TERMS OF TRADE

These terms and conditions are between MJK Industries Pty Ltd (ACN 604 280 364) of 21-23 Mica Street, Carole Park QLD 4300, (we, us or our) and you, the person or entity stated in the Work Order (you or your), together the Parties and each a Party. Together, these terms and conditions, Annexures and the Work Order (attached to these Terms or the Work Order) form the entire agreement under which we will provide the Goods and Services to you (Terms).

Our Disclosures: Please read these Terms carefully and contact us if you have any questions. By accepting these Terms, you agree that:

• Subject to your Consumer Law Rights, you may be liable for Expenses (see clause 3).
• subject to your Consumer Law Rights, we will not refund any amounts paid by you (see clause 4(b));
• subject to your Consumer Law Rights, we exclude our liability for any loss or damage which is the inevitable and unavoidable part of providing the Goods and Services; and
• subject to your Consumer Law Rights, our liability for the provision of the Goods and Services will be limited to, at our discretion 100% of the Price.

1. Acceptance
   • You have requested the Services set out in the Work Order. You accept these Terms by:

• signing and returning this Agreement;
• confirming in writing, including by email that you accept the Work Order;
• accepting the Work Order online;
• allowing us to proceed with the Services; or
• making part or full payment for the Services.
  • Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 14 of the Electronic Transactions (Queensland) Act 2001 or any other applicable provisions of that Act or any Regulations referred to in that Act.
  • You agree that these Terms form the agreement under which we will supply Services to you (Agreement). Please read these Terms carefully. Please contact us if you have any questions. Purchasing Services from us indicates that you have had sufficient opportunity to read these Terms and contact us if needed, that you have read, accepted and will comply with these Terms.
  • The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these Terms if the Client places an order for or accepts delivery of any Services.
  • In the event of any inconsistency between the terms and conditions of this Agreement and any other prior document or schedule that the parties have entered into, the terms of this Agreement shall prevail.
  • Any amendment to the terms and conditions contained in this Agreement may only be amended in writing by the consent of both parties.
  • Any advice, recommendation, information, assistance or service provided by the Company in relation to Services provided is given in good faith, is based on the Company’s own knowledge and experience and shall be accepted without liability on the part of the Company and it shall be the responsibility of the Client to confirm the accuracy and reliability of the same in light of the use to which the Client makes or intends to make of the Services.

2. Goods and Services
   • We agree to provide the Goods and Services to you in accordance with these Terms (including any Specifications) and all applicable Laws including the National Construction Code whether ourselves or through our Personnel.
3. Time
   • If these Terms or any relevant Work Order expresses a time within which the Goods and/or Services are to be supplied, we will use reasonable endeavours to provide the Goods and/or Services by such time, but you agree that such time is an estimate only.
   • We will have no liability (including a failure to meet any date referred to in clause 1, for delays caused by one or more of the following events or circumstances:

• a Variation or deemed Variation;
• an act, omission or breach by you or any of your Personnel;
• inclement weather;
• delays in obtaining approvals for the Goods and Services from relevant Authorities;
• delays by you in approving designs and related documents, where required;
• delays in preparing and/or providing access to the Site; and
• any other event or circumstance beyond our reasonable control (including Force Majeure Events).
  • If we are delayed as a result of your acts or omissions (other than acts or omissions expressly authorised or permitted by these Terms), you will be liable to pay to us reasonable delay damages for each day (or partial day) that we are delayed.

4. Australian Consumer Law
   • Certain legislation, including the Australian Consumer Law and similar consumer protection laws and regulations, may confer you with rights, warranties, guarantees and remedies relating to the Goods and Services which cannot be excluded, restricted or modified (Consumer Law Rights). To the extent that you maintain Consumer Law Rights a law, nothing in these Terms excludes those Consumer Law Rights.
   • Subject to your Consumer Law Rights, we exclude all warranties, and all material, work and services (including the Goods and Services) are provided to you without warranties, representations and guarantees of any kind, except where expressly provided in these Terms.
   • This clause 4 will survive the termination or expiry of these Terms.
5. QBCC Act
   • This clause 5 applies if the Site is in Queensland.
   • To the extent that any portion of the supply of Goods and Services requires us to hold a licence pursuant to the QBCC Act, we must obtain a licence of the appropriate class under the QBCC Act prior to the time when we are required to provide the relevant Goods and Services.
   • We must not perform any portion of the supply Goods and Services for which a licence is required under the QBCC Act, unless we hold a licence of the appropriate class under the QBCC Act.
   • If we are unable to perform any portion of the supply of Goods and Services because we have failed, refused or been unable to obtain a licence of the appropriate class under the QBCC Act, you may, in addition to any other rights you may have under contract or at Law, exercise your rights in accordance with clause 3(a).
   • To the extent the QBCC Act applies to these Terms:

• the rights and obligations of the Parties under these Terms are subject to the provisions of the QBCC Act to the extent they apply and have not been contracted out of; and
• to the extent there is any inconsistency between these Terms and the QBCC Act, the QBCC Act will prevail.

6. Variations
   • You may request a variation or change to the Goods and Services, including the timing for the supply of the Goods and Services (Variation), by providing written notice to us, with details of the Variation (Variation Request). We will not be obliged to comply with a Variation Request unless we accept the Variation Request in writing. The Parties agree to comply with these Terms as varied by any Variation Request accepted in writing.
   • If we reasonably consider that any instruction or direction from you constitutes a Variation, then we will not be obliged to comply with such instruction or direction unless a Variation Request has been issued and accepted by us in accordance with clause 1.
   • Where the Goods and Services are varied or changed, or the costs of providing the Goods and Services increases (including as a result of any change in Law), (Variation Event) and the cause of that Variation Event relates to, or is connected with, an event or circumstance beyond our reasonable control, including but not limited to the reimbursable expenses outlined in the Expenses section of Annexure 1 Schedule of Rates, you agree to pay us our reasonable additional costs and Expenses that we may suffer or incur as a result of the Variation Event.
   • You acknowledge and agree that the Price is based on us delivering the Goods and performing the Services during Ordinary Hours. If you direct or request for us to carry out any part of the Services outside of the Ordinary Hours, or we are required to do so for any reason whatsoever, this shall constitute a Variation Event.
7. Your Personnel and Your Items
   • You are responsible for the acts or omissions, and any goods or services provided by your Personnel. You agree to ensure your Personnel cooperate with us and do not interfere with the supply of the Goods and Services.
   • You warrant and agree that any information, documentation, specifications, design documents, goods or services provided, or directions provided, by you or your Personnel in relation to the Goods and Services (Your Items) will be:

• provided solely at your own risk, and you agree that we will assume no responsibility or Liability for Your Items;
• fit for purpose, of merchantable quality and compliant with all applicable Laws;
• complete and accurate in all material respects; and
• sufficient to enable us to comply with our obligations under these Terms and all applicable Laws,

and we will have no liability to you for any Liability, and you waive and release us from any such Liability, arising from Your Items.

• You acknowledge that we will rely on the accuracy and completeness of Your Items in performing our obligations under these Terms.
• You must promptly notify us upon becoming aware of any material inaccuracy or incompleteness in Your Items.

8. Price and Payment
   • In consideration for us providing the Goods and Services, you agree to pay us the Price (including any Expenses) in accordance with these Terms.
   • Subject to the provisions of these Terms, and to the extent permitted by the Security of Payment Legislation:

• you must pay any deposit set out in the Work Order to us on the Commencement Date;
• we may submit a payment claim to you on the last day of each month, for Goods and Services provided up to the last day of that month, and for any other amounts payable under these Terms;
• you must, within 5 business days of receiving the payment claim from us, issue a payment schedule specifying the amount that you propose to pay to us in relation to the relevant payment claim, and including any reasons for withholding payment of any amount; and
• you must pay to us the amount specified in your payment schedule within 10 business days of receiving the payment claim from us (Payment Terms).
  • If you fail to make payment of the Price or any amount payable under these Terms, we may:
• after a period of 5 business days, cease providing the Goods and Services, and recover, as a debt due and immediately payable from you, our additional costs of doing so (including all recovery costs);
• charge interest at a rate equal to the Reserve Bank of Australia’s cash rate, from time to time, plus 2% per annum, calculated daily and compounding monthly, on any such amounts unpaid after the relevant due date, in accordance with the Payment Terms; and
• recover or repossess any Goods belonging to us, and you agree to grant us such rights of access to allow us (or our Personnel) to do so.

9. Warranties and Representations
   • Each Party represents, warrants and agrees that:

• it has full legal capacity, right, authority and power to enter into these Terms, to perform its obligations under these Terms, and to carry on its business;
• that these Terms constitute a legal, valid and binding agreement, enforceable in accordance with their terms;
• if applicable, it holds a valid ABN which has been advised to the other Party; and
• if applicable, it is registered for GST purposes.
  • You represent, warrant and agree that:
• you will comply with these Terms and all applicable Laws;
• you have effected and will maintain appropriate insurance policies for the Site for the duration of our provision of the Goods and Services under these Terms;
• you (and to the extent applicable, your Personnel) will cooperate with us, and promptly provide us with all documentation, information, instructions, facilities and access (including access to the Site) as may be reasonably necessary to enable us to provide the Goods and Services in accordance with these Terms;
• all the information and documentation that you provide to us in connection with these Terms is true, correct and complete;
• you will not infringe any third party rights in working with us and receiving the Goods and Services;
• you will ensure that the Site is safe and free of harmful materials or substances;
• you are responsible for obtaining, and providing to us if necessary, any access and Approvals from third parties necessary for the Goods and Services to be provided, at your cost;
• you must not use, and you must ensure that no person uses, any part of the Goods and Services:
  • to break any Law or infringe any person’s rights (including Intellectual Property Rights); or
  • in any way that damages, interferes with or interrupts the supply of the Goods and Services; and
• if you enter these Terms as a trustee of a trust, then:
• you are the sole trustee of the trust and no action has been taken to remove or replace it;
• you have the power under the trust deed to execute and perform your obligations under these Terms;
• all necessary action has been taken to authorise the execution and performance of these Terms under the trust deed;
• you have the right to be fully indemnified out of the trust fund of the trust in relation to these Terms and that right has not been modified or released;
• the assets of the trust are sufficient to satisfy the trustee’s right of indemnity and all other obligations in respect of which the trustee has a right to be indemnified out of the assets of the trust; and
• these Terms are executed, and all transactions relating to it are or will be entered into, as part of the due and proper administration of the trust, and the transactions are or will be for the benefit of the beneficiaries.

10. Delivery
    • The Goods and Services shall be delivered to you at the Nominated Address.
    • Delivery of the Goods and Services is taken to occur at the time that:

• you take possession of the Goods and Services at the Nominated Address; or
• we (or our nominated carrier) deliver the Goods and Services to the Nominated Address, even if you are not present to accept the Goods and Services at the time of delivery.
  • In the event we are not able to deliver the Goods to you because you are not present at your Nominated Address or there is no way of delivering such Goods, we reserve the right to charge you an additional fee to account for any additional costs incurred by us as a result of the failed delivery. Any such costs will be valued as a Variation under clause 6.
  • We do not accept any liability for any costs, expenses, losses or damages incurred by you due to the late delivery of the Goods.
  • We may deliver the Goods and Services in separate instalments with each separate instalment being invoiced and paid in accordance with this Agreement.
  • You are entitled to inspect the Goods on delivery to the Nominated Address. If you discover a fault, defect or error in the Goods and Services, which is caused by a breach of this Agreement by us (Defect), you must submit a claim outlining details of the Defect, accompanied with evidence of such Defect, within 2 business days of the delivery of the Goods and Services.  Following receipt of the notice of Defect, we shall respond to you in writing setting out our response and details of any actions required to correct the Defect.

11. Title and Risk
    • As between the Parties, you agree to pay for the reasonable costs of delivering and/or collecting the Goods.
    • Title in the Goods will remain with us until all amounts due and payable to us under these Terms are paid in full.
    • Risk in the Goods will pass to you on:

• collection of the Goods at the collection location as agreed between the Parties; or
• delivery of the Goods to the address set out in the Work Order,

provided that risk in the Goods will remain with us if, and at the times that, we are required to incorporate the Goods at the Site as part of the Services, and will transfer to you once we have completed the relevant Services.

12. Security interest
    • You acknowledge and agree that:

• these Terms are a ‘security agreement’ under the PPSA;
• this clause 12 creates a security interest in all present and after acquired goods, and any proceeds from any sale or disposal of goods, as security for your obligations to us;
• we are a secured party in relation to the Goods and any proceeds in respect of any sale or disposal of the Goods, and we are entitled to register this interest on the relevant register as either (at our discretion) a security interest, and if applicable, a ‘purchase money security interest’;
• you must (at your cost), where we request, take all steps that we consider necessary or desirable to ensure our security interest in the Goods and the proceeds is enforceable, and to perfect, or better secure our position under these Terms, or ensure our priority over all other security interests.
  • Until such time as title in the Goods has passed to you as contemplated under clause 10 you must not allow any person to have or acquire any security interest in the Goods, unless with our prior written consent.
  • To the extent the Law permits, you waive your right to receive any notice (including notice of a verification statement) that is required by the PPSA, including but not limited to notices under sections 157, 95, 118, 121, 130, 132 or 135. However, this does not prevent us from giving a notice under the PPSA.
  • You must not disclose any information of the kind referred to in section 275 of the PPSA, to the extent permitted under that section.
  • Nothing in this clause 12 is intended as an agreement to subordinate a security interest arising under these Terms and conditions in favour of any person under section 61 of the PPSA.
  • In this clause 12 a ‘security interest’ includes any form or lien, encumbrance or a security interest under the PPSA.

13. Term and Termination
    • These Terms will commence on the Commencement Date, and will continue until the earlier of the date:

• the Goods and Services are supplied to you in accordance with these Terms; and
• these Terms are terminated in accordance with this clause 13,

(Term).

• Either Party may terminate these Terms at any time by giving 30 days’ notice in writing to the other Party.
• These Terms will terminate immediately upon written notice by a Party (Non-Defaulting Party), if:

• the other Party (Defaulting Party) breaches a material term of these Terms and that breach has not been remedied within 10 business days of the Defaulting Party being notified of the breach by the Non-Defaulting Party; or
• (to the extent permitted under the Corporations Act 2001 (Cth)) any step is taken to enter into any arrangement between the Defaulting Party and its creditors, any step is taken to appoint a receiver, a receiver and manager, a liquidator, a provisional liquidator or like person of the whole or any part of the Defaulting Party’s assets or business, the Defaulting Party is bankrupt, or the Defaulting Party is unable to pay its debts as they fall due.
  • Upon expiry or termination of these Terms:
• we will immediately cease providing the Goods and Services;
• without limiting your Consumer Law Rights, you agree that any payments made by you to us are not refundable to you;
• if requested by the Disclosing Party, the Receiving Party must destroy or return to the Disclosing Party all of its Confidential Information, except that the Receiving Party may keep a copy of such Confidential Information to the extent required by Law or pursuant to its information technology back-up procedures, provided always that the Receiving Party retains such Confidential Information in accordance with clause 18;
• you are to pay for all Goods and Services provided prior to termination, including Goods and Services which have been provided and have not yet been invoiced to you, and all other amounts due and payable under these Terms; and
• by us pursuant to clause 3, you also agree to pay us our additional costs, reasonably incurred, and which arise directly from such termination (including recovery fees);
  • Termination of these Terms will not affect any rights or liabilities that a Party has accrued under it.
  • This clause 13 will survive the termination or expiry of these Terms.

14. Latent Conditions
    • If we encounter any condition, event, circumstance, matter or thing in, on or around the Site or otherwise that could not have reasonably been foreseen or anticipated by us as at the date of the Work Order, and that would or would likely result in us, you or any third party suffering or incurring additional cost or delay, or would require a change to the Work Order, Goods, Services, Price, and/or these Terms (Latent Condition), during the provision of the Goods and Services, we will notify you as soon as reasonably practicable after becoming aware of the Latent Condition.
    • Any additional works, materials, costs or delays that we suffer or incur as a result of any Latent Conditions, or any instructions or directions given by you that are in addition to the Works, will constitute a deemed Variation.
    • Any deemed Variation for a Latent Condition, including in relation to the Price, will be handled in accordance with clause 1.
15. Liability

Despite anything to the contrary, but subject to you Consumer Law Rights, to the maximum extent permitted by law:

• neither Party will be liable for any Consequential Loss;
• a Party’s liability for any Liability under, arising from, or in connection with, these Terms will be reduced proportionately to the extent the relevant Liability was caused or contributed to by the acts or omissions of the other Party (or any of its Personnel), including any failure by that other Party to mitigate its loss; and
• (in respect of any failure by us to comply with relevant Consumer Law Rights) our Liability is limited (at our discretion) to:

• replacing the Goods or the supply of equivalent Goods, or the payment of the cost of replacing the Goods or of supplying equivalent Goods;
• the repair of the Goods, or the payment of the cost of having the Goods repaired; and/or
• supplying the Services again or paying the cost of having the Services supplied again.
  • subject to clause 15(a) our maximum aggregate liability for any Liability arising from or in connection with these Terms will be limited to 100 % of the Price; and
  • we will not be liable for, and you waive and release us from and against, any Liability caused or contributed to by any loss or damage which is the inevitable and unavoidable part of performing the Goods and Services.

16. Restraint of Trade
    • You (whether inadvertently, directly or indirectly, or through any third party) must not, during the Restraint Period and in the Restraint Area induce or solicit our Personnel (who were Personnel at the date of termination or expiry of these Terms or within the 12 months prior), to leave their employment or limit or end their contractual arrangement with us (as applicable).
    • You agree that:
      • the terms of this clause 16 are reasonable given the nature of our business, are necessary to protect our legitimate business interests and do not unreasonably restrict your right to carry on your profession or trade;
      • we may seek legal remedies (including equitable remedies) for a breach of this clause 16; and
      • on request, you agree to provide us with evidence sufficient to enable us to confirm your compliance with this clause 16.
    • For the purposes of this clause 16, Restraint Period means the Term, and:
      • 12 months after the Term of these Terms, or (if that duration is deemed unreasonable by a court);
      • 9 months after the Term of these Terms, or (if that duration is deemed unreasonable by a court);
      • 6 months after the Term of these Terms.
    • For the purposes of this clause 16, Restraint Area means:
      • the countries in which we supplied the Services to you, or (if that area is deemed unreasonable by a court);
      • the states and/or territories in which we supplied the Services to you, or (if that area is deemed unreasonable by a court);
      • the metropolitan cities in which we supplied the Services to you.
    • Each restraint contained in this clause 16 (resulting from any combination of the wording in clause 1 with each of the Restraint Areas and Restraint Periods) are separate, distinct and several, so that the unenforceability of any restraint does not affect the enforceability of the other restraints.
    • This clause 16 will survive the expiry or termination of this Agreement.
17. Intellectual Property
    • As between the Parties:

• we own all Intellectual Property Rights in Our Materials;
• you own all Intellectual Property Rights in Your Materials; and
• nothing in these Terms constitutes a transfer or assignment of any Intellectual Property Rights in Our Materials or Your Materials.
  • As between the Parties, ownership of all Intellectual Property Rights in any New Materials will at all times vest, or remain vested, in us upon creation. To the extent that ownership of such Intellectual Property Rights in any New Materials does not automatically vest in us, you hereby assign all such Intellectual Property Rights to us and agree to do all other things necessary to assure our title in such rights.
  • We grant you a non-exclusive, revocable, worldwide, non-sublicensable and non-transferable right and licence, to use Our Materials that we provide to you and the New Materials, solely for your use and enjoyment of the Goods and Services, as contemplated by these Terms.
  • You grant us a non-exclusive, irrevocable, worldwide, non-sublicensable (other than to our related bodies corporate, as that term is defined in the Corporations Act 2001 (Cth)) and non-transferable right and licence [for the duration of the Term], to use Your Materials that you provide to us solely for the purpose of performing of our obligations or exercising our rights under these Terms.
  • If you (if you are an individual) or any of your Personnel have any Moral Rights in any material provided, used or prepared in connection with these Terms, you agree to (and will procure that your Personnel) consent to our use or infringement of those Moral Rights.
  • This clause 16 will survive termination or expiry of these Terms.

18. Confidential Information
    • Each Receiving Party agrees:

• not to disclose the Confidential Information of the Disclosing Party to any third party (subject to subclause 1(c);
• to protect the Confidential Information of the Disclosing Party from any unauthorised disclosure;
• to only disclose the Confidential Information to those of its Personnel who need to know the Confidential Information in connection with these Terms, provided those persons keep the Confidential Information confidential in accordance with this clause 1; and
• to only use the Confidential Information of the Disclosing Party for the purpose of performing obligations, or exercising rights or remedies, under these Terms.
  • The obligations in clause 1 do not apply to Confidential Information that:
• is required to be disclosed in order for the Parties to comply with their obligations under these Terms;
• is authorised in writing to be disclosed by the Disclosing Party;
• is in the public domain and/or is no longer confidential, except as a result of a breach of these Terms or other duty of confidence; or
• must be disclosed by Law or by a regulatory authority, including under subpoena, provided that (to the extent permitted by Law) the Receiving Party has given the Disclosing Party notice prior to disclosure.
  • Each Party agrees that monetary damages may not be an adequate remedy for a breach of this clause 18. A Party is entitled to seek an injunction, or any other remedy available at Law or in equity, at its discretion, to protect itself from a breach (or continuing breach) of this clause 18.
  • This clause 18 will survive the termination of these Terms.

19. GST
    • If GST is payable on any supply made under these Terms, the recipient of the supply must pay an amount equal to the GST payable on the supply. That amount must be paid at the same time that the consideration is to be provided under these Terms and must be paid in addition to the consideration expressed elsewhere in these Terms unless it is expressed to be inclusive of GST. The recipient is not required to pay any GST until the supplier issues a tax invoice for the supply.
    • If an adjustment event arises in respect of any supply made under these Terms, a corresponding adjustment must be made between the supplier and the recipient in respect of any amount paid by the recipient under this clause, an adjustment note issued if required, and any payments to give effect to the adjustment must be made.
    • If the recipient is required under these Terms to pay for or reimburse an expense or outgoing of the supplier, or is required to make a payment under an indemnity in respect of an expense or outgoing of the supplier, the amount to be paid by the recipient is to be reduced by the amount of any input tax credit in respect of that expense or outgoing that the supplier is entitled to.
    • The terms “adjustment event”, “consideration”, “GST”, “input tax credit”, “recipient”, “supplier”, “supply”, “taxable supply” and “tax invoice” each has the meaning which it is given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
20. General
    • Amendment: Subject to clause 6, these Terms may only be amended by written instrument executed by the Parties.
    • Assignment: Subject to clause 3, and 17.4, a Party must not assign, novate or deal with the whole or any part of its rights or obligations under these Terms without the prior written consent of the other Party (such consent is not to be unreasonably withheld).
    • Assignment of Debt: You agree that we may assign or transfer any debt owed by you to us, arising under or in connection with these Terms, to a debt collector, debt collection agency, or other third party.
    • Counterparts: This Agreement may be executed in any number of counterparts that together will form one instrument.
    • Disputes: A Party may not commence court proceedings relating to any dispute, controversy or claim arising from, or in connection with, these Terms (including any question regarding its existence, validity or termination) (Dispute) without first complying with this clause 5. A Party claiming that a Dispute has arisen must give written notice to the other Party specifying the nature of the Dispute (Dispute Notice). The Parties must meet (whether in person, by telephone or video conference) within 10 Business Days of service of the Dispute Notice to seek (in good faith) to resolve the Dispute. If the Parties do not resolve the Dispute within 20 Business Days of the date the Dispute Notice was served (or such further period as agreed in writing by the Parties), either Party may refer the matter to mediation, administered by the Australian Disputes Centre in accordance with the Australian Disputes Centre Guidelines for Commercial Mediation. Nothing in this clause will operate to prevent a Party from seeking urgent injunctive or equitable relief from a court of appropriate jurisdiction. This clause will survive termination or expiry of this Agreement.
    • Force Majeure: Neither Party will be liable for any delay or failure to perform their respective obligations under these Terms if such delay or failure is caused or contributed to by a Force Majeure Event. This clause will not apply to a party’s obligation to pay any amount that is due and payable to the other Party under these Terms.
    • Governing law: These Terms are governed by the laws of Queensland. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts operating in Queensland and any courts entitled to hear appeals from those courts and waives any right to object to proceedings being brought in those courts.
    • Joint and Several Liability: Where you constitute two or more individuals or entities, you will each be jointly and severally liable under these Terms.
    • Notices: Any notice given under these Terms must be in writing addressed to the relevant address last notified by the recipient to the Parties. Any notice may be sent by standard post or email, and will be deemed to have been served on the expiry of 48 hours in the case of post, or at the time of transmission in the case of transmission by email.
    • Publicity: Despite clause 18, you agree that we may advertise or publicise the broad nature of our provision of the Goods and Services to you, including on our website or in our promotional material.
    • Privacy: Each Party agrees to comply with the legal requirements of the Australian Privacy Principles as set out in the Privacy Act 1988 (Cth) and any other applicable legislation or privacy guidelines.
    • Relationship of Parties: These Terms are not intended to create a partnership, joint venture, employment or agency relationship between the Parties.
    • Severance: If any provision (or part of it) under these Terms is held to be void, invalid, illegal or unenforceable, that provision is to be read down as narrowly as necessary to allow it to be valid or enforceable, failing which, that provision (or that part of that provision) will be severed from these Terms without affecting the validity or enforceability of the remainder of that provision or the other provisions in these Terms.
    • Survival: Each clause, which by its nature survives termination, will survive the termination or expiry of these Terms.
    • Waiver: Any failure or delay by a Party in exercising a power or right (either wholly or partially) in relation to these Terms does not operate as a waiver or prevent that Party from exercising that power or right or any other power or right. A waiver must be in writing and will be effective only to the extent specifically stated.
    • Further assurance: Each Party must to promptly do all things and execute all further instruments necessary to give full force and effect to these Terms and their obligations under it.
    • Subcontracting: We may subcontract the provision of any part of the Goods and Services without your prior written consent. We agree that any subcontracting does not discharge us from any liability under these Terms and that we are liable for the acts and omissions of our subcontractor.
21. Definitions
    • In these Terms, unless the context otherwise requires:

ACL or Australian Consumer Law means the Australian consumer laws set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth), as amended, from time to time.

Afternoon Shift means any shift finishing after 6.00 pm and at or before midnight.

Afternoon Shift – Non-successive means, where our personnel work on a night shift which does not continue

• for at least 5 successive after or night shifts or 6 successive night shifts in a 6 day workshop ((where no more than 8 ordinary hours are worked on each shift); or
• for at least 38 ordinary hours.

Approval means any approval, consent, licence, permit, permission, application, registration or equivalent required to be obtained in connection with the Goods and Services by any Authority or any Law.

Authority means any national, State, Territory or local government departments, bodies, instrumentalities or other public authorities the approval of which is applicable to or necessary for the provision of the Goods and Services.

Call-back means where our Personnel is called back to work to undertake part or full shift that is unscheduled and is within 11 hours of finishing a previous shift. It may also include where our Personnel is sent home from a scheduled shift to rest and commence the unscheduled shift within 10 hours. The call-back fee is applicable to each of our Personnel on each occasion they are called back.

Call-out means where our Personnel is rostered to be On-Call and is called in to undertake work during the On-Call period. The Call-Out fee is applicable to each of our Personnel on each occasion they are called out.

Chargeable Hours of Work means all hours where our Personnel is:

• travelling to Site from the Workshop or on return from the Site to the Workshop;
• undertakes site inductions, safety workshops or familiarisations, or
• all hours on Site or at Workshop during the scheduled hours of work, and meal breaks.

Commencement Date means the date these Terms are accepted in accordance clause Error! Reference source not found..

Commencement of Shift shall be the time our Personnel arrive at the Workshop to collect tooling and equipment, or where our Personnel leaves home to go direct to Site if there is a Call-Back or Call-Out, the time at which our Personnel leaves home..

Confidential Information means information which:

• is disclosed to the Receiving Party in connection with these Terms at any time;
• relates to the Disclosing Party’s business, assets or affairs; or
• relates to the subject matter of, the terms of and/or any transactions contemplated by these Terms,

whether or not such information or documentation is reduced to a tangible form or marked in writing as “confidential”, and howsoever the Receiving Party receives that information.

Consequential Loss means, whether under statute, contract, equity, tort (including negligence), indemnity or otherwise:

• any loss or damage that cannot be considered to arise according to the usual course of things from the relevant breach, act or omission, whether or not such loss or damage may reasonably be supposed to have been in the contemplation of the Parties at the time they entered into these Terms as the probable results of the relevant breach, act or omission; and/or
• without limiting subclause (a), any real or anticipated loss of profit, loss of benefit, loss of revenue, loss of business, loss of goodwill, loss of opportunity, loss of savings, loss of reputation, loss of use and/or loss or corruption of data.

However, the Parties agree that your obligation to pay us the Price under these Terms will not constitute “Consequential Loss”.

Consumer Law Rights has the meaning given in clause 4.1.

Disclosing Party means the Party disclosing Confidential Information to the Receiving Party.

Expenses means any disbursements, including travel and accommodation costs and third party costs, reasonably and directly incurred by us for the purpose of the provision of the Goods and Services and as otherwise outlined in Annexure 1.

Force Majeure Event means any event or circumstance which is beyond a Party’s reasonable control including but not limited to, acts of God including fire, hurricane, typhoon, earthquake, landslide, tsunami, mudslide or other catastrophic natural disaster, civil riot, civil rebellion, revolution, terrorism, insurrection, militarily usurped power, act of sabotage, act of a public enemy, war (whether declared or not) or other like hostilities, ionising radiation, contamination by radioactivity, nuclear, chemical or biological contamination, any widespread illness, quarantine or government sanctioned ordinance or shutdown, pandemic (including COVID-19 and any variations or mutations to this disease or illness) or epidemic.

Goods and Services means the goods and services to be provided by us to you under these Terms, as expressly set out in the Work Order, as adjusted in accordance with these Terms.

Intellectual Property Rights or Intellectual Property means any and all existing future rights throughout the world conferred by statute, common law, equity or any corresponding law in relation to any copyright, patents or trade marks, domain names, know-how, inventions, processes, trade secrets or Confidential Information; or circuit layout, software, computer programs, databases or source codes, including any application or right to apply, for registration of, and any improvements, enhancements or modifications of, the foregoing, whether or not registered or registrable.

Labour Support Personnel Dispatch Activation means the receipt of a call from you to commence sourcing workers for unscheduled work. The dispatch activation fee (outlined in the Schedule of Rates) will only be charged where a worker(s) is sourced. Should a request be withdrawn prior to Commencement of Shift, a fee will still be charged as per the Schedule of Rates.

Laws means all applicable laws, regulations, codes, guidelines, policies, protocols, consents, approvals, permits and licences, and any requirements or directions given by any government or similar authority with the power to bind or impose obligations on the relevant Party in connection with these Terms or the supply of Goods and Services.

Liability means any expense, cost, liability, loss, damage, claim, notice, entitlement, investigation, demand, proceeding or judgment (whether under statute, contract, equity, tort (including negligence), indemnity or otherwise), howsoever arising, whether direct or indirect and/or whether present, unascertained, future or contingent and whether involving a third party, a Party to these Terms or otherwise.

Minimum charge means a charge of minimum 4 hours of work as per the Schedule of Rates and will be charged on any or combination of the following:

• on each occasion where there is a Call-Back or Call-Out for our Personnel;
• where works are cancelled once commenced; or
• where a request for our Personnel is withdrawn less than two (2) hours prior to Commencement of Shift.

Moral Rights has the meaning given in the Copyright Act 1968 (Cth).

New Materials means all Intellectual Property developed, adapted, modified or created by or on behalf of us or you or any of your or our respective Personnel in connection with these Terms or the supply of the Goods and Services, whether before or after the date of these Terms and any improvements, modifications or enhancements of such Intellectual Property, but excludes Our Materials and your Materials.

Night Shift means where shifts are finishing after midnight and at or before 8.00 am.

Night Shift – Permanent means, where our personnel

• work night shift only during a period of engagement, or
• remain on night shift for a longer period than 4 consecutive weeks; or
• work on a night shift which does not rotate or alternate with another shift or with day work so as to give the personnel at least one third of their working time off night shift in each cycle.

Night Shift – Non-successive means, where our personnel work on a night shift which does not continue

• for at least 5 successive after or night shifts or 6 successive night shifts in a 6 day workshop ((where no more than 8 ordinary hours are worked on each shift); or
• for at least 38 ordinary hours.

Nominated Address means the address for delivery as outlined in the relevant Work Order or confirmed by you in writing.

On-Call means where our Personnel is designated as being available to attend work at short notice during a period of time outside Ordinary Hours and ordinary days of work. Where our Personnel is On-Call during a specific day / night, a fixed fee per day is applicable per Personnel as per the Schedule of Rates regardless of there being a Call-Out, in addition to any hours worked where there is a Call-Out.

Ordinary Hours (unless otherwise specified in the Work Order) means work hours between 6 am to 2 pm, Monday to Friday. Hourly loading rates apply outside of ordinary hours. Rest (meal) breaks are paid break within the Ordinary Hours.

Our Materials means all Intellectual Property which is owned by or licensed to us and any improvements, modifications or enhancements of such Intellectual Property.

Personnel means, in respect of a Party, any of its employees, consultants, suppliers, subcontractors or agents, but in respect of you, does not include us.

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

Price means the price set out in the Work Order for the provision of the Goods and Services, as adjusted in accordance with these Terms, and includes all Expenses and any deposit set out in the Work Order.

Receiving Party means the Party receiving Confidential Information from or on behalf of the Disclosing Party.

QBCC Act means the Queensland Building and Construction Commission Act 1991 (Qld).

Schedule of Rates means the schedule of rates set out in Annexure 1.

Security of Payment Legislation means the applicable legislation governing security of payment in the State or Territory where the Site is located.

Site means the site as set out in the Work Order, and includes any other property or sites adjoined to, surrounding or neighbouring the Site that may be necessary to access or use for the provision of the Goods and Services.

Specifications means any specifications for the Goods and Services, and, if applicable, as further particularised in an attachment to these Terms or the Work Order.

Stand-down day means where there is a Call-Back for our Personnel to afternoon or night shift where the Personnel has worked a previous shift (or part thereof) and is scheduled to work the following day shift. Or where a personnel is required to have a day off to enable the transition between day and night, or night and day shift. Stand-down day is charged at the rates outlined in the Schedule of Rates one (1) x 8 hour Ordinary Hours per worker effected.

Term has the meaning given in clause 13.1.

Travel Time means:

• Within scheduled work conditions –
  1. By Road – the time taken to travel (to the closest hour or part thereof) from / to the Workshop and Site. This is the physical time taken to travel, subject to traffic conditions. Where it is available and appropriate, travel time charge may be substituted with a km and toll charge where travel is direct from home to / from Site.
  2. Other than Road (Such as but not limited to Train, Flying, Ferry) – the time taken to travel from our Personnel’s home or Workshop as deemed most appropriate. This is the physical time taken to travel, subject to transportation conditions, methods and delays.
• Outside scheduled work conditions – where there is a Call-Back or Call-Out for our Personnel, travel from home to Site and return shall be charged per hour or part thereof for the duration of the time taken to travel to / from home / Site.

Variation has the meaning given in clause 6.1.

Variation Request has the meaning given in clause 6.1

Workshop means the MJK workshop in Carole Park.

Work Order means the quote (including any online quote), proposal or similar document to which these Terms are attached or incorporated by reference.

Your Items has the meaning given in clause 7.2.

Your Materials means all Intellectual Property owned or licensed by you or your Personnel before the Commencement Date (which is no connected to these Terms) and/or developed by or on behalf of you or your Personnel independently of these Terms and any improvements, modifications or enhancements of such Intellectual Property.

22. Interpretation

In these Terms, unless the context otherwise requires:

(a)             a reference to these Terms or any other document includes the document, all schedules and all annexures as novated, amended, supplemented, varied or replaced from time to time;

(b)            a reference to “Goods and Services” or “Goods or Services” includes “Goods and/or Services”;

(c)             a reference to any legislation or Law includes subordinate legislation or Law and all amendments, consolidations, replacements or re-enactments from time to time;

(d)            a reference to a person includes a natural person, body corporate, partnership, joint venture, association, government or statutory body;

(e)             a reference to a party (including a Party) to a document includes that party’s executors, administrators, successors, permitted assigns;

(f)              a reference to a covenant, obligation or agreement of two or more persons binds or benefits them jointly and severally;

(g)             a reference to time is to local time in Queensland; and

(h)            a reference to $ or dollars refers to the currency of Australia from time to time.