Terms & Conditions
Terms & Conditions
Updated on 1 July 2025
1. Definitions and interpretation
1.1 Definitions
In the Contract:
Business Day means a day on which banks are open for business in Perth, Western Australia, excluding weekends and 27 to 31 December (inclusive).
Claim means any claim, demand or cause of action whether arising in contract, tort, under statute or otherwise in relation to the Contract or any Services.
Client means the entity described as the Client in the Primary Services Supply Form.
Client IP means the Intellectual Property Rights of the Client which:
a) are in existence at the date of the Contract; or
b) come into existence after the date of the Contract otherwise than in connection with the Contract, excluding any Contract IP.
Commencement Date means the date described as the Commencement Date in the Primary Services Contract Form.
Contract means the agreement between the Client and the Supplier evidenced by the Primary Services Supply Form, its Schedules (including these General Conditions) and all other documents which are either attached to the Primary Services Supply Form by the Supplier or incorporated by reference by the Supplier (including any Purchase Orders).
Contract IP means the Intellectual Property Rights which:
a) attach to Design Documents and reports generated as part of the Services that are provided to the Client by the Supplier; and
b) are created for the specific purpose of the provision of the Services to the Client (and not to other clients, or clients generally, of the Supplier).
Contract Price means the amount payable, excluding Indirect Transaction Taxes, to the Supplier in relation to the provision of the Services in accordance with clause 4 or as varied in accordance with the Contract.
Corporations Act means the Corporations Act 2001 (Cth).
Default Interest Rate means ten per cent (10%) per annum above the Reserve Bank of Australia Cash Rate as at the due date for payment.
Design Documents means any drawings, specifications, detailed engineering documentation and plans required by this Contract and created (including, where the context so requires, those to be created by the Supplier) for the Services, excluding the Documentation.
Dispute means any dispute, question or difference of opinion between the parties concerning or arising out of the Contract, or its validity, construction, meaning, operation or effect, or concerning the rights, duties or Liabilities of either the Client or the Supplier.
Documentation means the operating and procedural manuals relating to the Services as amended from time to time, as provided to the Client by the Supplier in writing.
Estimate has the meaning given to that term in clause 2.4(a).
Force Majeure means an event or circumstance beyond the reasonable control of the party claiming Force Majeure and not able to be overcome by the exercise of reasonable care.
General Conditions means these general conditions set out in this Schedule 5.
Government Agency means any government or governmental, semi-governmental, administrative, municipal, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Guarantor means the person described as the Client’s Guarantor (if any) in the Primary Services Supply Form.
Indemnified Losses means, in relation to any fact, matter or circumstance, all losses, costs, damages, expenses and other liabilities arising out of or in connection with that fact, matter or circumstance including all legal and other professional expenses on a solicitor-client basis incurred in connection with investigating, disputing, defending or settling any claim, action, demand or proceeding relating to that fact, matter or circumstance (including any claim, action, demand or proceeding based on the terms of the Contract).
Indirect Transaction Taxes mean any relevant value added tax, goods and services tax, sales, use or consumption or similar tax or impost imposed, levied or assessed by any Government Agency or otherwise payable, but excludes any related penalty, fine or interest thereon.
Input Tax Credit means any entitlement to a credit for, or offset against, reduction in or refund of, Indirect Transaction Taxes, in relation to any acquisition or the receipt of any supply.
Intellectual Property Right means (in the context of a party) all industrial and intellectual property rights whether protectable by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in the Services or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registrable), rights in relation to registered or unregistered trade marks, circuit layout designs and rights in relation to circuit layouts, but excludes non-assignable moral rights and similar non-assignable personal rights of authors and producers.
Liabilities means damages, Claims, demands, losses, liabilities, costs and expenses of any kind.
Notice means a notice given in accordance with clause 12.
Personnel means, in relation to a party, any of its officers, employees, agents or representatives (including its Representative).
PPSA means the Personal Property Securities Act 2009 (Cth).
PPS Register means the Personal Property Securities Register established under the PPSA.
Primary Services Supply Form means the page headed “Primary Services Supply Form” which contains the details of relevant to the Contract and the Services to be provided.
Purchase Order means, in relation to an Estimate:
a) the Client’s purchase order; or
b) the Estimate, signed by the Client.
Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act.
Representative, of a party, means the person specified as such in the Primary Services Supply Form, or such other person as the party may, by Notice, substitute for that person.
Security Interest has the meaning given to that term in the PPSA.
Services means the services, work and obligations to be performed, developed, produced or supplied by the Supplier under the Contract, as described in any of the Primary Services Supply Form, any relevant Purchase Order, and Schedule 1, and such further services as may be agreed by the parties from time to time.
Site means the premises as specified in the Primary Services Supply Form and at which the Client (and its Personnel) will be able to arrange for provision of the Services for the purposes and on the terms set out in the Contract, and such other places as agreed in writing between the Client and the Supplier from time to time.
Site Standards and Procedures means all obligations, standards, rules, powers, practices and procedures relating to operations, environmental protection, traffic, security, emergencies, health, safety, welfare and other matters concerning the Site or surrounding areas that are put in place by the Client and/or the owner of the Site from time to time and are notified in writing to the Supplier.
Special Conditions means the special conditions (if any) set out in Schedule 4.
Supplier means the person described as the Supplier in the Primary Services Supply Form.
Supplier IP means the Supplier’s Intellectual Property Rights:
a) which are in existence at the date of the Contract;
b) which come into existence after the date of the Contract otherwise than specifically for the purposes of the Contract; or
c) which are created or discovered (present or future), or which come into existence as a result of, for the purpose of or in connection with the provision of the Services or the Contract (including all Intellectual Property Rights in anything developed by the Supplier in providing the Services), excluding any Contract IP.
Taxes means, unless the contrary intention is expressed, any and all taxes, including, without limitation, Indirect Transaction Taxes, excise, stamp, documentary, customs, import/export, payroll, personal, property, real property, interest equalisation, business, occupation, turnover, income, corporation, capital, profits, gains, gross receipts, or other taxes, fees, withholdings, imposts, levies, duties or other charges of any nature whatsoever or whensoever, together with any penalties, fines or interest thereon or similar additions thereto, imposed, levied or assessed by any Government Agency or otherwise payable.
Tax Invoice means an invoice or other document, including without limit a credit note or debit note, in a form that is valid under the applicable law of the jurisdiction in which a liability to pay Indirect Transaction Taxes is imposed, claimed, levied or assessed, which must be held by a person for that person to be able to claim Input Tax Credits.
Term means the period from the Commencement Date until the termination of the Contract in accordance with clause 8.
1.2 Interpretation
In the Contract, headings are for convenience only and do not affect interpretation and, unless the contrary intention appears:
a) an obligation or a liability assumed by 2 or more persons, excluding references to the ‘parties’, binds them jointly and severally and a right conferred on 2 or more persons, excluding references to the ‘parties’, benefits them jointly and severally;
b) a word importing the singular includes the plural and vice versa, and a word of any gender includes the corresponding words of any other gender;
c) the word including or any other form of that word is not a word of limitation;
d) if a word or phrase is given a defined meaning, any other part of speech or grammatical form of that word or phrase has a corresponding meaning;
e) a reference to a person includes an individual, the estate of an individual, a corporation, an authority, an association or parties in a joint venture, a partnership and a trust;
f) a reference to a party includes that party’s executors, administrators, successors and permitted assigns, including persons taking by way of novation and, in the case of a trustee, includes any substituted or additional trustee;
g) a reference to a document (including the Contract) is to that document as varied, novated, ratified or replaced from time to time;
h) a reference to a clause is a reference to a clause of these General Conditions;
i) a reference to a party, schedule, exhibit, attachment or annexure is a reference to a party, schedule, exhibit, attachment or annexure to or of the Contract, and a reference to the Contract includes all schedules, exhibits, attachments and annexures to it;
j) a reference to an agency or body if that agency or body ceases to exist or is reconstituted, renamed or replaced or has its powers or function removed (obsolete body), means the agency or body which performs most closely the functions of the obsolete body;
k) a reference to a statute includes any regulations or other instruments made under it (delegated legislation) and a reference to a statute or delegated legislation or a provision of either includes consolidations, amendments, re-enactments and replacements;
l) day means a calendar day;
m) a reference to AUD, A$, $ or dollar is to the currency of Australia; and
n) the Contract must not be construed adversely to a party just because that party prepared it or caused it to be prepared.
1.3 Measurements
In the Contract, measurements of physical quantities are in Australian legal units of measurement within the meaning of the National Measurement Act 1960 (Cth) and, where any conversion is required from other units to Australian legal units of measurement, the Conversion Factors in schedule 34 of the regulations under that Act must be used or, if those regulations contain no appropriate conversion factor, the conversion factor from Australian Standard AS/NZS 1376-1996 must be used.
1.4 Order of precedence
In the case of any inconsistency between the documents forming part of the Contract, the following order of precedence applies:
a) first, the Primary Services Supply Form;
b) second, any relevant Purchase Order;
c) third, any Special Conditions (if any), provided that clause 13 will override any General Condition to the extent of any inconsistency;
d) fourth, these General Conditions; and
e) fifth, all other Schedules, and any documents attached or incorporated by reference.
2. Contract
2.1 Acknowledgement of Primary Services Supply Form
Subject to clause 2.2, the Contract is formed upon the earlier of the Client:
a) signing the Primary Services Supply Form and returning it to the Supplier; and
b) by its conduct, verbal or otherwise, permitting or otherwise allowing the Supplier to commence or continue performing the Services (including as contemplated by clause 2.3), and, once formed, is the only authority which the parties will recognise for providing the Services.
The Client hereby acknowledges that any terms and conditions attached to any communication from the Client shall not form part of the Contract.
In the absence of written acknowledgment of the Primary Services Supply Form, any request by the Client or its Personnel for the provision of any of the Services by the Supplier will be deemed to be an acceptance of the Contract on the terms contained in the Contract.
2.4 Purchase Orders
a) At the Client’s request, estimates for each instance of the Services to be provided, will be given by the Supplier to the Client in writing, and may specify the proposed:
i) period for provision of the Services;
ii) type and quantity of the Services;
iii) applicable rates for the Services; and
iv) estimate of the costs for the Services, and must be signed on behalf of the Supplier (Estimate).
b) Following the any of the following:
i) the issue of a Purchase Order by the Client to the Supplier accepting (unconditionally) the Estimate; or
ii) where the Estimate is accepted with conditions, the signing of the Purchase Order by or on behalf of the Supplier, the applicable Purchase Order will be final and binding upon the parties on the terms and conditions of the Contract.
c) The Supplier will arrange for the provision of the Services ordered in accordance with each Purchase Order or as otherwise agreed in writing between the parties.
3. Performance by Supplier
3.1 Documentation
From the Commencement Date and during and following the termination or expiry of the Term, the Supplier grants the Client a perpetual, non-exclusive, transferrable licence to use the Documentation (and any extension or updates thereto) to access, operate and use the Documentation, for the purposes of the Client’s business.
3.2 Services
From the Commencement Date and during the Term, the Supplier must provide the Services in accordance with the terms of the Contract, including as designated as the Supplier’s responsibility in Schedule 3, and in consideration of the Contract Price.
3.3 Standards
The Supplier undertakes to the Client that:
a) it will promptly notify the Client of any event that may or does give rise to a material environmental hazard, material damage, or material security threat, at or to the Site and any surrounding areas;
b) it will comply with all reasonable written directions of the Client;
c) it will exercise reasonable skill, care and diligence;
d) it will use its reasonable endeavours to avoid industrial action or disputes at the Site; and
e) it will perform any Services during the Term:
i) using appropriately trained and experienced Personnel;
ii) in accordance with all applicable Site Standards and Procedures, legislation, laws, regulations, by-laws, orders, Government Agency requirements and industry codes in any way affecting or applicable to the Services; and
iii) in accordance with the Contract.
3.4 Independent contractor
For the purposes of the Contract, the Supplier is an independent contractor and must be classified as an independent contractor and will not act as, or be regarded as, an agent, employee or fiduciary of the Client.
3.5 Reporting
Following a request by the Client, the Supplier must submit to the Client from time to time throughout the Term such further information and analyses of the Services and information as the Client may reasonably request.
3.6 Site access
a) The Client must:
i) procure access to the Site for the Supplier and its Personnel; and
ii) ensure that the Supplier and its Personnel have adequate access to the Site to ensure that the Supplier may perform its obligations in accordance with the Contract.
b) If the Supplier’s Personnel are required to undertake or complete any inductions in order to access the Site, the Client must arrange the provision of the inductions and shall be liable for the cost of the Supplier’s Personnel attending and completing the inductions.
4. Payment
4.1 Payment of Contract Price
a) In consideration of the satisfactory performance by the Supplier of the Services, the Client must pay to the Supplier the Contract Price based on the rates or amounts set out in the relevant Purchase Order and/or Schedule 2.
b) Unless otherwise agreed by the parties, all payments to the Supplier will be made by electronic funds transfer to an Australian bank account as nominated by the Supplier.
c) Where any sum, or any part of any sum, payable by the Client pursuant to the Contract is not paid to, or as directed by, the Group on or before its due date for payment, default interest will accrue as follows:
i) on the outstanding amount at the Default Interest Rate, and must be paid by the Client to the Supplier upon demand; and
ii) calculated for the period beginning on the due date for payment of the outstanding amount up to but excluding its date of payment, and will be computed on a daily basis for actual days elapsed and will be compounded on the last day of each month.
4.2 Submission and payment of invoice
a) The Supplier is entitled to submit one invoice per fortnight progressively, for the value of the Services performed.
c) Within 30 Business Days after an invoice is issued in accordance with this clause 4.2, the Client must pay the Supplier the invoice amount.
5. Taxes
5.1 Taxes generally
The Contract Price and all other amounts payable under the Contract (including any amount by way of reimbursement, indemnity, damages or otherwise) are:
a) subject to clause 5.1 (b), inclusive of all Taxes; and
b) exclusive of Indirect Transaction Taxes, unless expressed otherwise.
5.2 Indirect Transaction Taxes
a) If Indirect Transaction Taxes are payable on a supply, transfer or sale (supply) made under or in connection with the Contract, and if the party making that supply is liable under the applicable law, to pay, or collect and remit the Indirect Transaction Taxes to the appropriate Government Agency, the party receiving that supply (recipient) must pay to the supplier an additional amount equal to the Indirect Transaction Taxes payable by the supplier in respect of the supply. The recipient must pay the additional amount to the supplier on the date when the Contract Price (or part thereof) is provided to the supplier (subject to a Tax Invoice being received prior to payment date). This clause 5.2(a) does not apply to the extent that the consideration for the supply is expressed to be inclusive of Indirect Transaction Taxes.
b) The supplier must ensure that each invoice it presents to the recipient in respect of any Indirect Transaction Taxes is a Tax Invoice. If the supplier fails to provide the recipient with a Tax Invoice within the time period required by applicable law of that jurisdiction, the recipient may withhold payment of the amount payable on account of Indirect Transaction Taxes, either pursuant to clause 5.1(b) or as part of the consideration where that consideration is expressed to be inclusive of Indirect Transaction Taxes, until such time as a Tax Invoice is received.
c) Any reference in:
i) the Contract to a cost, expense or other liability (Cost) incurred by a party; or
ii) the calculation of consideration or of any indemnity, reimbursement or similar amount to a Cost, must exclude the amount of an Input Tax Credit entitlement of that party in relation to that Cost.
d) Each party will take all reasonable steps to co-operate with and provide all necessary assistance to the other party to ensure so far as possible that the Taxes treatment is accepted by the relevant Government Agency, including the provision of invoices, proof of payment, proof of source and/or origination and other documentation for this purpose.
6. Risk and title
6.1 Risk
The Client uses, operates and possesses the product of any Services provided to the Client at the Client’s sole risk. Notwithstanding any other provision of these General Conditions, the Supplier has no liability whatsoever for any loss or damage to any property of the Client or any third party arising from the use of the product of any Services following their provision, except to the extent such loss or damage is caused by the Supplier’s negligent conduct.
6.2 Supplier’s plant and equipment
If the performance of the Contract requires the Supplier to use or provide its plant and equipment, ownership and title in the plant and equipment shall remain with the Supplier at all times, and nothing in the Contract gives rise to any proprietary right, equitable right or other interest in the plant and equipment at any time.
7. Insurances
a) The Supplier must effect and maintain at all time during the Term and during performance of its obligations under the Contract each of the following insurances:
i) Public Liability and Property Damage Insurance: Insurance in respect of any injury to or death of any person or any loss, damage or destruction to any property (including that of the Supplier) howsoever caused. These insurances must provide cover to an amount not less than A$20,000,000 in the aggregate.
ii) Workers’ Compensation / Employer’s Liability Insurance: Workers’ compensation and employer’s liability insurances in the names of the Client for its respective rights and interests covering all liabilities, whether arising under statute or common law, in relation to the death of, or injury to, employees or any person deemed to be an employee of the Client.
b) Whenever requested in writing by the Client, the Supplier must promptly provide evidence satisfactory to the Client that it has obtained the insurances that it is obliged to obtain pursuant to the Contract.
8. Termination
8.1 Notice of default
If a party (defaulting party) fails to perform or observe any of its material obligations under the Contract or any Purchase Order, the other party (non-defaulting party) may issue the defaulting party a Notice specifying the default and requesting the defaulting party to remedy the default (default notice). The default notice must not be unreasonably given and must specify that it is a notice under this clause 8.1.
8.2 Remedy of default
Subject to clause 8.3, the defaulting party must remedy the default in a proper manner and to the non-defaulting party’s reasonable satisfaction within thirty (30) days of receipt of the default notice, failing which the non-defaulting party may by Notice to the defaulting party do any of the following:
a) in the case of the Supplier (only), suspend performance of its obligations under the Contract or any Purchase Order; and
b) terminate the Contract or any Purchase Order.
To the extent permitted by law, a party may by Notice to the other party terminate the Contract or any Purchase Order immediately if any of the following occurs:
a) the other party fails to perform or observe any of its material obligations under the Contract or any Purchase Order, and such failure is incapable of remedy; or
b) in respect of the other party:
i) a receiver, liquidator, trustee in bankruptcy or official manager or administrator of the other party or any of its business or property is appointed; or
ii) the other party threatens to cease to carry on its business or is unable to pay its debts within the meaning of the Corporations Act 2001 (Cth) or, in circumstances where one of the parties is a non-Australian entity, any equivalent legislation of the jurisdiction in which that non-Australian entity is registered.
8.4 Termination by Supplier
a) by giving 14 days’ written notice to the Client; or
b) immediately by written notice to the Client, where any of the Client, its Related Bodies Corporate or their Personnel, has:
i) failed to comply with any material applicable Site Standards and Procedures, legislation, laws, regulations, by-laws, orders, Government Agency requirements and industry codes in any way affecting or applicable to Services; or
ii) committed any wrongful, criminal, fraudulent, malicious, deceitful, reckless or wilful acts or omissions codes in any way affecting or applicable to the Services, as determined by the Supplier (acting reasonably).
8.5 Upon termination
In the event of a termination of the Contract or any Purchase Order (for the avoidance of doubt, including in accordance with clause 14.3), the Client must promptly pay to the Supplier:
a) any amounts due to the Supplier including as evidenced by all unpaid progress certificates;
b) the cost of materials and equipment reasonably ordered, and any Services provided, by the Supplier for the performance of its obligations in accordance with the Contract or any Purchase Order; and
c) the Supplier’s reasonable demobilisation costs.
9. Intellectual property
9.1 Client IP
a) The Supplier acknowledges that the Client remains the owner of all Client IP and that nothing in the Contract prevents, limits or restricts the Client’s subsequent use or exploitation of the Client IP.
b) The Client grants to the Supplier a non-exclusive, transferable, perpetual, irrevocable, royalty-free licence to use all Client IP to the extent required for the purposes of enjoying the Services and for internal research and development purposes at any time.
9.2 Contract IP
a) The parties agree that all Contract IP will be vested in the Supplier and will be the Supplier’s property as and when created and the Client assigns and must ensure that all of its Personnel assign all their respective right, title and interest in and to the Contract IP (whether created before, on or after the Commencement Date) to the Supplier.
b) On the Supplier’s request, the Client must execute any formal assignment or other document required to give effect to this clause 9.2.
9.3 Supplier IP
a) The Client acknowledges and agrees that the Supplier remains the owner of all Supplier IP and that nothing in the Contract prevents, limits or restricts the Supplier’s subsequent use or exploitation of Supplier IP.
b) The Supplier grants to the Client a non-exclusive, non-transferable, royalty-free, revocable licence to use the Supplier IP for the purpose of providing the Services during the Term.
9.4 Warranties
a) The Client warrants that it has the right to:
i) assign all Contract IP to the Supplier in accordance with clauses 9.2(a) and 9.2(b); and
ii) grant to the Supplier the licence under clause 9.1(b).
b) The Supplier warrants that it has the right to grant to the Client the licence under clause 9.3(b).
10. Confidentiality
10.1 Confidentiality obligations
Subject to clause 10.2:
a) each party (receiving party) must treat the Contract and the information provided by the other party and its Personnel (for the avoidance of doubt, including the Documentation) (disclosing party) as confidential information. The receiving party must only use such information to the extent necessary to provide or enjoy (as the case may be) the Services and must not use, disclose or turn to its advantage or in any way profit from the use of such information without the prior written consent of the disclosing party. This undertaking does not apply to information which at the time of disclosure is available to the public or which must by law, or by the rules of a recognised stock exchange on which the party’s securities are quoted, be disclosed;
b) the receiving party must comply with, and must use its best endeavours to ensure that each of its Personnel and other persons for whom it is responsible or over whom it is capable of exercising control complies with, the confidentiality obligations in this clause 10.1; and
c) immediately upon completion of the Services or the termination or expiry of the Contract (whichever first occurs) the receiving party will promptly, at the option of the disclosing party, deliver to the disclosing party or destroy or make generally inaccessible all confidential information (in whatever form) in the custody, possession or control of the receiving party or any of its Personnel.
10.2 Public announcements
The Supplier may make media releases, public announcements and social media releases in relation to the existence and subject matter of the Contract and the Services.
11. Dispute resolution
11.1 Conferral
If at any time there is a Dispute, the parties will as a condition precedent to the commencement of any proceedings in respect of the Dispute (other than proceedings required on an urgent interlocutory basis), promptly (and no later than 14 days) following the occurrence of a Dispute, confer in an endeavour to settle the Dispute.
11.2 Representative
The parties will ensure that a senior executive officer who has authority to bind its respective party attends the conference.
11.3 Failure to agree
If the Client and the Supplier fail to agree within 30 days after first conferring, either party may commence legal proceedings in an appropriate court to resolve the Dispute.
11.4 Obligations continue
Notwithstanding the existence of any Dispute, the parties will continue to perform all of their obligations under the Contract (if any) without limiting their position in respect of any Dispute.
12. Notices
12.1 Notices in writing
All Notices must be in writing and in the English language.
12.2 Method of sending Notices
a) Subject to any other specific provision to the contrary, where any Notice requires an act or thing to be performed within a time specified, the Notice must be sent:
i) as a signed document attached to an email; orby mail to,
ii) or be left at, the address of the party or person to whom or which the requirement specified in the Notice is directed.
b) Subject to clause 12.5, the Notice referred to in clause 12.2(a) must be sent to or left at:
i) in the case of the Supplier or the Client – the relevant address referred to in clause 12.3(a);
ii) in the case of any other party or person being a body corporate – its registered office or principal office for the time being in Western Australia; and
iii) in the case of any other party or person – its address last known to the party or person sending or leaving the Notice.
12.3 Serving and giving of Notices
Except as provided in clause 12.2 and subject to anything elsewhere specifically provided to the contrary, and without limiting any other proper mode of service or giving the Notices, a Notice will be properly served or given:
a) if posted by mail to the party’s Representative to the address (if any) nominated in the Contract as being the address of the party’s Representative, or if left at that address;
b) if posted to the party at its registered office in Western Australia, or if left at that registered office;
c) if handed to the party’s Representative personally; or
d) if sent electronically as an attachment to the party’s Representative at the email address specified in the Contract.
12.4 Receipt of Notices
The Notices will be deemed to have been received:
a) if delivered personally, upon delivery;
b) if mailed to an address in the city of despatch, upon expiry of 2 working days after the day of despatch;
c) if mailed elsewhere within Australia on the expiry of 7 days after the day of despatch;
d) if mailed from overseas, on the expiry of 14 days after the day of despatch; or
e) if sent electronically as an email attachment:
i) if it is transmitted by or before 5.00pm (Australian Western Standard Time) on a day – at 5.00pm on that day; or
ii) if it is transmitted after 5.00pm (Australian Western Standard Time) on a day – at 9am on the next day.
12.5 Substitution of address
Either party may by Notice from time to time substitute a new address or email address for any of the addresses or email addresses of the party and the party’s Representative for the purpose of this clause 12.
13. Liability
a) To the maximum extent permitted by law, notwithstanding any other clause in the Contract but subject to clauses 13(b) and 13(c), the maximum Liability of the Supplier to the Client for all Liabilities howsoever arising in connection with the Contract shall be limited (in the aggregate) to an amount that is equivalent to, 50% of the Contract Price paid to the Supplier in the immediately preceding 12 months.
b) The limitation contained in clause 13(a) shall not apply to any liability to the extent arising in connection with:
i) personal injury, death or sickness;
ii) wrongful, criminal, fraudulent, malicious, deceitful, reckless or wilful acts or omissions by the Supplier or its directors or employees; or
iii) any breach of clauses 9 or 10 by the Supplier or its directors or employees.
c) Notwithstanding any provision of the Contract, to the maximum extent permitted by law, neither party is liable to the other party for any indirect, consequential or special loss (including loss of revenue, loss of profit, loss of product, loss of production, increased financing costs, loss of opportunity, loss of business opportunity, and delay costs, except to the extent that these constitute direct loss), whether arising out of or in connection with the Contract, under statute, in tort (for negligence or otherwise) or any other basis in law or equity, and (without limiting the foregoing) the Client shall be limited to recovery of damages which have arisen directly out of the Contract.
d) The Client must pay to the Supplier on demand the amount of any Indemnified Loss suffered or incurred by the Supplier and its Related Bodies Corporate, or any of their Personnel, arising out of or in connection with any breach of the Contract by the Client or its Related Bodies Corporate, or any of their Personnel, except to the extent caused by a wilful default or fraudulent act by the Supplier.
14. Force Majeure
14.1 Event of Force Majeure
If as a result of Force Majeure, any party is rendered unable, wholly or in part, to carry out its obligations under the Contract or any Purchase Order, other than the obligation to pay any amounts due, then, provided that the relevant party has taken all reasonable precautions, due care and reasonable measures with the object and intent of ensuring it is able to carry out its obligations, the obligations of the party giving such notice, so far as and to the extent that the obligations are affected by such Force Majeure, shall be suspended during the continuance of any inability so caused and for such reasonable period thereafter as may be necessary for the party to put itself in the same position that it occupied prior to the Force Majeure, but for no longer period.
14.2 Notice of Force Majeure
The party claiming a Force Majeure shall notify the other party of the Force Majeure within a reasonable time after the occurrence of the facts relied on and shall keep the other party informed of all significant developments (including termination of the Force Majeure). Such notice shall give reasonably full particulars of the Force Majeure and also estimate the period of time which the party will probably require to remedy the Force Majeure. The giving of notice is a condition precedent to reliance on the Force Majeure. The affected party shall use all reasonable diligence to remove or overcome the Force Majeure as quickly as possible in an economic manner but shall not be obligated to settle any labour dispute except on terms acceptable to it, and all such disputes shall be handled within the sole discretion of the affected party.
14.3 Termination for Force Majeure
If a delay or failure by a party to perform its obligations due to Force Majeure exceeds 60 days, either party may immediately terminate the Contract or any Purchase Order on providing Notice in writing to the other party.
15. No poaching
a) During the Term and extending for a period of 12 months after the expiry of the Term, to the extent permitted by law, the Client must not, without the Supplier’s prior written consent directly or indirectly solicit, offer to employ, employ, hire as a contractor, agent or consultant, or otherwise procure services from any of the Supplier’s Personnel.
b) Clause 15(a) does not apply where the relevant Personnel is employed or contracted:
i) as a consequence of a bona fide advertising or recruitment campaign advertised publicly to a wide range of potential applicants; and
ii) in response to an unsolicited approach made by the Personnel.
c) During the Term and extending for a period of 12 months after the expiry of the Term, to the extent permitted by law, the Client must not, without the Supplier’s prior written consent, deal directly with or solicit the custom of the Supplier’s customers or suppliers, or their Related Bodies Corporate.
d) Each party acknowledges and agrees that the covenants contained in this clause 15 are fair and reasonable in all respects, and are reasonably required by the Supplier to protect its business.
16. Guarantee and indemnity
16.1 Guarantee
In consideration of the Supplier entering into the Contract with the Client at the request of the Guarantor, the Guarantor irrevocably and unconditionally guarantees to the Supplier the due and punctual performance of all present and future obligations and the payment of all present and future liabilities of the Client under the Contract and must on demand by the Supplier perform such obligations or pay such liabilities in the manner specified in the Contract if the Client fails to do so on the due date.
16.2 Indemnity
As a separate and independent obligation from that contained in clause 16.1, the Guarantor must pay to the Supplier on demand the amount of any Indemnified Loss suffered or incurred by the Supplier arising out of or in connection with any failure of the Client to perform any obligation or pay any liability under the Contract on the due date.
16.3 Nature and preservation of liability
The Guarantor acknowledges and agrees that each of its obligations under this clause 16:
a) is a principal and continuing obligation and will not be affected by any principle of law or equity which might otherwise reduce or limit in any way the liability of the Guarantor under this clause 16; and
b) continues notwithstanding any amendment of the Contract or any waiver, consent or notice given under the Contract by any party to another.
16.4 Waiver of rights
The Guarantor must not exercise any right of indemnity or subrogation which it might otherwise be entitled to claim and enforce against or in respect of the Client and irrevocably waives all those rights of indemnity or subrogation it may have.
16.5 Restrictions on Guarantor’s dealings
The Guarantor irrevocably appoints the Supplier as its attorney to prove in the insolvency of the Client for all money to which the Guarantor may be entitled from the Client up to an amount which does not exceed the amount which may be payable by the Guarantor under the Contract. The Guarantor acknowledges that the Supplier may, subject to the terms of the Contract, retain any money which the Supplier may receive from any proof on account of the Guarantor’s liability under this clause 16.
17. General
17.1 Entire agreement
17.2 Severance
Any provision of the Contract that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of the Contract nor affect the validity or enforceability of that provision in any other jurisdiction.
17.3 Law applicable
The Contract is governed by the law of the State of Western Australia and the parties submit to the jurisdiction of the courts of the State of Western Australia and of any court which may hear appeals from any of those courts, for any proceedings in connection with the Contract.
17.4 PPSA
a) To the extent any action or transaction under the Contract creates a Security Interest for the Supplier for the purposes of the PPSA, the Supplier may at its discretion, register any such Security Interest, and the Client agrees to such registration and will, upon request from the Supplier, promptly provide all reasonable assistance to enable such registration and otherwise in relation to the PPSA.
b) The Supplier does not need to give the Client any notice under the PPSA unless the notice is required by the PPSA, and that requirement cannot be excluded.
Each party must not at any time assign its rights or novate its rights and obligations under the Contract to any third party, without the written consent of the other party (which consent must not be unreasonably withheld or delayed).
17.6 Waiver in writing
The waiver or relaxation partly or wholly of the terms of the Contract will be valid only if in writing and signed by the Client and will apply to a particular occasion and will not be continuing unless expressed so to be and further will not constitute a waiver or relaxation of any other Condition or term.
17.7 Further assurances
Each party agrees to do all things and execute all deeds, instruments, transfers or other documents as may be necessary or desirable to give full effect to the provisions of the Contract and the transactions contemplated by it.
17.8 Survival
Clauses 1, 4, 5, 6, 8, 9, 10, 11, 13, 15, 16 and 17 will survive the expiry or termination of the Contract or any Purchase Order.
17.9 Costs
Each party must pay its own costs and expenses in connection with negotiating, preparing, executing and performing the Contract.
17.10 Amendments in writing
Modifications and amendments to the Contract must be in writing signed by each of the parties.
17.11 Counterparts
The Contract may be executed in any number of counterparts (including electronically) and by the parties on separate counterparts. Each counterpart constitutes an original of the Contract, and all together constitute one agreement.