Terms & Conditions

1 Definitions and Interpretation

1.1 Definitions

In this Agreement unless inconsistent with the context or subject matter:

(a) “ACL” means the Australian Consumer Law (as set out in Schedule 2 to the Competition and Consumer Act 2010 (Cth));

(b) "Agreement" means this Manufacturing and Supply Agreement;

(c) “Applicable Laws” means all local, regional, national and international laws, rules, regulations, administrative standards and orders including those imposed by any governmental or regulatory authority and any local regulatory requirements, and all applicable industry standards which apply from time to time to the supply or use of the Units;

(d) "Claim" means any claim, action, demand or proceeding however arising (including under contract, statute, common law or equity) in respect of any Loss or alleged Loss;

(e) "Customer" means the individual or entity identified as Customer in the Scope of Works;

(f) “Commencement Date” means the date set out in the Scope of Works;

(g) “Confidential Information” of a party means all information in any form (for the purposes of clause 17 and this definition this includes relevantly for the Discloser):

(i) all information relating to or used by the Discloser or any of its related bodies corporate, including know-how, trade secrets, ideas, marketing strategies and operational information;

(ii) all information concerning the business affairs (including products, services, customers and suppliers) or property of the Discloser or any of its related bodies corporate, including any business, property or transaction in which the Discloser or any of its related bodies corporate may be or may have been concerned or interested; and

(iii) any other information disclosed by or on behalf of the Discloser or any of its related bodies corporate which, by its nature or by the circumstances of its disclosure, is or could reasonably be expected to be regarded as confidential; and

(iv) includes this Agreement;

but does not include information that:

(v) is or becomes independently developed or known by the other party through no breach of this Agreement by that party; or

(vi) becomes publicly available without breach of this Agreement;

(h) “Delivery Date” means the date for delivery of the Units as specified in the Scope of Works;

(i) “Delivery Point” means the address for delivery of the Units as specified in the Scope of Works;

(j) "Force Majeure" means an act, omission or circumstance over which the Supplier could not reasonably have exercised control;

(k) "GST" has the meaning given to it in the GST Act;

(l) "GST Act" means the A New Tax System (Units and Services Tax) Act 1999 (Cth);

(m) “Intellectual Property Rights” means all present and future rights conferred by law in or in relation to copyright, trade marks, designs, patents, circuit layouts, plant varieties, business and domain names, inventions and confidential information, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields whether or not registrable, registered or patentable.

These rights include without limitation:

(i) all rights in all applications to register those rights;

(ii) all renewals and extensions of those rights; and

(iii) all rights in the nature of those rights, such as moral rights;

(n) "Loss" includes (without limitation) the following, whether direct or indirect, special or consequential in nature:

(i) loss, damage, costs (including legal costs on a solicitor and own client basis), action or expense of any kind; and

(ii) to the extent not covered in the preceding subclause, loss of profits, opportunity, use, revenue, goodwill, bargain, production, sales turnover, income, reputation (or damage to it), employment, corruption or destruction of data, customers, loss relating to or in connection with any other contract, business or anticipated savings, reduction in value, any delay or financing costs or increase in operating costs, or any other financial or economic loss; and

(iii) anything referred to in the preceding subclauses relating to or arising out of or in connection with:-

(A) personal injury (including death or disease) to the Customer;

(B) personal injury (including death or disease) to any third party; or

(D) a breach or non-compliance by the Supplier or the Customer with any law;

(o) "PPSA" means the Personal Property Securities Act 2009 (Cth) and its regulations as amended and in force from time to time;

(p) "PPS Register" means the Personal Property Securities Register established under the PPSA;

(q) “Price” means the price payable by the Customer in consideration for the supply of the Units in accordance with clause 2;

(r) “Units” means those units as specified in the Scope of Works and any other products supplied by the Supplier to the Customer from time to time;

(s) “Related Entity” has the meaning given to it in section 9 of the Corporations Act 2001 (Cth);

(t) “Scope of Works” means the Scope of Works attached to this Agreement and any other Scope of Works entered into by the parties from time to time;

(u) “Specifications” means the specifications relating to the Units, as set out in this Agreement and the Scope of Works;

(v) "Supplier" means the AOF Solutions Pty Ltd T/As Wotbox ABN 33 676 171 752;

(w) "Tax Invoice" has the same meaning as in the GST Act;

(x) “Term” means the term of this Agreement commencing and expiring in accordance with clause 2.4.

1.2 In this Agreement unless inconsistent with the context or subject matter:

(a) A reference to a person includes any other legal entity and vice versa;

(b) Words importing the singular number include the plural number and vice versa;

(d) Clause headings are for reference purposes only and must not be used in interpretation;

(e) Where any word or phrase is given a defined meaning any other part of speech or other grammatical form concerning the word or phrase has a corresponding meaning;

(f) A reference to a statute includes all regulations and subordinate legislation and amendments;

(g) References to writing include any mode of representing or reproducing words in tangible and permanently visible form, and includes e-mail;

(h) A reference to a monetary amount is a reference to an Australian currency amount;

(i) An obligation of two or more parties binds them jointly and each of them severally;

(j) An obligation incurred in favour of two or more parties is enforceable by them severally;

(k) Reference to time are to local time in New South Wales;

(l) Where time is to be reckoned from a day or event, the day or event must be excluded, and reference to a month means a calendar month;

(m) A reference to a business day means any day on which trading banks are open for business in New South Wales; and

(n) If any time period specified in this Agreement expires on a day which is not a business day, the period shall expire at the end of the next business day.

2 Manufacture and Supply of Units

2.1 The Supplier agrees to manufacture and supply and the Customer agrees to purchase the Units in accordance with Scope of Works on the terms and conditions contained in this Agreement.

2.2 The Units will be built, designed and customised in accordance with the Scope of Works.

2.3 The Supplier will purchase the materials for the manufacture of the Units as soon as is practicable after execution of the Scope of Works. Given this, once the Scope of Works has been executed by both parties, then unless otherwise agreed by the Supplier in writing the Scope of Works is not able to be cancelled.

2.4 This Agreement begins on the Commencement Date and will continue unless and until it is terminated in accordance with its terms.

3 Payment and Invoicing

3.1 The Customer agrees to pay the Price for the Units as specified in the Scope of Works.

3.2 Payment of the Price is due to the Supplier in the manner and in accordance with the terms as specified in the Scope of Works. If the Scope of Works requires an upfront payment or deposit then the Customer must make such payment upfront as this enables the Supplier to purchase materials used in the manufacture of the Units. The Customer acknowledges and agrees that where an upfront payment is required the Supplier will not commence manufacture of the Units until such upfront payment is paid.

3.3 The Supplier will provide a Tax Invoice to the Customer for all amounts payable by the Customer.

3.4 Without prejudice to its other rights and remedies, the Supplier may set-off and deduct from the sums due to the Customer pursuant to any agreement any sums (whether liquidated or not) owed by the Customer to it, irrespective of whether the liability to pay those sums arose under or in connection with the Agreement.

3.5 The Customer will also pay to Supplier, on demand, on a full indemnity basis, all amounts that the Supplier may, at its absolute discretion, expend or incur (including legal costs on a solicitor and own client basis) as a result of the Customer defaulting on any of the terms of this Agreement.

3.6 If payment is not made in accordance with the terms of this Agreement, the Supplier at its entire discretion may:

(a) require the Customer to pay the Supplier interest on all outstanding monies from the due date until the date of payment at the rate of 12% per annum accruing daily;

(b) refuse to manufacture and/or supply any part of the Units to the Customer until all outstanding monies, including any accrued interest, is paid in full;

(d) terminate this Agreement whereupon the full price for the Units then supplied, whether or not the time for payment under this Agreement has arrived, will be immediately due and payable.

3.7 The Customer may not withhold payment or make any deduction from any amount owing without the Supplier’s prior written consent, irrespective of any claim the Customer may have against the Supplier for anything or matter whether related to the provision of the Units or not.

3.8 All amounts owed to the Supplier by the Customer under this Agreement become immediately due and payable on termination of this Agreement for any reason, or if the Customer becomes subject to an insolvency event.

3.9 Due to the nature of the manufacture of the Units, being by ad hoc design, to the extent permitted by law there are no refunds of any fees or charges paid under this Agreement.

4 Variations

4.1 The scope of the manufacture and design of the Units (including the materials and finishes) is as specified in the Scope of Works.

4.2 Should the Customer require amendments to the Scope of Works, then the Customer may request the Supplier provide such amendments, and the Supplier may accept or reject such request at its sole discretion. If the Supplier accepts such request then the Supplier will provide an additional quote (with additional fees required to be paid as advised by the Supplier) and if accepted by the Customer, an invoice will be issued to accommodate these scope changes.

4.3 If the Supplier determines that additional materials are required to be carried out, then Supplier will make all reasonable attempts to contact the Customer and stop all work associated until further instructions are provided by the Customer. The Customer is solely liable for the payment of any additional materials outside of the scope specified in the Scope of Works.

5 Customer Obligations

5.1 The Customer must promptly provide the Supplier with:

(a) all artwork or assets for any associated branding or signage;

(b) delivery of approved Customer Property (including appliances) to the Supplier workshop for dry fit and testing prior to Unit delivery (any amendments outside of scope are the responsibility and cost of the Customer as specified under clause 4);

(c) all documentation, information and assistance reasonably required by the Supplier to design and manufacture the Units. Any delays may delay the provision of the manufacture of the Units and may incur additional charges. Where the Customer fails to supply this information to the Supplier, and that prevents the progress of the manufacturing of the Units beyond a period of three months, the Customer remains liable for all fees.

5.2 The Customer will purchase and install all appliances, and provide provision of sizing and power specifications to the Supplier. The Customer is responsible for arranging and paying the costs of any trade installation required for connection to local services on the Supplier’s site.

5.3 The Customer will:

(a) investigate the requirements of the local council and provide those to the Supplier. Although the Customer provides this information to the Supplier, the Customer remains solely responsible and liable for ensuing compliance with all regulations regarding local DA and authorities;

(b) ensure that all BCA and Food Safety codes are complied with including certification where required;

5.4 The Customer agrees that it will not by receiving or requesting the Units:

(a) breach any Applicable Laws, rules and regulations (including any applicable privacy laws); or

(b) infringe the Intellectual Property Rights or other rights of any third party or breach any duty of confidentiality.

6 GST

6.1 Words used in clause 6 but not defined in this Agreement have the same meaning as in the GST Law.

6.2 Unless otherwise expressly stated in this Agreement, all amounts payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

7 Delivery

7.1 Unless otherwise agreed, the Supplier will deliver the Units to the Delivery Point on the Delivery Date. Delivery of the Units is completed upon the Units being delivered to the Delivery Point.

7.2 The Customer must pay all delivery costs associated with the delivery of the Units to the Delivery Point at the same time as the other fees are payable under this Agreement or at other times requested by the Supplier. The cost for delivery and logistics stated on the Scope of Works is indicative only based on location of delivery and may increase upon full scope. Estimates for delivery pricing provided by the Supplier are an estimate only, and are subject to change without notice. A change in the delivery costs does not entitle the Customer to dispute payment of such costs. Delivery of the Units to a third party nominated by the Customer is deemed to be delivery to the Customer for the purposes of this Agreement.

7.3 Should the Customer require any further additions to the scope, the Supplier will inform the Customer of any additional time required to finalise the customisation and the parties will agree on a new delivery date.

7.4 Any timelines provided by the Supplier to the Customer in respect of the delivery or completion of the Units are estimates only and are non-binding on the Supplier. Due to the nature of the Units being ad hoc designed and manufactured, including the reliance on third parties and the Customer to meet deadlines, the Supplier cannot and is unable to guarantee any timelines for delivery or completion of the Units. Whilst the Supplier attempts to deliver the Units on time, sometimes delays are inevitable and the Supplier will not be responsible for any Losses suffered by the Customer in the event of delay. Late delivery of the Units does not entitle the Customer to:

(a) refuse to take delivery of the Units;

(b) claim damages; or

7.5 If the Customer fails to take delivery of the Units on the date for delivery the Supplier will store the Units at the risk of the Customer until delivery takes place again, and may charge the Customer for all related costs and expenses (including insurance).

8 Access

8.1 The Customer grants (or must procure the grant to) the Supplier and its agents, employees, contractors, service providers and any other nominees an irrevocable licence to occupy the working area of the Delivery Point for the purpose of delivery of the Units, as well as a licence to pass through any other areas as required for the delivery.

8.2 In delivering the Units to the Customer, the Supplier will take every reasonable precaution however, will not be liable in respect of:

(a) the structural integrity of the Customer's premises;

(b) the premises' ability to carry the weight of any Units;

(d) any damage to the premises including damage to walls, internal or external flooring, ceiling, appliances or any items on the premises which is not directly due to the Supplier's negligence or breach of this Agreement.

9 Unit Limited Warranty

9.1 The Supplier undertakes, warrants and represents that the Units for a limited period of 6 months from the Delivery Date (unless otherwise dictated by statutory rights required by relevant consumer law):

(a) will comply with the requirements of the Agreement and the Specifications and with all relevant laws, rules, and regulations which apply to the Specifications of the Units;

(b) will be of merchantable quality; and

9.2 The Supplier must store and transport all Units pending delivery in accordance with any requirements in the Agreement and all relevant laws, rules, regulations and standards (legal and self-regulatory) and otherwise in suitable conditions necessary to maintain their quality and security at all times prior to delivery. Where the Customer arranges for the transport and logistics of the Unit, the Customer takes sole responsibility of such, and the Supplier expressly excludes all warranties with respect to any defect or damage that occurs as a result of the transport and logistics arranged by the Customer.

9.3 Other than those expressly set out in this Agreement, and to the maximum extent permitted by law, the Supplier excludes all rights, representations, guarantees, conditions, warranties, undertaking, remedies or other terms in relation to the Units.

9.4 The Customer acknowledges and agrees that the Customer must obtain and is solely responsible to obtain all certificates, consents and approvals required for the Customer’s use of the Units. The Customer is solely responsible for ensuring that the Units are suitable or adequate for its purposes. The Customer acknowledges that prior to execution it has satisfied itself by independent investigation as to the suitability of the Units for its purposes and as to the requirements of any applicable legislation or any relevant government authority. To the fullest extent permitted by law all warranties as to suitability and as to adequacy otherwise applicable are expressly negatived. The Supplier does not provide any engineer certification for location specific use of the Units.

9.5 The Customer uses the Units at its own risk. All of the Customer’s fittings, plant and equipment (“Customer Property”) which may be used in the Units or outside the Units but used in conjunction with the Units are the sole risk of the Customer. The Supplier is not responsible for any loss or damage to any Customer Property in any regard including where the Customer requests the Supplier incorporate or install such Customer Property in the Units. The Customer is solely liable to pay all costs in respect of the installation for any Customer Property in the Units.

9.6 Without limitation to the generality of clause 9.3, the Supplier expressly excludes all warranties with respect to:

(a) the use of the Units being suitable or adequate for any of the purposes of the Customer;

(b) the suitability of the Units for use at a location;

(c) the Customer Property (such warranty claims are to go through the relevant Customer Property supplier and not the Supplier);

(d) the Units during transport and logistics arranged by the Customer.

9.7 In order to claim pursuant to this warranty in the period of 6 months from the Delivery Date, the Customer must comply with the terms of clause 11. Further exclusions of this limited warranty are also contained in clause 11.

9.8 This limited express warranty is in addition to any rights the Customer may have under the ACL.

9.9 If the Client is a ‘consumer’ within the meaning of the ACL, then for the Units:

Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.

10 Damages

10.1 In the event of any damages to the Units, the Customer must immediately notify the Supplier.

10.2 The Customer must not attempt to fix such damaged Units without the consent of the Supplier.

11 Acceptance and Defective Units

11.1 The Customer must inspect all Units immediately on receipt of the Units and before use.

11.2 The Customer may reject as defective any Units delivered to it that do not comply with clause 9 provided that the Customer gives notice of rejection:

(a) in the case of a defect that is apparent on normal visual inspection within the earlier of 1 business day of receipt or before the Units are used of any defective Units; or

(b) in the case of a latent defect, within a reasonable time of the latent defect having become apparent and within the warranty period, being 6 months from the Delivery Date.

11.3 Upon such notification of defective Units, the Customer must:

(a) provide any photographic evidence requested by the Supplier; and

(b) allow the Supplier to inspect the Units to determine whether they are defective (this includes granting the Supplier unimpeded access to inspect such Units).

11.4 If the Customer is aware or ought reasonably to be aware that the Units are defective for any reason, then the Customer must take all necessary steps to mitigate any loss or damage.

11.5 If the Supplier is notified of a defective Unit and agrees it is defective (acting reasonably) then the Supplier will at its election either:

(a) repair the defective Units and return the Units to the Customer; or

(b) provide a partial refund or credit note in return for the Customer accepting the defective Units;

unless a full refund is required by law.

11.6 Subject to the terms of this clause, Units will only be dealt with in accordance with this clause provided that:

(a) the Customer has complied with the other terms of this clause;

(b) the Supplier has agreed (in its reasonable opinion) that the Units are defective;

(d) the returned Units are accompanied by all original delivery documentation.

11.7 Notwithstanding the above clauses, the Supplier will not be liable for or required to accept any return for any defect or damage where such defect or damage is caused or party caused by or arises as a result of:

(a) the Customer’s acts or omissions, including the Customer failing to take reasonable steps to prevent them from becoming defective or the Customer failing to follow the Supplier’s instructions or best industry practice;

(b) the Supplier following any drawing, design or Specification supplied by the Customer;

(d) wilful damage, negligence, or abnormal storage or working conditions;

(e) fair wear and tear; or

(f) any accident or circumstance outside the reasonable control of the Supplier.

12 Unit Liability

12.1 If any claim is made against the Customer arising out of or in connection with the manufacture of, supply of or any defect in the Units, the Customer must release and indemnify the Supplier against all costs, damages or claims to the extent that the costs, damages or claims is due to any defect in the Specifications, or any act or omission of the Customer, For the avoidance of doubt, the Supplier will only be liable to the extent that such costs, damages or claims are attributable to the Supplier.

12.2 The Customer must notify the Supplier as soon as practicable after becoming aware of the claim, and take all action reasonably requested by the Supplier to avoid, compromise or defend the claim and any proceedings in respect of the claim, subject to the Customer being indemnified and secured to its reasonable satisfaction against all costs and expenses which may be incurred in doing so.

13 Insurance

13.1 From the date of delivery of the Units (or the earlier collection) the Customer must maintain in force the following insurance policies with reputable insurance companies:

(a) public and product liability insurance with a limit of at least $20,000,000 per occurrence; and

(b) workers’ compensation insurance in accordance with all applicable State and Territory legislation.

13.2 If the Supplier requests, the Customer must promptly send to the Supplier a copy of the certificate of currency for each insurance policy held by the Customer and details of the cover provided.

13.3 The Customer must immediately notify the Supplier if any policy is (or will be) cancelled or its terms are (or will be) subject to material change.

14 Ownership, risk and assignment

14.1 Notwithstanding anything to the contrary express or implied in this Agreement, the parties agree that the Supplier retains full title to the Units and title will not at any time pass to the Customer until the Price for the Units and all other amounts owing in respect of the Units are paid to the Supplier in full in cleared funds notwithstanding:

(a) the delivery of the Units to/by the Customer (as the case may be); and/or

(b) the possession and use of the Units by the Customer.

14.2 The risk of loss of, or damage to the Units passes to the Customer on delivery of the Units to the Customer or its nominated agent (irrespective of whether the Supplier retains ownership of the Units).

14.3 Prior to ownership passing to the Customer, the Customer acknowledges and agrees that:

(a) it will not agree, attempt, offer or purport to sell, assign, sub-let, lend, pledge, mortgage, let, hire or otherwise part or attempt to part with personal possession of or otherwise deal with the Units without the express written consent of the Supplier;

(b) it will, if requested by the Supplier, return the Units to the Supplier following non-fulfilment of any obligation of the Customer (including payment of monies) without limiting any other right the Supplier may have;

(c) it will deliver up the Units to the Supplier upon demand by the Supplier and give the Supplier or its agents or authorised representatives the right to enter any premises occupied by the Customer and any premises where it believes any Units may be stored (without liability for trespass or any resulting damage) and to use the name of the Customer and to act on its behalf, if necessary, to recover possession of the Units and agrees to indemnify the Supplier and its agents and/or authorised representatives from any damage, injury and/or loss arising from such recovery or attempted recovery of the Units from the Customer's possession or control;

(d) it holds the proceeds, book debts and accounts receivable arising from selling or hiring of the Units on trust for and as agent for the Supplier immediately when they are receivable or are received; and

(e) the Supplier may recover as a debt due and immediately payable by the Customer all amounts owing by the Customer to the Supplier in any respect even though title to the Units has not passed to the Customer.

15 Personal Property Securities

15.1 Application

Until such time as the Units are paid for in full in cleared funds, this clause shall apply to the manufacture and supply of Units.

15.2 Personal Property Securities

(a) The Customer acknowledges and agrees that notwithstanding any other provision of this Agreement:

(i) the PPSA applies to any supply of Units by the Supplier to the Customer;

(ii) the Units are used by the Customer only for commercial purposes and are not used by the Customer for personal, domestic or household purposes;

(iii) by agreeing to and/or accepting or adopting this Agreement the Customer grants to the Supplier:

(A) a purchase money security interest in the Units (on the basis that the Units are sold on retention of title terms); and

(B) a security interest over all present and after-acquired property of the Customer (for purposes of this clause 14 "Customer's Property"),

to secure the Supplier's interest in the Units and all moneys owing or payable by the Customer under this Agreement and any other moneys payable by the Customer to the Supplier from time to time on any account whatsoever.

(iv) if a purchase money security interest is not able to be claimed by the Supplier in respect of the Units for any reason, the Supplier will have a security interest in the Units;

(v) the Customer agrees that the Supplier's security interest in Units and the Customer's property covered by this Agreement may be registered on the PPS Register and the Customer agrees to do all things necessary and required by the Supplier to effect registration of the Supplier's security interest on the PPS Register in order to give the Supplier's security interest the best priority possible and anything else the Supplier requests the Customer to do in connection with the PPSA without delay;

(vi) the Customer warrants that all information provided by the Customer to the Supplier, including but not limited to the Customer's details, including the entity, name, ACN or ABN and address set out in the Scope of Works is correct in all respects and must not change its name, address or other details set out in the Scope of Works without providing the Supplier with at least 20 business days prior written notice;

(vii) the Customer unconditionally and irrevocably appoints the Supplier as its attorney to do any of acts and matters set out in this clause 10 in the event that the Customer fails, delays or declines to execute such documents or do such acts;

(viii) the Customer agrees that it will not grant a security interest or other encumbrance in the Units whether under the PPSA or any other law to a third party unless it has obtained the prior written consent of the Supplier, which the Supplier may refuse to provide or grant in its absolute and unfettered discretion. the Supplier may request and the Customer must provide any information that the Supplier requires, acting reasonably, in order to fully consider whether to grant its consent;

(ix) the Supplier's security interest in the Units, and the Customer's Property extends to any proceeds in all present and after acquired property including without limitation book debts and accounts receivable arising from the selling or hiring of the Units, and/or the Customer's Property by the Customer;

(x) it has received value as at the date of first delivery of the Units and has not agreed to postpone the time for attachment of the security interest (as defined in the PPSA) granted to the Supplier under this Agreement;

(xi) the Units are located in Australia at the date of the supply of the Units and the Customer warrants that the Units will remain located in Australia for the duration of the Agreement;

(xii) neither the Supplier or the Customer will disclose any information to any interested person unless required to do so under the PPSA;

(xiii) the Customer waives its right under the PPSA:

(A) to receive a copy of any verification statement, financing change statement, or any notice that the Supplier intends to sell the Units and/or the Customer's Property or to retain the Units and/or the Customer's Property on enforcement of the security interest granted to the Supplier under this Agreement or any other notice under the PPSA unless the notice is required to be given by the PPSA and cannot be contracted out of;

(B) to object to a proposal by the Supplier to dispose of or purchase or retain the Units and/or the Customer's Property in satisfaction of any obligation owed by the Customer to the Supplier;

(D) to redeem the Units and/or the Customer's Property;

(xiv) will not give (or allow any person to give) to the Supplier a written demand requiring the Supplier to register a financing change statement under the PPSA or enter into (or allow any other person to enter into) the PPS Register a financing change statement under the PPSA; and

(xv) a default under any other security agreement under which it has granted a security interest to any other party in respect of the Units is deemed to be a breach of this Agreement.

The parties agree that the Supplier is not required to respond to a request made under Section 275 of the PPSA and that neither party will disclose information of the kind set out in Section 275(1) of the PPSA.

15.3 Further Supplies

The parties acknowledge and agree that any supply of Units of any kind by the Supplier to the Customer which is not specifically set out in the Scope of Works but for which the Supplier has or later issues a Tax Invoice or any other documentation to the Customer is deemed to form part of the Agreement and is subject to the terms of the Agreement.

15.4 Enforcement

(a) The enforcement provisions contained in this Agreement are in addition to any rights available to the Supplier under the PPSA and apply to the maximum extent permitted by law.

(b) Without limitation to clause 10.4(a) and any other provision of this Agreement section 125, 129(2), 142 and 143 of the PPSA are contracted out of.

15.5 Power of Attorney

The Customer irrevocably nominates constitutes and appoints the Supplier and/or its officers and/or its nominees severally to be the true and lawful attorneys of the Customer on behalf of and in the name of the Customer to do all things necessary and sign all such documents as may be necessary to deal with the Units in accordance with the enforcement provisions of this Agreement, the PPSA or otherwise, if the Customer is in default of this Agreement.

15.6 Interpretation

A term used in this clause 14 is taken to have the meaning defined under the PPSA.

16 Warranties

16.1 The warranties contained in clause 15.2 are additional to warranties implied by law. Each of the warranties will be read and construed as a separate and independent warranty and will not be limited by reference to each other. All warranties will be valid at all times during the term of the Agreement and will be continuing warranties which will survive the termination or expiration of this Agreement.

16.2 The Customer warrants to the Supplier that as at the date of this Agreement and for the duration of this Agreement:

(a) the information contained in this Agreement is true and correct and it has disclosed all relevant information to the Supplier;

(b) it has the legal right and power to enter into this Agreement;

(c) the execution, delivery and performance of this Agreement by the Customer has been duly and validly authorised by all necessary corporate action on its part;

(d) this Agreement is a valid and binding Agreement on the Customer, enforceable in accordance with its terms;

(e) the Customer is not bankrupt or insolvent and no receiver, liquidator, administrator or receiver and manager has been appointed over any part of its assets and no such appointment has been threatened;

(f) and no proceedings have been brought or threatened for the purpose of bankrupting or winding up the Customer;

(g) no partner, director or shareholder of the Customer is bankrupt, a discharged bankrupt or in any form of receivership, administration or liquidation; and

(h) it has the capacity to make the payment in accordance with this Agreement.

17 Intellectual Property

17.1 Pre-Existing IP

(a) Each party acknowledges that the Intellectual Property Rights of any materials developed by a party prior to the Commencement Date or that is created independently of this Agreement (together the "Pre-existing IP Rights") remain the sole property of the owner. Ownership of Pre-existing IP Rights remains unchanged by this Agreement, other than as expressly set out in this Agreement.

(b) The Customer grants the Supplier a worldwide, non-exclusive, royalty free, non-transferable licence to use the Pre-existing IP Rights owned by it for the sole purpose of the manufacture and supply of the Units.

17.2 Customer Materials

(a) The Supplier acknowledges that ownership of all “Customer Materials” (being all works, designs or materials supplied by (or on behalf of) the Customer for use in relation to (or incorporation into) the manufacture and supply of Units, shall remain vested in the Customer and/or its licensors (as the case may be).

(b) The Customer warrants that such Customer Materials:

(i) will not breach any third party rights (including any third party Intellectual Property Rights);

(ii) will not, when used by the Supplier, cause the Supplier to be liable to any third party (including for any payments of royalties).

17.3 Supplier IP

(a) The Customer acknowledges that the Supplier shall retain all title, interest and rights (including Intellectual Property Rights) which subsist in or which may be obtained from the following:

(i) any material the Supplier creates which is based upon or derived from the Customer Materials or any Intellectual Property Rights owned by or licensed to the Customer or is made to the design or at the direction of the Customer (including without limitation the construction drawings, electrical and hydraulic layouts, joinery, finishes, structural details and reports);

(ii) the Units; and

(iii) any additional or further intellectual property created, formulated or discovered during the Term by either party in connection with the Units (including anything incidental to the above mentioned drawings, layouts, details and documents),

(collectively the “Supplier IP”).

(b) The Customer undertakes not to:

(i) take or permit or omit any action which would or might:

(A) invalidate or put in dispute the Supplier’s title to the Supplier IP or any part of it;

(B) oppose any application for registration or invalidate any registration of the Supplier IP or any part of it (including without limitation a registration of the Supplier IP as a patent worldwide);

(D) assist any other person directly or indirectly in any of the above;

(ii) use, copy, reproduce, distribute, export, adapt, alter, modify, translate, create derivate works, or publicly display any of the Supplier IP anywhere in the world, without the prior written consent of the Supplier.

(c) The Customer will promptly sign all documents and do all things necessary to register, vest or transfer any interest or ownership in such additional or further intellectual property to the Supplier.

(d) In the event the Supplier provides the Customer with access to the Supplier IP and/or Confidential Information, the Supplier grants the Customer a revocable, non-exclusive, non-assignable or transferable licence to use the Supplier IP and/or Confidential Information solely for the purpose of fulfilling its obligations under this Agreement during the Term.

17.4 Continuous Obligations

The obligations contained in this clause 16 shall endure for so long as a party shall have an interest in any or all of its Intellectual Property Rights.

18 Confidentiality and Information

18.1 Confidentiality obligations

(a) Other than where:

(i) use of the other party's Confidential Information is required for the purpose of complying with a party's obligations under this Agreement;

(ii) the other party's Confidential Information is in the public domain, except as a consequence of a breach of this clause;

(iii) expressly agreed by all parties in writing; or

(iv) required by law;

each party must at all times:

(v) treat and keep the other party's Confidential Information confidential;

(vi) not use, or allow the use, of the other party's Confidential Information by any third party; and

(vii) not disclose or allow the disclosure, of the other party's Confidential Information or the fact of the disclosure of the other party's Confidential Information to any third party.

(b) Without limiting the generality of clause 17.1(a), where a party receives (Recipient) Confidential Information of the other party (Discloser), the Recipient must:

(i) only use the Confidential Information in accordance with the instructions provided by the Discloser in writing;

(ii) not reproduce or record or make any notes of any Confidential Information except as permitted;

(iii) not allow or assist any other person to disclose, use, publish or release the Confidential Information;

(iv) put in place and maintain adequate security measures to protect the confidentiality of the Confidential Information being no less stringent than a reasonable person in the Recipient's position would use with respect to its own confidential information including:

(A) taking reasonable steps to keep the Confidential Information within its possession, power, custody and control;

(B) taking reasonable steps to ensure the proper and secure storage of the Confidential Information; and

(C) taking reasonable steps to protect the Confidential Information from unauthorised access, disclosure or use, or loss, damage or destruction; and

(v) not use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever.

18.2 Notifying the Discloser

The Recipient:

(a) must immediately notify the Discloser if the Recipient becomes aware of any breach or anticipated breach of the obligations in this Agreement; and

(b) must immediately notify the Discloser if the Recipient is lawfully obliged to disclose any Confidential Information to a third party and must comply with the Discloser's lawful directions in relation to the disclosure.

18.3 Return of Confidential Information

(a) If requested by the Discloser, the Recipient must immediately:

(i) return to the Discloser or destroy (at the direction of the Discloser) all Confidential Information, and any copies of the Confidential Information;

(ii) cease using the Confidential Information; and

(iii) an authorised signatory of the Recipient must confirm in writing that they complied with this clause.

(b) For the avoidance of doubt, the return, destruction or deletion of Confidential Information under this clause does not release the Recipient from its obligations under or in connection with this Agreement.

18.4 Injunction

In the event of a breach or threatened breach of these terms by the Recipient, the Discloser will be entitled to an injunction restraining the Recipient from committing any breach of this Agreement without showing or proving actual damage sustained or likely to be sustained.

19 Assignment and Subcontracting

19.1 The Customer, may not assign, novate, subcontract, charge, delegate, or otherwise transfer, in any manner whatsoever, its rights or obligations under the Agreement without the Supplier’s written consent which must not be unreasonably withheld.

19.2 The Supplier may assign, novate, subcontract, charge, delegate, or otherwise transfer, in any manner whatsoever, its rights or obligations under the Agreement without the Customer’s written consent.

20 Variation and Waiver

20.1 Unless expressly provided a variation of or amendment to the Agreement is only valid if it is in writing and signed by The Customer and the Supplier or their authorised representatives.

20.2 No failure or delay by any party to exercise any right, power or remedy (and in particular, without limitation, no acceptance of late, incomplete or defective deliveries) will operate as a waiver of the Agreement nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy (whether provided by law, equity or the Agreement).

21 Notices

21.1 All notices must be served using the contact details set out in the Agreement or such other details as are formally notified by the relevant person.

21.2 A party may by notice change any of the contact details for it referred to in the Agreement.

21.3 Any notice is deemed to be received:

(a) upon receipt, in the case of deliveries by hand during business hours, or by prepaid recorded mail; and

(b) upon receipt of a transmission slip confirming receipt, when sent by fax; on the next Business Day (being a day on which banks in the principal place of business of The Customer are open for over the counter banking business, except a Saturday, Sunday or public holiday) following the date of electronic communication.

22 Termination

22.1 The Supplier may in its absolute discretion, by written notice to the Customer, immediately terminate this Agreement (and shall have no liability for any Loss suffered by the Customer due to the termination):

(a) if the Customer fails to make payment in accordance with clause 3;

(b) if the Customer becomes insolvent;

(c) if the Customer commits an act of bankruptcy or is made bankrupt;

(d) if the Customer makes a composition or other arrangement with creditors;

(e) if the Customer assigns assets for the benefit of creditors generally;

(f) being a company, if the Customer enters into a deed of company arrangement or has a controller, administrator, receiver or receiver and manager appointed;

(g) being a company, if the Customer goes into liquidation;

(h) being a partnership, if the Customer has a receiver or a receiver and manager appointed;

(i) in the event of Force Majeure (such as if there are issues with the Supplier's supplier or materials and the Supplier is unable to supply the agreed Units); or

(j) if the Customer breaches any warranty or obligation contained in this Agreement and fails to rectify the breach within 7 days of being given a notice to do so.

22.2 The Customer may terminate this Agreement if the Supplier breaches the terms of this Agreement and fails to rectify the breach within a reasonable time (being not less than 14 days) of being given a notice to do so.

22.3 The rights and remedies of the parties contained in this clause 21 are in addition to any other rights and remedies by law, in equity or under this Agreement.

23 Indemnity and Limitation of Liability

23.1 Except as provided under this Agreement and to the extent permitted by law:

(a) the Customer:

(i) releases the Supplier and its officers, employees and agents from any and all Claims by the Customer or any of its officers, employees, agents or invitees;

(ii) indemnifies the Supplier and its officers, employees and agents against any and all Claims made by third parties against the Supplier;

(iii) indemnifies the Supplier and its officers, employees and agents against any Loss suffered by or incurred by the Customer,

arising from any act, default, omission, negligence or breach of contract or otherwise, by the Customer or any of its directors, employees, agents or invitees, except to the extent (if any that):

(iv) the Supplier recovers an amount from its insurers in respect of the Claim; or

(v) the Loss the subject of the Claim is caused by the fraudulent act or omission of the Supplier.

(b) the Supplier is not liable for any Claim or any Loss arising from any event or cause, beyond the control of the Supplier including but not limited to:

(i) any act or omission of the Customer, including any delay caused by the Customer;

(ii) damage after delivery;

(iii) any problem caused by misuse, abuse, wear and tear or abnormal movement;

(iv) goods or appliances made by others;

(v) any defect in, or problem caused by, work materials or goods supplied by the Customer;

(vi) any problem caused by or contributed to by any modification to the Units by the Customer; or

(vii) any defect caused or contributed to by a failure of the Customer to follow any procedure recommended by the Supplier or by the manufacturer of any materials used by the Supplier in the Units.

23.2 The Customer will indemnify and hold harmless the Supplier, its officers, directors, employees and agents and parent, subsidiary or affiliated companies, from and against any and all damage, Loss, Claims and demands of any nature caused by or arising out of the acts or omissions of the Customer in providing the Units.

23.3 Subject to the other terms of this clause, the Supplier’s maximum aggregate liability to the Customer in any 12-month period for any loss or damage or injury arising out of or in connection with the manufacture and supply of Units under this Agreement, including any breach by the Supplier of this Agreement however arising, under any indemnity, in tort (including negligence), under any statute, custom, law or on any other basis, is limited to the actual charges paid by the Customer under this agreement in the 12-month period preceding the matter or event giving rise to the claim.

23.4 Nothing in this Agreement is intended to have the effect of excluding, restricting or modifying the application of all or any of the provisions of Part 5-4 of the ACL, or the exercise of a right conferred by such a provision, or any liability of the Supplier in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL to a supply of goods or services.

23.5 If the Supplier s liable to the Customer in relation to a failure to comply with a guarantee that applies under Division 1 of Part 3-2 of the ACL that cannot be excluded, the Supplier's total liability to the Customer for that failure is limited to, at the option of the Supplier to the replacement of the Units or the supply of equivalent Units, or the repair of the Units, or the payment of the cost of replacing the Units or of acquiring equivalent Units, or the payment of the cost of having the Units repaired.

23.6 Without limitation to the other terms of this Agreement, the Supplier excludes any liability to the Customer, whether in contract, tort (including negligence) or otherwise, for any special, indirect or consequential loss arising under or in connection with this Agreement.

24 Force Majeure

24.1 Neither party is responsible for any failure to comply, or any delay in complying, with this Agreement (except any failure or delay to pay money) if the failure or delay is due to any cause beyond that party's reasonable control, a strike, lock-out or other industrial action, any actions taken by the Supplier or its employees, agents or contractors in response to public health concerns (including health epidemics or pandemics), compliance with a government request, or a shortage of supply. The parties have an absolute discretion whether to settle any strike, lock-out or other industrial action.

25 Entire Agreement

25.1 This Agreement contains the entire agreement of the parties and supersedes all prior agreements, understandings or arrangements relating to the relevant subject matter of this Agreement.

25.2 The Customer’s employees do not have authorisation to bind the Customer by an oral agreement at variance with these general terms and conditions.

25.3 The Supplier’s employees do not have the authorisation to bind the Supplier by an oral agreement at variance with these general terms and conditions.

25.4 The rights and remedies provided by this Agreement are cumulative and except as stated do not exclude any rights and remedies provided by law.

25.5 The Agreement does not establish a partnership, a joint venture or the relationship of principal and agent.

26 Law and Jurisdiction

26.1 This Agreement will be governed by the laws of the State of New South Wales, Australia.

26.2 All claims or arising out of or in connection with this Agreement will be subject to the non-exclusive jurisdiction of the Courts of the New South Wales and their courts of appeal.

27 Severability

27.1 If any provision of this Agreement is or becomes invalid and not enforceable in accordance with its terms, all other provisions which are self-sustaining and capable of separate enforcement without regard to the invalid provision shall be and continue to be valid and enforceable in accordance with their terms.

28 Counterpart

28.1 This Agreement may be signed in counterpart.