1. Interpretation

1.1 Definitions

Agreement means this document.

Billing Date means the date specified in Annexure A of this Agreement.

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

Client means the party identified as such in Annexure A of this Agreement.

Company means Muru Mittigar Limited ABN 45 093 341 943.

Company Rates means the rates specified in Annexure A of this Agreement.

Delivery Program means the program outlining agreed timing of deliverables and milestones, and any other agreed terms agreed between the parties for the delivery of the Services, as indicated in Annexure A of this Agreement.

Fee means the fees incurred in accordance with the Company Rates.

Force Majeure Event means any event beyond the Company’s control, including but not limited to natural disasters, war, invasion, terrorism, epidemic, pandemic or other widespread disease or public health emergency.

GST Act means A New Tax System (Goods and Services) Act 1999 (Cth), as amended or replaced from time to time.

Insolvency Event means any of the following events:

• the Client resolves to wind itself up, or otherwise dissolve itself, or gives notice of an intention to do so or is otherwise wound up or dissolved;
• the Client is, or states that it is, insolvent or bankrupt;
• any step is taken to appoint a receiver, a receiver and manager, a trustee in bankruptcy, a provisional liquidator, a liquidator, an administrator or other like person to the whole or part of the Client’s assets, operations or business; or
• where anything analogous or having a substantially similar effect to any of the events specified above happens under any Law.

Known Hazards means any hazards or dangers, actual or potential, anticipated by the Client during the Term including, but not limited to, presence or risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons.

Law means any statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in New South Wales and includes any industry codes of conduct.

Liabilities means all liabilities, losses, damages, outgoings, costs and expenses of whatever description.

Liability Cap means the lesser of:

• 10 (ten) times the Fee; or
• $20,000.

Personnel means officers, employees, agents or subcontractors of each party, as relevant.

Services means the services provided by the Company to the Client, being:

• the services identified in Annexure A of this Agreement; or
• any other services which the parties agree are to be the subject of this Agreement.

Term means the time period specified under Annexure A of this Agreement.

1.2 Interpretation

The clause headings and sub-clause headings shall not form part of this Contract or be used in its interpretation.

Words in the singular include the plural and words in the plural include the singular, according to the requirements of the context.

2. Provision of Services

2.1

The Company will provide the Services for the duration of the Term:

• in accordance with the Delivery Program; or
• on the terms agreed between the parties in writing pursuant to this Agreement.

2.2

The Client authorises the Company to subcontract the whole or part of the Services to an agent or subcontractor.

3. Client’s Obligations

3.1

The Client must:

• ensure that the Company is notified in writing of cancellation of the Services not less than 48 hours prior to the commencement of the Services;
• ensure that all necessary information, instructions and documents are provided to the Company in due time, and in any event not later than 48 hours prior to the required performance of the Services;
• procure all necessary access for the Company and its Personnel to the premises where the Services are to be performed and take all necessary steps to eliminate or remedy any obstacles to, or interruptions in, the performance of the Services caused by the Client or its Personnel;
• if necessary, supply any special equipment and personnel necessary for the performance of the Services;
• ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of Services;
• inform the Company in advance of any Known Hazards, and take all reasonable endeavours to mitigate the impact of these Known Hazards; and
• comply with all Law.

4. Payment

4.1

The Company must provide a tax invoice to the Client for the Services performed in accordance with the Company Rates within [5 Business Days] of the Billing Date, which specifies:

• the Fees incurred;
• any GST payable under the GST Act; and
• the due date for payment.

4.2

Unless otherwise specified in an invoice, the Client must pay the amount stated in the invoice under clause 4.1(a), including GST, within 15 Business Days of receipt. All late payments will incur interest at a rate of 1.5% per month from the due date for payment up to and including the date on which payment is received.

4.3

The Client will not be entitled to retain or defer payment of any sums due to the Company on account of any dispute, counter claim or set off which it may allege against the Company.

4.4

The Client will be liable for all costs incurred by the Company in the collection of Fees, including legal fees and related costs.

4.5

If not stated elsewhere, the Client will not be liable for payment of the Services if the Client notifies the Company in writing more than 48 hours prior to the commencement of the Services of cancellation. If the Client does not notify the Company of cancellation more than 48 hours prior to the commencement of the Services, and should the Services include daily fees, the Company reserves the right to charge the Client one day’s Services under Annexure A of this Agreement.

4.6

If a Force Majeure Event occurs, the Company will promptly inform the Client of any anticipated impact on the Services and will be entitled to any additional costs reasonably and necessarily incurred to complete the Services from the Client.

4.7

If the Company is unable to perform all or part of the Services as a result of a Force Majeure Event or a failure by the Client to comply with any of its obligations under clause 3, the Company shall nevertheless be entitled to payment of:

• the amount of all non-refundable expenses reasonably incurred by the Company; and
• the Fees incurred for Services actually performed.

5. Suspension or Termination of Services

5.1

Without prejudice to any rights of the Company, the Company may suspend the provision of Services where the Client:

• is in breach of this Agreement;
• has suspended any payment under the Agreement; or
• has experienced an Insolvency Event,

(Suspension Event) by providing a notice of suspension and request to remedy (Notice of Suspension).

5.2

If the Client does not remedy the Suspension Event within 10 Business Days of receipt of the Notice of Suspension, or such longer time as agreed between the parties in writing, the Company may terminate this Agreement by written notice to the Client.

6. Liability and Indemnity

6.1 Limitation of Liability

6.1.1

The liability of the Company in respect of any claim for loss, damage or expense of any nature and howsoever arising shall in no circumstances exceed the Liability Cap.

6.1.2

The Company will not be liable to the Client for any claims for or with respect to, loss of interest, earnings, profit or opportunity, or any other special, indirect or consequential damages.

6.1.3

The Company shall not be liable for any delayed, partial or total non-performance of the Services arising directly or indirectly from any event outside the Company’s control including any Force Majeure Event.

6.1.4

In the event of any claim arising against the Company, the Client must give written notice to the Company within thirty (30) days of discovery of the facts alleged to justify such claim and, in any case, the Company shall be discharged from all liability for all claims for loss, damage or expense unless suit is brought within the earlier of one year from:

• the date of performance by the Company of the service which gives rise to the claim; or
• the date when the service should have been completed in the event of any alleged non-performance.

6.2 Indemnity

The Client shall indemnify the Company and its Personnel against all claims (actual or threatened) by any third party for loss, damage or expense of whatsoever nature including all legal expenses and related costs and howsoever arising relating to the performance, purported performance or non-performance, of any part or all of the Services.

7. Privacy

7.1

The Client must not, and must not permit any of its Personnel to:

• issue any press or publicity release; or
• publish or otherwise disclose any photograph or other information,

concerning the terms of this Agreement or the Company without the express prior written consent of the Company.

7.2

The Client must not use the Company’s corporate name or registered marks for advertising purposes without the Company’s prior written authorisation.

8. Dispute Resolution

8.1

If a dispute or difference arises out of or in connection with this Agreement (Dispute), then either party may give notice to the other party setting out the details of the dispute and if applicable, the remedy that the party requires (Notice of Dispute).

8.2

If there is a Dispute:

• the Company must continue to perform the Services; and
• the Client must pay the Fee in accordance with the provisions of this Agreement, other than any part of the Fee referable to a Dispute.

8.3

Within 5 Business Days of the other party receiving the Notice of Dispute, each party must appoint a representative (who has the authority to resolve disputes on behalf of that party) and the parties’ representatives must meet and negotiate the dispute in good faith.

8.4

If the parties have not met and resolved the dispute within 10 Business Days of the other party’s receipt of the Notice of Dispute, either party may refer the Dispute to expert determination in accordance with the relevant rules published by the Resolution Institute ACN 008 651 232.

9. Modern Slavery

9.1

‘Modern Slavery’ means conduct which would constitute an offence under the Modern Slavery Act 2018 (Cth), and this includes trafficking of persons, illegal forms of child labour, slavery, forced labour, deceptive recruiting, debt bondage or offences involving non-citizens working in Australia without the correct visa.

9.2

The Client represents, warrants and undertakes that in the course of operating any of its business (including its performance of this Agreement), the Client will:

• comply with all such laws and policies in relation to the Modern Slavery Act 2018 (Cth) if applicable to the Client;
• have processes to review its risks of Modern Slavery practices in its operations and supply chains; and
• have processes to ensure it conducts its business in alignment with the principles and objectives of laws in relation to Modern Slavery.

10. General

10.1 Service of Notices

10.1.1

A notice, consent, approval or other communication under this Agreement must be in writing, signed by or on behalf of the party giving it, addressed to the party to whom it is to be given and:

• hand delivered to that party’s address;
• sent by pre-paid mail to that party’s address; or
• transmitted by email to that party’s email address,

as set out in Annexure A of this Agreement.

10.1.2

If a notice is received on a day which is not a Business Day or after 5.00pm on a Business Day, that notice is regarded as received at 9.00am on the following Business Day.

10.2 No Poaching

During the Term, and for a period of one year after the end of the Term, neither the Client nor its Personnel may solicit and/or make any offer of employment to any of the Company’s employees or encourage the Company’s employees to leave their employment with the Company.

10.3 Severance

If the whole or any part of a provision of this Agreement is void or voidable by either party or unenforceable or illegal in New South Wales, the whole or that part (as the case requires) of that provision will be severed and the remainder of this Agreement will have full force and effect.

10.4 Entire Agreement

This Agreement contains the entire agreement between the parties concerning its subject matter and supersedes all prior agreements and understandings between the parties in connection with that subject matter.

10.5 Governing Law

This Agreement is governed by the law of New South Wales, and each party irrevocably submits to the exclusive jurisdiction of the courts of New South Wales.

10.6 Counterparts

This Agreement may be executed in counterparts and by the parties on separate counterparts, which taken together constitute one agreement.

10.7 No Partnership or Joint Venture

This Agreement is not intended to create a partnership, joint venture or agency relationship between the parties.

10.8 No Merger

The rights and obligations of the parties will not merge on completion of any obligation or transaction under this Agreement.

Terms and Conditions of Purchase and Procurement

1. General

1.1

Every purchase order (‘Order’) we issue is an offer to acquire products or services from you and is subject to these terms and conditions (‘Standard Terms’) and any written special conditions that we include with our Order. Where you accept our Order, there is a contract on this basis. Any terms and conditions in your quote, offer document, Order acceptance or any other document you supply are excluded.

2. Delivery

2.1

You must supply products or services as, where and when specified in our Order or otherwise directed by us (at any time) in writing. You must keep us informed of any delays or other matter which may affect the delivery of products.

3. Cancellations

3.1

We may cancel an Order by written notice to you:

• at any time prior to supply; or
• after supply, if products are not in accordance with our Order (including where wrong quantities are delivered) or if you otherwise breach this contract.

4. Quality

4.1

You must, and all products you supply must, strictly comply with all applicable laws, regulations, codes, and Australian Standards, and with our Order (including any performance criteria).

4.2

Goods must be new, fit for the purpose for which they are acquired, free from damage and defects in workmanship and materials and of merchantable quality. Services must be performed to a high standard of professional care and skill by appropriately trained and qualified personnel.

4.3

Without limiting clause 4.2, you must assign to us the benefit of any warranty or guarantee given by the manufacturer in respect of goods.

4.4

We may reject products which do not comply with our Order or these Standard Terms, even if we have previously inspected and/or accepted them. Where products are rejected, you must, at our option within 5 days:

• replace, repair or re-supply the products at your expense; or
• refund to us any amount we paid for the rejected products.

5. Price and Payment

5.1

The price for products is the price stated in our Order.

5.2

Unless the Order expressly states otherwise, it includes:

• any applicable GST; and
• all packing, insurance and delivery charges and all taxes and duties.

5.3

You may only invoice us after all products have been delivered or completed to our satisfaction. Your invoice must:

• be correctly addressed;
• identify our Order number;
• be a valid tax invoice for GST purposes; and
• where we request it, be accompanied by documentation substantiating the amount claimed.

5.4

We will pay all correctly rendered and undisputed invoices within 30 days after receipt of your invoice.

5.5

If we dispute an invoice:

• payment is suspended until the dispute is resolved; and
• you must give us any information or document we request in relation to the invoice or the dispute.

5.6

As well as any of our other rights, we may deduct from your invoice any amount you owe us (including under any indemnity).

6. Title and Risk

6.1

Title to and risk in products passes to us on delivery.

6.2

You warrant that:

• you have complete ownership of the products free of any encumbrances;
• we will receive clear and complete title to the products free from any encumbrances; and
• no claim of infringement of moral rights will be brought against us by your employees or agents.

6.3

Any intellectual property rights created from your performance of this contract vest in and are assigned to us on creation.

7. Our Materials

7.1

Any tools, patterns, designs, drawings, dies or other material used in supplying or manufacturing products and that is paid for or supplied by us (‘our materials’) is our property.

7.2

While our materials are in your possession, you:

• hold them solely as our bailee;
• must store them securely and maintain them in good repair;
• must use them only for the purpose of performing this contract; and
• must return them to us on demand.

8. Confidentiality

8.1

You must keep our confidential information (which includes information about our clients and employees) confidential and not directly or indirectly disclose, use, record, memorise, reverse engineer, or copy it for any purpose other than to perform this contract, without our prior written approval.

9. Privacy

9.1

You must comply, and must ensure that your representatives (employees, officers, (sub-)contractors and other agents) comply, with all applicable privacy laws.

10. Indemnity and Insurance

10.1

You indemnify us, our officers, employees, agents and customers against all loss, damage, claim, expense or liability incurred in connection with:

• your performance or breach of this contract;
• any products you supply;
• a claim by a third party that the products infringe their intellectual property rights; and
• any negligent or wilfully wrong act or omission by you, your employees, agents and contractors.

10.2

You must effect and maintain appropriate insurance policies, taking into account the products you supply. You must provide us with proof of your insurance upon request.

11. Subcontracting

11.1

You must not subcontract the whole or any part of your obligations under this contract without our prior written approval, which we may grant or withhold at our sole discretion. You will remain principally liable for the performance of this contract and the acts and omissions of any subcontractor.

12. Termination

12.1

As well as our other rights, we may terminate this contract where:

• you fail to supply products by the date required in our Order;
• you breach this contract; or
• you become or threaten to become insolvent or bankrupt or enter into a compromise or arrangement with creditors or any form of external administration.

13. Miscellaneous

13.1

If any one or more provisions of these General Conditions are found to be illegal or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

13.2

During the course of providing the services and for a period of one year thereafter, the supplier shall not directly or indirectly entice, encourage, or make any offer to the Company’s employees to leave their employment with the Company.

13.3

Use of the Company’s corporate name or registered marks for advertising purposes is not permitted without the Company’s prior written authorisation.

14. Governing Law, Jurisdiction and Dispute Resolution

14.1

Unless specifically agreed otherwise, all disputes arising out or in connection with Contractual Relationship(s) hereunder shall be governed by the substantive laws of Australia exclusive of any rules with respect to conflicts of laws and be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules.

End of Terms and Conditions