Terms and Conditions

APEX Engineering Technology Group Pty Ltd

1. Parties

1.1 The Agreement, including these Terms and Conditions, is entered into by APEX Engineering Technology Group Pty Ltd (ACN 653 779 885) of 404 Victoria Road, Malaga WA 6090 (Supplier); and (Customer).

1.2 The Supplier and the Customer are together referred to as Parties and each is a Party.

2. Operation of Agreement

2.1 The Supplier provides specialist engineering services including design, manufacturing, machine shop services and non-destructive testing, to support and enhance the performance and durability of heavy-industry equipment. The Supplier also supplies materials, parts and equipment to customers for use in carrying out engineering and related services in-house.

2.2 The Supplier agrees to provide the Services, and the Customer agrees to pay the Fee for the Services in accordance with this Agreement.

2.3 This Agreement applies to each Quote issued by the Supplier and accepted by the Customer and to each Purchase Order accepted by the Supplier, unless the Parties agree otherwise in writing.

2.4 A Quote is accepted when:

the Customer signs or otherwise confirms acceptance of the Quote in writing;
the Customer issues a Purchase Order corresponding to the Quote;
the Customer arranges transportation of Customer Materials to the Supplier for the purpose of the Services;
the Customer instructs the Supplier to commence the Services; or
the Supplier commences the Services after receiving a Purchase Order or other written instructions from the Customer.

2.5 The Supplier is not obliged to accept any Purchase Order. A Purchase Order is accepted only when the Supplier confirms acceptance in writing or commences performance of the relevant Services.

2.6 No Customer terms, including terms contained in any Purchase Order, procurement portal, delivery docket, email footer, supplier onboarding document or other Customer document, apply unless expressly agreed in writing and signed by the Supplier.

3. Order of Precedence

3.1 Unless expressly agreed in writing by both parties as a formal variation, any purchase order terms and conditions do not amend, vary, supplement or override these Terms and Conditions and have no effect to the extent of any inconsistency with this Agreement.

3.2 If there is any inconsistency between the documents forming the Agreement, the following order of precedence applies, from highest to lowest:

any written variation signed by both Parties;
these Terms and Conditions;
the Supplier’s Quote; and
any Purchase Order.

3.3 Any terms or conditions included in any Purchase Order, delivery docket, receipt, email, portal procured document or other document issued by the Customer are excluded and have no contractual effect, whether issued before or after these Terms are provided, unless the Supplier expressly accepts those terms in writing by an authorised representative. The Supplier’s acceptance, fulfilment or performance of any Purchase Order does not constitute acceptance of any Customer’s terms or conditions.

3.4 For clarity, a Purchase Order may be used to confirm administrative or commercial details, including purchase order number, quantity, delivery address and requested delivery date, but only to the extent those details are not inconsistent with the Quote, these Terms and Conditions or any signed variation.

4. Term

4.1 The Term of this Agreement commences on the Commencement Date and continues until the Expiry Date, unless terminated in accordance with this Agreement.

4.2 If the Supplier is engaged for a single Quote or Purchase Order only, this Agreement continues until the later of:

completion of the Services;
delivery or collection of the Products;
payment in full of all amounts payable to the Supplier; and
expiry of any obligations that expressly survive completion.

4.3 If the Supplier is engaged on any ongoing basis, the Agreement continues until the earlier of:

the Expiry Date; or
the date that is 2 years after the Commencement Date, if no Expiry Date is specified; or
termination under clause 21.

4.4 If clause 4.3 applies to the Term, the Parties may extend this Agreement for a further term as agreed between the Parties, by providing at least thirty (30) days written notice prior to completion of the Term.

4.5 Unless otherwise agreed by the Parties in writing, an extension of the Term under clause 4.4 is to be on the same terms and conditions as this Agreement.

5. Services

5.1 The Supplier must perform the Services:

with due care, skill and diligence;
in accordance with generally accepted industry standards applicable to specialist engineering, surface treatment, electropolishing, engraving, industrial classification or related service of the kind described in the Quote;
in accordance with the Specifications agreed in writing; and
in compliance with all Legal Requirements applicable to the provision of the Services.

5.2 The Customer must provide, within the time reasonably required by the Supplier:

all Customer Materials;
all components to be supplied by the Customer;
all specifications, drawing, tolerances, standards, samples, operating parameters, technical information;
all access approvals, permits, safety requirements and site information reasonably required; and
all instructions and decisions necessary for the Supplier to perform the Services.

5.3 The Supplier is entitled to rely on the accuracy, completeness and suitability of all Customer Materials and Specifications provided or approved by the Customer.

5.4 The Customer warrants that all Customer Materials and Components are suitable for the Services, free from undisclosed defects or contamination, and provided in a condition fit for processing, except to the extent the Supplier has expressly accepted otherwise in writing.

5.5 If the Supplier’s performance is delayed or affected by any failure by the Customer to comply with this clause 5:

all affected timeframes are extended by the period of delay and any reasonable remobilisation or rescheduling period;
the Supplier may recover its reasonable additional costs, including storage, handling, labour, remobilisation, subcontractor, transport and rescheduling costs; and
the Supplier is not liable for any Loss arising from that delay or affected performance.

5.6 If the Supplier’s performance is delayed due to the Customer’s failure to provide Specifications, information, access or approvals when required, any delivery dates will be extended by the period of delay, and the Supplier may charge reasonable costs caused by the delay (including storage and rescheduling).

6. Fee and Payment

6.1 The Supplier will provide the Customer with a Quote for the Services prior to the Commencement Date.

6.2 The Supplier’s Quote will remain valid for thirty (30) calendar days from the date of the quotation and the Supplier may withdraw or vary this prior to the Supplier’s acceptance of a Customer’s Purchase Order.

6.3 All prices are in Australian Dollars and are quoted exclusive of GST.

6.4 The Supplier may invoice the Customer:

on completion of the Services;
on delivery or availability for collection of the Products;
on achievement of any milestone stated in the Quote;
progressively, if stated in the Quote; or
for deposits, procurement costs, third-party costs or cancellation costs where payable under this Agreement.

6.5 Unless agreed otherwise in writing by the Parties, the Customer must pay each invoice in full within thirty (30) days after the end of the month in which the Tax Invoice is issued.

6.6 The Customer must pay all amounts in Australian Dollars by electronic funds transfer to the account nominated by the Supplier without set-off, deduction, counterclaim or withholding except to the extent required by law or expressly agreed in writing.

6.7 If the Customer disputes an invoice in good faith, the Customer must:

notify the Supplier in writing before the due date, identifying the disputed amount and provide reasonable details of the basis for the dispute; and
pay the undisputed portion of the invoice by the due date.

6.8 Interest accrues on overdue undisputed amounts at the rate of 1.5% per month, calculated daily from the due date until payment in full. The Supplier may alternatively claim interest under any applicable legislation if that produces a higher mandatory rate or if required by law.

6.9 The Customer is liable for and must pay the Supplier’s reasonable costs of recovering overdue amounts, including debt collection, agency fees, legal costs on an indemnity basis to the extent permitted by law, filing fees and enforcement costs.

6.10 If the Customer fails to pay an undisputed amount by the due date and does not remedy that failure within 5 Business Days after written notice, the Supplier may suspend the Services, withhold delivery or release of Products, and extend all affected timeframes.

6.11 The Customer must not set off amounts against invoices unless agreed in writing or ordered by a court/tribunal of competent jurisdiction or subject to any non-excludable rights under the Australian Consumer Law.

6.12 The Supplier may apply additional reasonable charges for a delay or variation to the Services. If the Supplier wishes to adjust the Fees, the Supplier must give the Customer at least ten (10) calendar days written notice, specifying the proposed adjustment amount to the Fees, including supporting evidence, as required.

7. Adjustment of Fees

7.1 This clause applies only where the Services continue for more than 6 months or where the Quote states that price adjustment applies.

7.2 Unless the Quote states another breakdown, the Fees are deemed to comprise:

50% labour component (Labour Portion); and
50% non-labour components (Non-Labour Portion).

7.3 The Labour Portion may be adjusted by reference to the greater of:

the percentage change in the applicable hourly rate under MA000010 Manufacturing and Associated Industries and Occupations Award 2020 (Award) for the classification specified in the Quote, as varied from time to time; and
the percentage change in the Supplier’s actual labour rates or standard charge-out rates applicable to the Personnel performing the Services, including applicable loadings, allowances, on-costs, payroll tax, workers compensation premiums, leave entitlements, administration costs, overheads and margins.

7.4 The Non-Labour Portion may be adjusted by reference to the percentage change in the Manufacturing Prices Index published by the Australian Bureau of Statistics, or such other index stated in the Quote.

7.5 The adjusted Fees are calculated as follows:

Adjusted Fees = (Labour Portion × Current Labour Index ÷ Base Labour Index) + (Non-Labour Portion × Current CPI ÷ Base CPI)

7.6 For the purposes of this clause:

Labour Adjustment Factor means 1 plus the greater percentage increase determined under clause 7.3.

Non-Labour Adjustment Factor means the Current Non-Labour Index divided by the Base Non-Labour Index.

Base Non-Labour Index means the relevant index published most recently before the date of the Quote, unless another base date is stated in the Quote.

Current Non-Labour Index means the relevant index published most recently before the effective date of the adjustment.

7.7 The Supplier must give the Customer written notice of any proposed adjustment before the adjustment takes effect.

7.8 Any adjustment applies only to Services performed on and from the effective date stated in the notice.

7.9 The Supplier must not recover the same cost increase twice under both this clause and a Variation Order, to the extent double recovery can reasonably be identified.

7.10 If the Customer disputes an adjustment in good faith, the Customer must pay the undisputed portion, and the dispute must be dealt with under clause 22.

8. Variation Process

8.1 Either Party may propose or request a variation to the Services at any time by giving the other Party written notice setting out full details of the proposed variation.

8.2 Within a reasonable period after receiving a variation request, the receiving Party must give the requesting Party written notice outlining:

the impact of the proposed variation on the scope of the Services;
any proposed changes to the Fees, any delivery or performance timeframes, or any other terms of this Agreement; and
any other information reasonably required to assess the proposed variation.

8.3 No variation to the Services, specifications, delivery requirements, quantities, timing, Fees or other commercial terms is binding unless recorded in a written variation order signed by both Parties or otherwise expressly accepted by the Supplier in writing (Variation Order).

8.4 If a Variation Order increases or decreases the cost of performing the Services, or the time required to do so, the Fees and any applicable timeframes will be adjusted as set out in the relevant Variation Order.

8.5 This clause does not limit the Supplier’s rights to claim additional costs or time extensions under this Agreement in respect of any change in law, or other circumstances beyond the Supplier’s reasonable control.

8.6 If the Customer gives an instruction that the Supplier reasonably considers to be a variation, the Supplier may suspend performance of the affected Services until a Variation Order is agreed.

8.7 If the Supplier proceeds with a variation at the Customer’s written request before the price or time impact is finally agreed, the Customer must pay the Supplier’s reasonable additional costs and allow a reasonable extension of time.

9. Timeframes

9.1 The Supplier will use reasonable endeavours to complete the Services within the Applicable Timeframe after the later of the Supplier receiving the Customer’s acceptance of the Quote or Purchase Order accepted by the Supplier, and the Supplier receiving the Customer Materials in accordance with clause 9.4, or within any other timeframe expressly stated in the Quote (as applicable).

9.2 If no timeframe is stated in the Quote, the following indicative timeframes apply:

standard or routine Services: up to 15 Business Days;
application development, new materials, new components, or comprehensive manufacturing and surface engineering services: up to 60 Business Days; and
supply and installation of equipment: up to 20 weeks.

9.3 Any timeframe stated in this Agreement, a Quote, a Purchase Order or otherwise is an estimate only and is not a guaranteed completion or delivery date unless the Quote expressly states that time is of the essence and identifies a binding completion date. The Supplier will not be in breach of this Agreement solely because the Services are completed after an estimated timeframe, provided the Supplier has complied with clause 9.1 and clause 9.5.

9.4 The Customer must provide the Supplier with clear, complete and accurate instructions and all parts, items, drawings, specifications, standards, tolerances and other information reasonably required to perform the Services (Customer Materials) by the time reasonably requested by the Supplier.

9.5 If performance of the Services is delayed, or likely to be delayed, due to any of the following (Delay Event), the timeframes under clauses 9.1 and 9.2 will be extended by the period of the delay, but only to the extent the Delay Event causes or contributes to the delay:

freight, courier, transport, delivery or collection delays affecting the Components;
unclear, incomplete, inconsistent or changing Customer directions or requirements;
missing, late, incorrect or incomplete Customer Materials; or
any other act or omission of the Customer or its personnel or contractors that reasonably affects the Supplier’s ability to perform the Services.

9.6 The Supplier must, as soon as reasonably practicable after becoming aware of a Delay Event:

notify the Customer of the Delay Event, its likely impact on the timeframe and the steps the Supplier proposes to take; and
take reasonable steps to mitigate the effects of the Delay Event.

9.7 If a Delay Event occurs, the Supplier may suspend performance of the affected Services only to the extent reasonably necessary while the Supplier awaits delivery or collection of Components, clarification, directions or Customer Materials from the Customer, or resolution of the relevant Delay Event. The Supplier must resume performance as soon as reasonably practicable after the Delay Event is rectified.

9.8 If the Supplier reasonably considers a Delay Event materially affects the Services or delivery schedule, the Supplier may propose a revised completion date with reasonable supporting details. The Parties must act reasonably and in good faith to agree the revised completion date.

10. Delivery and Inspection

10.1 Unless expressly stated otherwise, delivery dates set out in the Quote or otherwise agreed in writing between the Parties are an estimate only. Although the Supplier will use commercially reasonable efforts to keep the delivery date stated or agreed:

the Customer will take delivery of the Product whenever it is tendered for Delivery;
late delivery does not entitle the Customer to cancel a Purchase Order or any part of it; and
the Supplier will not be liable for any Loss resulting from a change of the delivery date(s) or late delivery.

10.2 Unless expressly stated otherwise in the Quote, delivery is EXW – Supplier’s premises at 404 Victoria Road, Malaga WA 6090. To the extent of any inconsistency between this clause 10 and the EXW terms, EXW will prevail.

10.3 Under EXW, the Supplier’s delivery obligation is satisfied when the Products are made available for collection at the place specified in the Quote or in clause 10.2.

10.4 If, at the Customer’s request, the Supplier assists with loading freight, delivery, transport booking or export documentation:

the Supplier does so as the Customer’s agent or as an ancillary service only;
delivery and risk are not delayed or altered unless expressly agreed in writing; and
the Customer remains responsible for all freight, transport, insurance, unloading, import/export and related risks, unless the Quote states otherwise.

10.5 The Supplier’s delivery records will be prima facie evidence of Delivery.

10.6 The Customer must inspect the Product as soon as reasonably practicable after Delivery and notify the Supplier in writing of any apparent defect, damage, shortage or non-conformity within 14 days after Delivery.

10.7 If the Customer does not notify the Supplier under clause 10.6, the Products are deemed accepted in respect of defects, damage, shortages or non-conformities that would have been apparent on reasonable inspection. Products otherwise compliant with the applicable specifications are deemed fit for their purpose and accepted by the Customer upon Delivery.

10.8 Clause 10.7 does not limit:

any non-excludable rights under the Australian Consumer Law; or
any claim for a latent defect that could not reasonably have been identified on inspection, provided the Customer notifies the Supplier within a reasonable time after becoming aware of the alleged latent defect.

10.9 If the Supplier accepts that Products do not comply with the Quote or Specifications, the Supplier may, subject to any non-excludable rights under the Australian Consumer Law, at its option:

reperform the relevant Services;
repair or replace the Product;
provide a credit; or
refund the relevant part of the Fee.

10.10 If the Customer is unwilling or unable to take Delivery when the Products are ready, the Supplier may charge reasonable storage, insurance, re-delivery and handling costs for the Products.

11. Cancellations and Returns

11.1 The Customer may request cancellation of all or part of a Purchase Order by written notice.

11.2 Cancellation is effective only if accepted by the Supplier in writing.

11.3 If the Supplier accepts cancellation, the Customer must pay the Supplier:

all Fees for Services performed up to the effective date of cancellation;
all costs incurred or committed by the Supplier before the effective date of cancellation, including materials, Components, subcontractor costs, freight, labour, engineering time, preparation, testing, consumables and non-cancellable commitments;
reasonable demobilisation, administration, handling, storage and rescheduling costs; and
a cancellation charge equal to the Supplier’s reasonable estimate of unrecovered overhead, lost production allocation and administrative cost arising from cancellation, capped at 20% of the cancelled portion of the Purchase Order unless the Supplier can demonstrate a higher actual loss.

11.4 The amounts payable under clause 11.3 must not exceed the amount reasonably necessary to compensate the Supplier for loss, cost or disruption arising from the cancellation.

11.5 Except where required by law, the Customer has no right to return Products or Components for change of mind.

11.6 If the Supplier agrees to accept a return for reasons other than the Supplier’s breach, the Customer must:

obtain written return authorisation;
return the relevant item within 14 days after approval;
return it unused, undamaged and in resaleable condition, where applicable;
pay all return freight, handling, testing, inspection and restocking costs; and
accept any credit less the Supplier’s reasonable costs.

11.7 Nothing in this clause 11 limits any non-excludable rights or remedies under the Australian Consumer Law.

12. Passing of Risk and Title

12.1 Risk of loss, theft or damage to Products passes to the Customer upon Delivery.

12.2 Unless the Quote states otherwise:

where the Products, Customer Materials, Components or other Transported Items are collected by the Customer from the Supplier’s premises, Delivery occurs when the Products or Transported Items are made available for collection at the place specified in the Quote, or if no place is specified, at APEX Perth; and
where the Supplier is responsible for transportation, Delivery occurs when the Products, Customer Materials, Components or other Transported Items are delivered to the delivery location specified in the Quote.

12.3 Where the Supplier is responsible for transportation of Products, Customer Materials, Components or other Transported Items in connection with the Services, risk of loss, theft or damage to those items remains with the Supplier during that transportation until Delivery occurs, except to the extent that the loss, theft or damage is caused or contributed to by:

the Customer’s act of omission;
inaccurate or incomplete instructions, specifications or delivery information provided by the Customer;
inherent defect, condition, fragility or instability of the Customer Materials or Components;
packaging supplied or specified by the Customer;
a Force Majeure Event; or
any other matter outside the Supplier’s control.

12.4 Where the Customer is responsible for collection or transportation, risk passes to the Customer when the relevant Products, Customer Materials, Components or other items are made available for collection by the Customer or the Customer’s carrier.

12.5 Subject to clauses 12.3 and 12.4, risk in any Customer Materials remains with the Customer at all times, except to the extent that any loss or damage is caused or contributed to by the Supplier’s negligence, wilful misconduct or breach of this Agreement.

12.6 Title to the Product does not pass to the Customer until the Supplier has received payment in full (in cleared funds) of all amounts payable in respect of the Product and the Services to which the amounts relate (including any applicable delivery, handling and storage charges).

12.7 Until title passes under clause 12.6:

the Supplier may withhold delivery or release of Products where any amount payable in respect of them remains unpaid; and
the Customer must not create or allow any encumbrance or security interest over the Product.

12.8 Title to the Customer Materials remains with the Customer at all times, subject to:

the Supplier’s right to process, modify, incorporate, test, handle or otherwise deal with the Customer Materials for the purpose of performing the Services;
any lien or other rights the Supplier may have under this Agreement or at law; and
any security interest arising in favour of the Supplier under this Agreement or the PPSA.

12.9 The Supplier has a general and particular lien over all Customer Materials, Components, Products, documents and other property of the Customer in the Supplier’s possession or control for all amounts owing by the Customer to the Supplier.

12.10 The Supplier may retain possession of the property referred to in clause 12.9 until all amounts owing to the Supplier are paid in full.

12.11 If any amount remains unpaid for more than 60 days after the due date, the Supplier may, after giving at least 10 Business Days’ written notice, sell or dispose of the relevant property and apply the proceeds against the amount owing, subject to the PPSA and any applicable law.

13. Warranties

13.1 The Supplier must perform the Services with due care, skill and diligence, and to a standard consistent with good industry practice for laser cladding, welding, hardfacing, machining, engineering and laboratory services.

13.2 The Supplier must use suitably skilled and trained personnel, appropriate equipment and proper supervision.

13.3 The Supplier must perform the Services in compliance with all applicable laws, regulations, codes, and Australian Standards relevant to the Services.

13.4 Where the Customer makes known to the Supplier in writing a particular purpose for which the Services or Products are required, the Supplier is responsible for fitness for that purpose only to the extent:

the Supplier expressly agrees in writing to provide the Services or Products for that purpose;
the Customer has disclosed all operating conditions, loads, environments, tolerances, maintenance history and relevant technical constraints; and
the Products are used, installed, operated, maintained and stored strictly in accordance with any applicable Specifications, recommendations and assumptions.

13.5 The Supplier must use reasonable care and skill to perform the Services so that the Services and Products are reasonably fit for that agreed purpose, subject always to any non-excludable rights or remedies available under the Australian Consumer Law.

13.6 The Customer warrants that:

to the best of the Customer’s knowledge, the Customer Materials are suitable for the Services and are provided in a condition fit for processing, except to the extent the Supplier has inspected and expressly accepted the Customer Materials as suitable;
all Specifications provided by the Customer are accurate, complete and suitable for the Customer’s intended purpose;
the Customer has all rights, licences and consents necessary to provide the Customer Materials and Specifications to the Supplier;
the Supplier’s use of the Customer Materials and Specifications in accordance with this Agreement will not infringe the rights of any third party;
to the best of the Customer’s knowledge, the Customer Materials do not contain hazardous, dangerous, contaminated or regulated substances unless fully disclosed to the Supplier in writing before the Services commence; and
the Customer will comply with all reasonable directions of the Supplier in connection with the Services.

13.7 The Supplier warrants further that:

it holds all required licences and qualifications and is registered for GST in accordance with the GST Law; and
to the extent applicable, it will deal with any Personal Information acquired from the Customer under or in connection with this Agreement in accordance with all Privacy Laws.

13.8 Nothing in this Agreement excludes, restricts or modifies any right, remedy, guarantee, condition or warranty conferred on the Customer by the Competition and Consumer Act 2010 (Cth), including the Australian Consumer Law, to the extent that such right, remedy, guarantee, condition or warranty cannot lawfully be excluded, restricted or modified.

13.9 The Customer’s rights under this Agreement are in addition to, and do not replace or limit, any rights or remedies available under the Australian Consumer Law.

14. Technical Limitations and Exclusions

14.1 The Customer acknowledges that the Services may involve engineering assessment, surface treatment, coatings, modifications, processing, testing, design input, recommendations or other specialist technical work whose performance depends on factors outside the Supplier’s control.

14.2 Except to the extent expressly stated in the Quote, the Supplier does not warrant or guarantee:

any particular durability improvement, service life, performance outcome, cost saving or operational result;
that any proposed modifications, coatings, materials, processes or settings will be suitable for the Customer’s specific application, operating environment or duty cycle; or
the performance, quality or suitability of any third-party goods, consumables, coatings, materials, parts, plant, software or services, except to the extent the Supplier is legally responsible for them.

14.3 To the maximum extent permitted by law, the Supplier is not responsible for defects, damage or non-conformity to the extent caused or contributed to by:

incomplete, inaccurate or late information, data, samples, drawings, specifications, operating parameters, maintenance records or instructions provided by the Customer or any third party;
pre-existing defects, wear, contamination, fatigue, stress, corrosion, micro-cracking, heat damage, distortion or other conditions in Customer Materials or Components;
any change in the Customer’s requirements, equipment condition, operating parameters or environment after the Supplier has relied on information provided;
the Customer’s (or any third party’s) failure to implement the Supplier’s recommendations exactly, or implementation without appropriate competence, supervision, calibration, quality control, inspection, testing, commissioning or validation; and
use of the Services or deliverables for a purpose not reasonably contemplated by the Supplier or beyond any agreed scope, assumptions, limitations or stated operating envelope.

14.4 Nothing in this clause excludes, restricts or modifies any non-excludable right, remedy, guarantee, condition or warranty under the Australian Consumer Law.

15. Indemnity and Liability

15.1 Subject to clauses 15.2 and 15.4, each Party (Indemnifying Party) indemnifies the other Party and its officers, employees, agents or contractors (Indemnified Party) against all Loss suffered or incurred to the extent of:

personal injury, illness or death of any person;
Loss or damage to property or tangible property; or
any Claims by a third party in respect of any matter described in paragraph (a) or (b),

to the extent caused by the Indemnifying Party’s breach of this Agreement, negligence, or wrongful act or omission in connection with this Agreement.

15.2 The indemnity in clause 15.1 is reduced proportionally to the extent the Loss or Claim was caused or contributed to by the Indemnified Party or its Personnel.

15.3 To the maximum extent permitted by law, and subject to clause 15.5, each Party’s aggregate liability arising out of or in connection with this Agreement, including in contract, tort (including negligence), under statute or otherwise, will be limited to:

the total Fees paid or payable to the Supplier; or
$50,000.

15.4 Notwithstanding any other clause, to the maximum extent permitted by law, neither Party is liable for Consequential Loss.

15.5 The liability cap in clause 15.3 does not apply to liability:

for payment of Fees or other amounts payable to the Supplier;
arising from fraud, wilful misconduct or deliberate default;
for personal injury, illness or death;
for infringement or misuse of Intellectual Property;
for breach of confidentiality;
that cannot lawfully be limited; or
under an indemnity to the extent relating to third-party personal injury or tangible property damage.

15.6 Where the Supplier is permitted by law to limit its liability for a failure to comply with a consumer guarantee under the Australian Consumer Law, the Supplier’s liability is limited, at the Supplier’s option:

for goods, to replacement, repair, or payment of the cost of repair; and
for services, to supplying the Services again or payment of the cost of having the Services supplied again.

16. Insurance

16.1 The Supplier must, at its own cost, obtain and maintain with reputable insurers the following insurances required by law for the term of this Agreement:

public and product liability for not less than $10 million per occurrence;
care, custody and control, where commercially available and applicable to Customer Materials, Products or other property in the Supplier’s possession or control;
plant and machinery cover, where the Supplier uses plant, equipment or machinery in performing the Services;
goods in transit insurance, where the Supplier is responsible for arranging or undertaking transport, delivery or transit of Products, Customer Materials or other goods;
workers’ compensation insurance as required by applicable law; and
any insurance required by law.

16.2 The Supplier must ensure that each policy required under clause 16.1 remains current during the Term and must provide certificates of currency to the Customer on reasonable request.

16.3 The Customer must maintain insurance appropriate to the value, nature and risk profile of all Customer Materials, Components and equipment supplied to or made available to the Supplier.

16.4 Unless expressly stated in the Quote, the Supplier is not required to insure Customer Materials, Components or Products for their full replacement value while they are in the Supplier’s possession or control.

16.5 The Customer must notify the Supplier in writing before delivery of any Customer Materials or Components with unusual, high-value, hazardous, regulated, fragile, prototype or irreplaceable characteristics.

17. Intellectual Property

17.1 Each Party retains ownership of all Intellectual Property owned by or licensed to that Party before the Commencement Date or developed independently of this Agreement (Background IP).

17.2 The Customer retains ownership of Customer Materials and Customer Background IP. The Customer grants the Supplier a non-exclusive, royalty-free licence during the Term to use, reproduce and modify the Customer Materials and Specifications solely to the extent necessary to perform the Services and deliver the Products and comply with this Agreement.

17.3 The Supplier retains ownership of:

Supplier Materials;
Supplier Background IP;
methods, processes, know-how, techniques, formulae, tools, templates, systems, procedures, software, firmware, designs, drawings and technical knowledge used by the Supplier;
improvements, developments or refinements to the matters in paragraph (c), whether created before, during or after the Services; and
general engineering knowledge, experience and know-how acquired or applied in performing the Services.

17.4 Subject to payment in full, the Customer owns the physical Products delivered to the Customer.

17.5 Unless the Quote expressly states that ownership is assigned to the Customer, the Supplier retains ownership of all Intellectual Property created by the Supplier in performing the Services.

17.6 Subject to payment in full, the Supplier grants the Customer a non-exclusive, perpetual, royalty-free, non-transferable licence to use the Intellectual Property incorporated in the Products or deliverables solely for the Customer’s internal business purposes and for the intended use of the Products.

17.7 The Customer must not reverse engineer, copy, commercialise, disclose, exploit, sell, license or otherwise deal with Supplier Materials or Supplier Intellectual Property except as expressly permitted under this Agreement.

17.8 The Customer warrants that the Supplier’s use of Customer Materials, Specifications and Customer Background IP in accordance with this Agreement will not infringe any third-party rights.

17.9 The Customer indemnifies the Supplier against any third-party Claim alleging infringement arising from the Supplier’s use of Customer Materials, Specifications or Customer Background IP in accordance with this Agreement, except to the extent caused by the Supplier’s unauthorised use.

18. Confidential Information

18.1 Each Party must keep the other Party’s Confidential Information confidential and must not use it except for the purpose of performing or enforcing this Agreement.

18.2 A Party may disclose Confidential Information:

to its officers, employees, contractors, professional advisers, insurers and financiers who have a need to know and are subject to confidentiality obligations;
with the prior written consent of the disclosing Party;
as required by law, a stock exchange, court, tribunal, regulator or government authority; or
to enforce this Agreement.

18.3 Confidential Information does not include information that:

is or becomes public other than through breach of this Agreement;
was lawfully known to the receiving Party before disclosure;
is lawfully obtained from a third party without breach of confidence; or
is independently developed without use of the disclosing Party’s Confidential Information.

18.4 On request, each Party must return or destroy the other Party’s Confidential Information, except to the extent retention is required by law, professional obligation, insurer requirement, backup archive or legitimate record-keeping requirement.

18.5 This clause survives termination for so long as the information remains confidential.

19. Privacy

19.1 Each Party must comply with all Privacy Laws to the extent applicable to that Party.

19.2 A Party must not collect, use, disclose, store, transfer or otherwise handle Personal Information obtained under or in connection with this Agreement except:

for the purpose of performing this Agreement;
as authorised by the individual;
as required or authorised by law; or
as agreed in writing.

19.3 Each Party must take reasonable steps to protect Personal Information in its possession or control from misuse, interference, loss, unauthorised access, unauthorised modification and unauthorised disclosure.

19.4 Each Party must provide reasonable assistance to the other Party in investigating, containing, remediating and notifying any data breach, including any notification required under Privacy Laws.

20. Force Majeure

20.1 A Party is not liable to the other Party, and is not in breach of this Agreement, for any delay or failure to perform its obligations under this Agreement to the extent that the delay or failure is caused by a Force Majeure Event, provided that the affected Party promptly notifies the other Party and uses reasonable endeavours to mitigate the effects of the Force Majeure Event.

20.2 The Party affected by a Force Majeure Event must:

promptly notify the other Party;
provide reasonable details of the Force Majeure Event and its expected impact; and
use reasonable endeavours to mitigate the effects of the Force Majeure Event.

20.3 A Force Majeure Event does not relieve the Customer of its obligation to pay the Supplier for:

Services performed before the Force Majeure Event;
Products produced, procured or partly completed before the Force Majeure Event; and
reasonable non-recoverable costs and expenses incurred by the Supplier in connection with the Services.

20.4 Either Party may end this Agreement immediately by written notice if the Force Majeure Event continues for more than one (1) month. In such event, the Customer must pay the Supplier for all Services performed up to the date of termination of the Agreement, together with reasonable non-recoverable costs incurred by the Supplier.

20.5 A Force Majeure Event does not relieve a Party from an obligation to pay money due for Services performed, Products supplied or costs incurred before or during the Force Majeure Event.

21. Termination

21.1 Either Party may terminate this Agreement for convenience by giving at least 20 Business Days’ written notice.

21.2 Termination for convenience does not cancel any accepted Purchase Order unless the notice expressly states that the relevant Purchase Order is cancelled and the Supplier accepts that cancellation in writing.

21.3 If a Purchase Order is cancelled or this Agreement is terminated for convenience by the Customer, the Customer must pay all amounts payable under clause 11.

21.4 On termination, for any reason, the Customer must pay to the Supplier:

all Fees for Services performed up to and including the effective date of termination;
all Products completed or partly completed;
all Components, materials, consumables, subcontractor costs, third-party charges ordered, acquired, committed to, or otherwise procured by the Supplier before termination;
all non-cancellable commitments;
all reasonable demobilisation, storage, handling, delivery, return or disposal costs; and
all other amounts payable under this Agreement.

21.5 The Supplier must use reasonable endeavours to mitigate avoidable costs arising after termination.

21.6 To the extent the Customer pays for unused Components, those Components become the Customer’s property when paid for in full, subject to the Supplier’s lien and any security interest.

21.7 Subject to payment in full, the Supplier must, at the Customer’s written election and cost:

make the Components available for collection by the Customer from the Supplier’s premises;
deliver them to the Customer; or
dispose of them and account to the Customer for any net proceeds after disposal costs.

21.8 Subject to any applicable statutory stay, either Party may terminate this Agreement immediately by written notice if:

there is a failure to observe any term of this Agreement and a failure to remedy the breach within fourteen (14) Business Days after receiving a notice specifying the breach and requiring it to be remedied;
either Party commits a material breach of this Agreement which is incapable of rectification;
either Party enters into a deed of arrangement or an order is made for it to be wound up;
an administrator, receiver, receiver/manager or liquidator is appointed to either Party pursuant to the Corporations Act 2001 (Cth); or
either Party would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001 (Cth).

22. Dispute Resolution

22.1 If a dispute arises out of or in connection with this Agreement, a Party may give written notice to the other Party specifying the nature of the dispute.

22.2 Within ten (10) Business Days after a notice under clause 22.1 is given, representatives of the Parties with authority to resolve the dispute must meet in person or by video conference and attempt to resolve the dispute in good faith.

22.3 If the dispute is not resolved within twenty (20) Business Days after the notice under clause 22.1 is given, either Party may refer the dispute to mediation administered by the Resolution Institute, or another mediator agreed by the Parties.

22.4 Unless otherwise agreed, the mediation must be conducted in Perth, Western Australia, or by video conference.

22.5 Each Party must bear its own costs of the mediation and the Parties must share the mediator’s fees equally.

22.6 A Party must not commence court proceedings in relation to a dispute unless it has first complied with this clause 22, except where the Party seeks urgent interlocutory, injunctive or other urgent equitable relief, or where proceedings are required to preserve a limitation period.

22.7 Despite the existence of a dispute, the Customer must continue to pay all undisputed amounts when due.

22.8 The Supplier may suspend performance of the Services if the Customer fails to pay an undisputed amount by its due date and does not remedy that failure within five (5) Business Days after receiving written notice from the Supplier requiring payment. The Supplier must not suspend the Services in respect of an amount that is the subject of a genuine dispute notified under this clause 22, provided the Customer continues to pay all undisputed amounts when due.

22.9 Nothing in this clause prevents the Supplier from commencing proceedings to recover an undisputed debt, or from exercising a right to suspend Services, withhold delivery, enforce a lien or enforce a security interest.

23. Change in Law

23.1 If, after the Commencement Date, a Change in Law materially affects a Party’s cost of, or ability to, perform this Agreement, that Party must promptly notify the other Party and provide reasonable details and supporting evidence. The Parties must then act reasonably and in good faith to agree any necessary change to the price, timing or method of performance to reflect the proven net effect of the Change in Law, taking into account mitigation, avoided costs and any amounts recovered elsewhere.

23.2 If performance of the Agreement becomes unlawful due to a Change in Law, the affected obligation is suspended to the extent of the illegality.

23.3 If the Parties do not reach agreement in accordance with clause 23.1 within twenty (20) Business Days, the matter must be referred to dispute resolution under clause 22. Either Party may terminate this Agreement if the Change in Law has a material adverse effect which continues for more than sixty (60) days.

24. PPSA

24.1 In this clause, “PPSA” means the Personal Property Securities Act 2009 (Cth). Terms used in this clause that are defined in the PPSA have the same meaning.

24.2 The Customer acknowledges that this Agreement creates, or may create, a security interest in favour of the Supplier in:

Products supplied by the Supplier before title passes to the Customer;
Customer Materials, Components, Products and other property in the Supplier’s possession or control, to secure payment of all amounts owing to the Supplier;
proceeds of any Products or other collateral; and
any accession, processed goods, commingled goods or product mass to the extent permitted by the PPSA.

24.3 The Customer grants the Supplier a security interest in the collateral described in clause 24.2 to secure all amounts owing to the Supplier.

24.4 The Customer acknowledges that the Supplier’s security interest may be a purchase money security interest to the extent applicable.

24.5 The Supplier may register any security interest on the Personal Property Securities Register in any manner it considers appropriate.

24.6 The Customer must not create or permit any competing security interest over Products to which title has not passed without the Supplier’s prior written consent.

24.7 To the maximum extent permitted by law, the Customer waives its right to receive any notice, statement or verification statement under the PPSA unless the requirement to give that notice cannot be excluded.

24.8 The Supplier’s rights under this clause are in addition to, and do not limit, any lien, retention of title right, right of withholding delivery or other right under this Agreement or at law.

25. General

25.1 Governing Law

This Agreement is governed by and shall be construed in accordance with the laws of the State of Western Australia. The Parties agree to submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Western Australia and any court having jurisdiction to hear appeals from those courts.

25.2 Counterparts

The Agreement may be executed in counterparts. All counterparts together constitute the Agreement.

25.3 Severability

In the event that any of the provisions of this Agreement are held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of the Agreement.

25.4 Waiver

A default, delay or omission by either Party of any of the provisions of this Agreement will not operate as a waiver of any subsequent breach of the same or other provisions.

25.5 Notices

A notice under this Agreement must be in writing and delivered by hand, prepaid post or email to the address or email address stated in Schedule 1 or otherwise notified in writing:

if delivered by hand, on delivery;
if sent by prepaid post within Australia, on the third Business Day after posting;
if sent by email, at the time the email leaves the sender’s information system, unless the sender receives an automated delivery failure notification.

25.6 Variation to Agreement

Any variations to the Agreement must be in writing and signed by the Parties.

25.7 Assignment

Neither Party may assign, delegate or otherwise transfer its obligations under this Agreement without the prior written consent of the other Party, which will not be unreasonably withheld.

25.8 Entire Agreement

This Agreement constitutes the entire agreement between the Parties in relation to its subject matter, and supersedes all previous agreements and understandings between the Parties in relation to its subject matter.

26. Definitions and Interpretation

26.1 Within this Agreement the following definitions apply:

Agreement means the agreement between the Supplier and the Customer and shall consist of the following documents:

any written variation signed by both Parties;
these Terms and Conditions;
Schedule 1;
the Quote; and
any Purchase Order accepted by the Supplier, but only to the extent permitted by clauses 2 and 3.

Applicable Timeframe means the estimated timeframe for completion of the Services stated on the Quote.

Business Day means a day other than a Saturday, Sunday or public holiday in Western Australia.

Change in Law means, after the Commencement Date:

the enactment, amendment, repeal, replacement or change in interpretation or application of any applicable law or any legally binding requirement of a government agency;
the introduction, amendment or expansion of any legally binding sanction, embargo, tariff, duty, levy, licence requirement, customs requirement, import or export control, shipping or port restriction, transport measure, or mandatory fuel cost recovery requirement, which materially affects a Party’s cost of, or ability to, perform its obligations under this Agreement.

Claim means any claim, liability, Loss, damage, demand, lien, cause of action of any kind, obligation, costs, royalty, fees, assessments, penalties, fines, judgment, interest and award, whether arising by law, contract, tort, voluntary settlement or otherwise.

Commencement Date means the date in Schedule 1.

Components means all parts, modules, items, equipment, products, software, firmware and other deliverables (and any replacements, updates, upgrades or modifications to them) that are supplied, incorporated, used, installed or otherwise provided in connection with the Services under the Agreement.

Confidential Information means any information, whether or not marked as confidential, received, held or developed by the Supplier or the Customer and which is not publicly available and relates in any manner to the operations of the Customer or the Supplier or their clients or suppliers.

Consequential Loss means, subject to any applicable law, any indirect, special, remote or consequential loss, and any loss of profit, revenue, contract, production, use, business opportunity, anticipated savings, goodwill or reputation, whether arising in contract, tort including negligence, statute, equity or otherwise. Consequential Loss does not include direct loss, direct rectification costs or direct costs of repairing or replacing damaged tangible property, except to the extent those losses are expressly excluded elsewhere in this Agreement.

Customer Materials means parts, items, drawings, specifications, standards, tolerances and other information reasonably required to perform the Services provided by the Customer.

Delivery means the time at which delivery is taken to have occurred.

Delivery Place means the Supplier’s premises at 404 Victoria Road, Malaga WA 6090, unless another place is stated in the Quote.

Expiry Date means the date the Services will cease to be performed as stated in Schedule 1.

EXW means the Incoterm 2020 Ex Works.

Fee means the amount charged by the Supplier to the Customer for the Services as contained in the Quote.

Force Majeure Event means an event or circumstance beyond a Party’s reasonable control that prevents or materially delays performance of an obligation, including natural disaster, storm, cyclone, flood, fire, earthquake, pandemic, epidemic, war, terrorism, civil unrest, industrial action, labour shortage, transport disruption, port delay, supply chain disruption, power failure, cyber incident, government restriction, embargo, sanctions, shortage of materials, shortage of utilities or failure of a third-party supplier, provided the affected Party could not reasonably have avoided or overcome the event.

GST means a goods and services tax, or similar value added tax, levied or imposed under the GST Law.

GST Law has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Incoterms means the globally recognised trade rules published by the International Chamber of Commerce.

Intellectual Property means all intellectual property rights existing anywhere in the world, including any patent, design right, copyright, trademark, trade secret, Confidential Information, business and company names or other rights whether existing under statute, at common law, in equity or otherwise, and all rights in any applications for or registrations of the rights described.

Legal Requirements means any Australian statute, ordinance, regulation or by-law, orders, awards, commission and proclamations of the Commonwealth and/or the State of Western Australia, and includes certificates, licences, consent, permits, approvals and requirements of organisations having jurisdiction applicable to the Services, standards, codes and guidelines applicable to the Services, including any fees or charges payable in connection.

Loss means any loss, damage, liability, interest, Claim, expense, outgoing, penalty, fine or cost of any kind.

Personal Information has the same meaning as provided under the Privacy Laws.

Personnel means, in relation to a Party, that Party’s officers, employees, agents, contractors, subcontractors, consultants and representatives.

Privacy Laws means the Privacy Act 1988 (Cth), the Australian Privacy Principles, the Notifiable Data Breaches scheme, and any other privacy, data protection or responsible information sharing law applicable to the relevant Party or the relevant Personal Information.

Products means any physical goods, treated items, processed items, modified Components, coatings, consumables, parts, deliverables, reports, drawings, designs, engineering outputs or other work product supplied or made available by the Supplier as a result of performing the Services.

Purchase Order means any document, including purchase orders, or act whereby the Customer agrees to purchase Services from the Supplier on the terms of the Quote or this Agreement.

Quote means a written quotation, proposal, scope, estimate or offer issued by the Supplier for the Services or Products.

Review Date means each date occurring at intervals of 6 months after the Commencement Date (including the date that is 6 months after the Commencement Date).

Services means those services defined in the Quote to which these Terms and Conditions are annexed.

Specifications means the specifications, drawings, samples, standards, quantities, artwork, tolerances and other requirements for the Services or Products agreed in writing, including in the Quote.

Supplier Materials means all materials, information and items that are owned by, licensed to, or otherwise made available by the Supplier and that are used, provided or made accessible in connection with the Supplier’s Services under this Agreement.

Tax Invoice has the meaning given in the GST Law.

Term means, subject to clause 21, the term outlined in clause 4.

Transported Items means Products, Customer Materials, Components and any other goods, equipment, materials, parts, documents or property transported by or on behalf of the Supplier in connection with the Services.

Variation Order means a written document signed or expressly accepted in writing by both Parties that varies the Services, Specifications, Fees, delivery requirements, timing or other terms.

26.2 Within this Agreement:

headings are for convenience only and do not affect the interpretation of this Agreement;
words denoting the singular number include the plural and vice versa; and
no rule of construction applies to the disadvantage of a Party because that Party was responsible for the preparation of this document or any part of it.