that the Client’s staff and agents cooperate with and assist the Supplier.

7.2 The Client will not charge for the Supplier's use of the Facilities made available by the

Client.

7.3 If the Client does not comply with clause 7.1, without limiting the Supplier’s rights in

connection with any breach, the Client agrees to pay any additional costs and expenses which are

reasonably incurred by the Supplier.

8. Fees Payment of fees

8.1 In respect of each Engagement, the parties have agreed that the total price for the relevant

Services (exclusive of GST and Expenses, and including a Deposit where relevant) (the Fees) will

be, if as designated in the relevant Quote:

(a) (Not Phases) the Services are not divided into Phases and:

(i) (Fixed Price) a Fixed Price applies – that Fixed Price payable in arrears upon completion of

the Services to the reasonable satisfaction of the Client; or

(ii) (Hourly Rate) the Hourly Rate applies – calculated on the basis of the time spent by the

Supplier in exclusively providing those Services on an hourly rate basis at the Hourly Rate in

accordance with clause 8.3 and payable in arrears upon completion of the Services to the reasonable

satisfaction of the Client,

and the Supplier will invoice the Client by way of a single invoice for all relevant Charges

following completion of all relevant work to the reasonable satisfaction of the Client;

(iii) (Other costs) The Supplier acknowledges the Fees and any Expenses are inclusive of and

allow for all costs and expenses incurred by the Supplier, and any items supplied by the Supplier,

in providing the Services and complying with the Supplier 's obligations under this agreement and

the Supplier will not be entitled to payment of any amount in addition to the Fees and any

Expenses; or

(b) (Phases) the Services are divided into Phases and:

(i) (Fixed Price per Phase) Fixed Prices apply – the Fixed Price for each Phase payable in

arrears at the end of each Phase respectively; or

(ii) (Hourly Rate) the Hourly Rate applies – calculated on the basis of the time spent by the

Supplier in exclusively providing those Services on an hourly rate basis at the Hourly Rate in

accordance with clause 8.3 and payable in arrears at the end of each Phase respectively,

and the Supplier will invoice the Client for all relevant Charges for each Phase following

completion of each Phase respectively to the reasonable satisfaction of the Client; or

term is used in the construction industry) and:

(i) (Project Costs) all the project costs that the Supplier incurs in supplying the Services

(including materials, labour, subcontractors, and equipment); and

(ii) (Profit Margin) the predetermined profit margin as described in the Quote including any

incentive or award fees (if applicable);

and the Supplier will invoice the Client by way of a single invoice for all relevant Charges

following completion of all relevant work to the reasonable satisfaction of the Client.

Out-of-Scope Work

8.2 Notwithstanding clause 8.1, the Client will pay the Supplier the following hourly rates (the

Out-of-Scope Rate) for any Out-of-Scope Work:

Personnel role Rigger Welder/Boilermaker Crane Operator Supervisor

Labourer/Machine operator Admin

Rate (ex GST)

$110

$120

$115

$125

$85

$75

Hourly Rates and Out-of-Scope Rates

8.3 Hourly Rates and Out-of-Scope Rates shall be proportionately charged for work involving

periods of less than one hour and structured in 15 minute segments,– eg, the time charged for an

attendance between 15 and 30 minutes will be the rate of 0.5 hour.

8.4 The Supplier must keep and maintain accurate records of the number of hours of Services in

respect of which the Hourly Rate and/or Out-of-Scope Rate applies and provide the Client with a

copy of such records upon reasonable notice as may be requested by the Client from time to time.

8.5 The Supplier may change the Hourly Rates and Out-of-Scope Rates by giving thirty (30) days’

written notice to the Client of the date from which the new Hourly Rate and Out-of-Scope Rate are

to apply.

Reimbursement of Expenses

8.6 The Client will pay all reasonable expenses properly and necessarily incurred by the Supplier

in the course of providing the Services, provided that:

(a) the Supplier:

(i) obtains the Client’s written consent before incurring the expenses;

(ii) provides the Client with acceptable documentation for the expenses incurred; and

(iii) complies with any applicable expenses policy of the Client in force from time to time,

provided that a copy of the policy has been provided to the Supplier by the Client prior to the

relevant expense being incurred.

9. Payment Timing of payments

9.1 The Client must pay to the Supplier all Charges properly invoiced pursuant to clause 8.1 in

full on or before the date that is 28 days after the Client’s receipt of the relevant invoice, or

another date approved by the Supplier in writing.

Method of payment

9.2 All amounts to be paid by a party to another party under or in connection with this agreement

must be paid in cash or by way of bank cheque or electronic funds transfer into the account

nominated by the other party.

No set-off or deduction

9.3 Unless otherwise agreed in writing and subject to clause 9.4, all amounts payable under or in

connection with this agreement must be paid without set-off, counterclaim, withholding, deduction

or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding,

deduction or lien arises under this agreement.

9.4 If a party is required by law to make a deduction or withholding in respect of any sum

payable under or in connection with this agreement to another party, it must, at the same time as

the sum that is the subject of the deduction or withholding is payable, make a payment to the other

party of such additional amount as is required to ensure that the net amount received by the other

party will equal the full amount that would have been received by it had no such deduction or

withholding been required to be made.

Default interest

9.5 If a party fails to pay any sum payable by it under this agreement at the time and otherwise

in the manner provided in this agreement, it must pay interest on that sum from the due date of

payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a

365-day year and compounded monthly. Interest will accrue from day to day and will be payable on

demand. The payment of interest by a party to another party in respect of any late

payment under this clause 9.5 is in addition to any other remedies that the other party may have in

respect of such late payment.

Suspension of services

9.6 If the Client fails to pay any sum payable by it under this agreement at the time and

otherwise in the manner provided in this agreement, the Supplier may at its absolute discretion

immediately suspend its services to the Client until the Client has made payment of the

amount owing in full. The Supplier’s right to suspend services under this clause 9.6 is in addition

to any other remedies that the Supplier may have in respect of the Client’s failure to make such

payment.

10. Security for Payment Definition

10.1 In this clause:

(a) PPSA means the Personal Property Securities Act 2009 (Cth).

(b) PPSA Security Interest has the same meaning given to the term “security interest” in

the PPSA.

and present and after-acquired PPSA retention of title property including present and after

acquired proceeds from the sale of any such property.

(d) Other Property means all property of the Grantor that is not PPSA Personal Property (whether

present or acquired after the execution of this deed).

Grant of security

10.2 The Client grants to the Supplier:

(a) a PPSA Security Interest over all PPSA Personal Property; and

(b) a fixed charge over all Other Property,

to secure the complete and punctual payment of all monies under this Agreement.

10.3 If the Client is a trustee of a trust, the Client grants the security interests in its

personal capacity and in its capacity as trustee of the trust.

Attachment

10.4 The Client acknowledges and confirms that the Supplier have given value for the security

interests including by the Supplier’s promise to provide and make available credit to the Client

for the supply of Services.

After-acquired property

10.5 The Client acknowledges that, for the purposes of section 20(2)(b)(ii) of the PPSA, the PPSA

Security Interest over all PPSA Personal Property is taken in all of the Client’s present and

after-acquired property.

Where notice or time period is not required

10.6 Unless required by an applicable law that cannot be excluded:

(a) the Supplier may exercise any right under this clause without first giving any notice to the

Client or allowing the lapse of any period of time; and

(b) the parties expressly agree to dispense with any requirement under any law that notice be

given or that the lapse of any period of time be allowed before any rights are exercised.

Where notice or time period is required

10.7 If any applicable law that cannot be excluded requires a notice to be given or a lapse of

time to occur before any right can be exercised, then:

(a) when a period of notice or lapse of time must be given and that period cannot be varied, that

period of notice must be given or that lapse of time must occur or be permitted by the Supplier;

PPSA notices

10.8 Without limiting clause 10.6, the Supplier is not obliged to give any notice under the PPSA

(including notice of a verification statement) unless the notice is required by the PPSA and cannot

be excluded. The Client consents to the waiver of the requirement for notice under this clause 10.8

and waives any rights it has to receive a notice under sections 95, 118, 121(4), 130 and 157 of the

PPSA.

Contracting out of PPSA provisions

10.9 To the extent that Chapter 4 of the PPSA would otherwise apply to enforcement by the Supplier

of any security interest, the parties agree that:

(a) to the extent permitted by section 115(1) of the PPSA, the Supplier need not comply with

sections 125, 132(3)(d), 132(4);

(b) sections 142 and 143 of the PPSA are excluded; and

sections 132 and 137.

10.10 The Client consents to the waiver of the requirement for notice under any other provision of

the PPSA that the Supplier may notify to the Client after the date of this deed and waives any

rights it has to receive that notice.

11. GST

Definitions regarding GST

11.1 In this clause 11:

(a) expressions that are not defined, but which have a defined meaning in the GST Law, have the

same meaning as in the GST Law;

(b) any part of a supply that is treated as a separate supply for GST purposes (including

attributing GST payable to tax periods) will be treated as a separate supply for the purposes of

this clause 11; and

calculating the GST payable in relation to a supply for the purpose of this clause 11.

Consideration is exclusive of GST

11.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a

sum payable, under this agreement has been determined without regard to GST and must be increased

on account of any GST payable under this clause 11.

Receiving Party to pay additional amount

11.3 If GST is imposed on any supply made under or in accordance with this agreement, the

recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional

amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax

invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply

at or before the time of payment. Payment of the additional amount will be made at the same time

and in the same manner as payment for the supply is required to be made in accordance with this

agreement.

Fines, penalties and interest

11.4 The amount recoverable on account of GST under this clause 11 by the Providing Party will

include any fines, penalties, interest and other charges incurred as a consequence of any late

payment or other default by the Receiving Party under this clause 11.

Reimbursement

11.5 If any party is required to pay, reimburse or indemnify another party for the whole or any

part of any cost, expense, loss, liability or other amount that the other party has incurred or

will incur in connection with this agreement, the amount must be reduced by the amount for which

the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.

Adjustment events

11.6 If, at any time, an adjustment event arises in respect of any supply made by a party under

this agreement, a corresponding adjustment must be made between the parties in respect of any

amount paid to the Providing Party by the Receiving Party pursuant to clause 11.3 and payments to

give effect to the adjustment must be made and the Providing Party must issue an adjustment note.

12. Confidentiality

12.1 Subject to clauses 12.2 and 12.3, a person who has received Confidential Information from

another party must:

(a) keep all Confidential Information confidential;

(b) not use or exploit any Confidential Information in any way except in the proper performance

of the Services in accordance with this agreement;

party;

(d) not copy, reduce to writing or otherwise record any Confidential Information except in the

proper performance of the Services in accordance with this agreement (and any such copies,

reductions to writing and records will be the property of the discloser).

Exceptions

12.2 A party may disclose Confidential Information to those of its Representatives who have an

actual need to know the Confidential Information but only in the proper provision of the

Services and performance of its duties under this agreement and provided that it informs such

Representatives of the confidential nature of the Confidential Information before such disclosure.

12.3 The obligations in clause 12.1 will not apply to any Confidential Information which:

(a) was already known to the person on a non-confidential basis prior to the time of its first

disclosure, unless it came to be so known as a direct or indirect result of having been:

(i) unlawfully obtained, whether from a third party or otherwise; or

(ii) received from a third party that owed a confidentiality obligation to the owner of the

Confidential Information at the time of such receipt, in circumstances in which the person knew, or

ought reasonably to have known after due enquiry, that the third party owed that confidentiality

obligation;

(b) is or becomes generally available to the public, unless it became so generally available as a

direct or indirect result of a breach of this agreement; or

promptly notify owner of the Confidential Information in writing in advance of any such disclosure,

if reasonably practicable; or

(d) is authorised for release or use by the written pre-approval of the owner of the Confidential

Information but only to the extent of such written pre-approval.

13. Liability, Indemnity and Remedies

Client’s breach

13.1 The Client irrevocably indemnifies and covenants to hold the Supplier harmless from and

against all Losses suffered by the Supplier (including third party claims on the Supplier) which

arise in connection with any breach of this agreement by the Client and/or any negligent or other

tortious conduct of the Client.

Supplier’s breach

13.2 In respect of Claim for Losses arising from factors attributable to the action or omission of

the Supplier and its Representative, the Supplier’s Liability is limited, at the Supplier’s

election, to one or a combination of the following remedies:

(a) re-supply of the Services;

(b) payment of the costs of re-supply of the Services by a third party; or

this agreement in respect of the Services.

No indirect losses

13.3 Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory

duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or

suffered by that other Party of an indirect or consequential nature including any economic loss or

other loss of turnover, profits, business or goodwill. The provisions of this clause do not apply

to clauses 13.1 and 13.2.

Force majeure

13.4 In the event of Force Majeure, to the maximum extent permitted by law, the Supplier and its

Representatives are not liable for any damage and/or delay in the performance of any obligation of

the Supplier under this agreement where such damage or delay is caused by circumstances beyond the

reasonable control of the Supplier. The Client acknowledges and agrees that the Supplier holds the

benefit of this clause 13.4 for itself and as agent and trustee for and on behalf of each of its

Representatives.

14. Termination Termination for breach

14.1 Each party may terminate this agreement immediately by notice to the other party if an Event

of Default occurs in respect of the other party.

14.2 If a party commits any material or persistent breach of this agreement (the Defaulting

Party), the other party may (but is not obliged to) provide the Defaulting Party with a notice of

breach in writing. If the Defaulting Party fails to remedy the breach within 15 Business Days, or

such other period as agreed, after the date of its receipt of such notice, the other party may

terminate this agreement with immediate effect upon providing the Defaulting Party with a further

notice of termination in writing.

Effect of termination

14.3 In the event of any termination of this agreement in any circumstances and for any reason

whatsoever:

(a) the Client will remain liable to pay all Charges accrued up to and including the date of

termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt,

in the event of any termination of this agreement by the Client, including Charges incurred by the

Supplier for the purchase of materials for those Services prior to such termination); and

(b) the Supplier will send to the Client a final invoice for the balance of any unbilled Charges

accrued up to and including the date of termination and clause 9 will apply in respect thereof.

During notice period

14.4 In the event that the Supplier’s engagement under this agreement is terminated upon notice by

either party the Client may, at its absolute discretion, require the Supplier to refrain from

providing the Services during the relevant notice period.

Partially completed deliverables

14.5 Upon the cessation of the Supplier’s engagement under this agreement, subject to payment of

all outstanding Charges by the Client in accordance with the terms of this agreement, the Supplier

will deliver to the Client any and all partially completed deliverables that are included within

the scope of the Services.

Legislation

14.6 If any provision of this agreement is otherwise unenforceable by virtue of the operation of

the

Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the

occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other

provision of this agreement, to the maximum extent permitted by law:

(a) time is of the essence in respect of all obligations of that party under this agreement

(whether falling due for performance before, upon or after the occurrence of that Insolvency

Event); and

(b) any breach of this agreement by that party (whether occurring before, upon or after the

occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with

the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,

and, if any such material breach has occurred or occurs, the parties acknowledge and agree that

such provision will instead be enforceable by virtue of the occurrence of that material breach.

Accrued rights

14.7 Termination of this agreement will not affect any rights or liabilities that the parties have

accrued under it prior to such termination.

Survival

14.8 The obligations of the parties under clause 12 (Confidentiality), clause 13 (Liability,

indemnity and remedies), clause 15 (Non-solicitation) and this clause 14 will survive the

termination of this agreement.

15. Non-solicitation

15.1 During the Supplier's engagement with the Client under this agreement and for each Non-

Solicitation Period thereafter, the Client must not, without the Supplier's prior written consent

(which the Supplier may withhold or delay in its absolute discretion), directly or indirectly:

(a) (non-solicitation suppliers) interfere with or disrupt, or attempt to interfere with or

disrupt, any relationship, whether contractual or otherwise, between the Supplier and any of the

Supplier's suppliers, distributors or joint venture partners, or identified prospective suppliers,

distributors or joint venture partners; or

(b) (non-solicitation of staff) induce, encourage or solicit any of the Supplier's officers,

employees, contractors or agents to cease their employment, engagement or agency with the Supplier.

15.2 The Client acknowledges and agrees that:

(a) the restraints in clause 15.1 constitute several separate covenants and restraints consisting

of each of clauses 15.1(a) and 15.1(b) combined with each separate Non- Solicitation Period

severally;

(b) each of those separate covenants and restraints is a fair and reasonable restraint of trade

that goes no further than is reasonably necessary to protect the Supplier's goodwill and business;

covenants and restraints, including its receipt of the Services; and

(d) breach by the Client of any of those separate covenants and restraints would be unfair and

calculated to damage the Supplier's goodwill and business and would lead to substantial loss to the

Supplier.

15.3 The parties intend the covenants and restraints under clauses 15.1 to operate to the maximum

extent. If any of those separate covenants and restraints would, in the absence of this clause

15.3, be void as unreasonable for the protection of the interests of the Supplier but would not be

so void if any part of the wording in this clause 15 was deleted or amended, the separate covenants

and restraints will apply with the minimum modifications necessary to make them effective.

16. Notices

16.1 A Notice given to a party under this agreement must be in writing and sent to the address or

email address of the relevant party as the relevant party may notify to the other party from time

to time in respect of the particular Engagement.

16.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery;

(b) if delivered by commercial courier, at the time of signature of the courier’s receipt;

(d) if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server),

unless the sender receives a notice from the party’s email server or internet service provider that

the message has not been delivered to the party,

except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a

Business Day), the notice will be deemed to have been received at the next commencement of business

hours in the place of deemed receipt.

16.3 To prove service, it is sufficient to prove that:

(a) in the case of post – that the envelope containing the notice was properly addressed and

posted; and

(b) in the case of email – the email was transmitted to the party’s email server or internet

service provider.

17. General Further assurances

17.1 Each party must (at its own expense, unless otherwise provided in this agreement) promptly

execute and deliver all such documents, and do all such things, as any other party may from time to

time reasonably require for the purpose of giving full effect to the provisions of this agreement.

Costs

17.2 All costs and expenses in connection with the negotiation, preparation and execution of this

agreement, and any other agreements or documents entered into or signed pursuant to this agreement,

will be borne by the party that incurred the costs.

Entire agreement

17.3 This agreement contains the entire understanding between the parties in relation to its

subject matter and supersedes any previous arrangement, understanding or agreement relating to its

subject matter. There are no express or implied conditions, warranties, promises,

representations, obligations or other terms, written or oral, in relation to this agreement other

than those expressly stated in it or necessarily implied by statute.

Severability

17.4 If a provision or the application of a provision of this agreement is invalid, prohibited,

void, illegal or unenforceable in a jurisdiction:

(a) it is to be read down or severed or be ineffective in that jurisdiction to the extent of the

prohibition, invalidity voidness, illegality or unenforceability; and

(b) this will not affect the validity or enforceability of that provision in another

jurisdiction, or the remaining provisions.

No waiver

17.5 Any waiver of a right under this agreement must be in writing and signed by the party

granting the waiver.

17.6 No failure, delay, relaxation, forbearance or indulgence by a party in exercising any power

or right conferred upon it under this agreement will operate as a waiver of that power or right in

any subsequent matter or prejudice or restrict the rights of the party. No single or partial

exercise of any power or right precludes any other or future exercise of it, or the exercise of any

other power or right under this agreement.

Assignment

17.7 A party must not assign or otherwise transfer, create any charge, trust or other interest in,

or otherwise deal in any other way with, any of its rights under this agreement without the prior

written consent of the other party.

Governing law and jurisdiction

17.8 This agreement and any disputes or claims arising out of or in connection with its subject

matter or formation (including non-contractual disputes or claims) are governed by, and shall be

construed in accordance with, the laws of Western Australia, Australia.

17.9 The parties irrevocably agree that the courts of Western Australia, Australia have exclusive

jurisdiction to settle any dispute or claim that arises out of, or in connection with, this

agreement or its subject matter or formation (including non-contractual disputes or claims).

* * * *

Terms & Conditions

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