BACKUPP- COMMERCIAL AGREEMENT

1. Definitions

1.1 “Candidate” shall mean any Candidate placed for employment with a Client on a temporary, casual, part-time, or permanent basis.

1.2 “Client” means the person/s, entities or any person acting on behalf of and with the authority of the Client requesting the Supplier to provide the Services as specified in any proposal, quotation, order, invoice or other documentation, and:

(a) if there is more than one Client, is a reference to each Client jointly and severally; and

(b) if the Client is a partnership, it shall bind each partner jointly and severally; and

(c) if the Client is a part of a Trust, shall be bound in their capacity as a trustee; and

(d) includes the Client’s executors, administrators, successors and permitted assigns.

1.3 "Confidential Information” means information of a confidential nature whether oral, written or in electronic form including, but not limited to, this Contract, either party’s intellectual property, operational information, know-how, trade secrets, financial and commercial affairs, contracts, client information (including, but not limited to, “Personal Information” such as: name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) and pricing details.

1.4 “Contract” means the terms and conditions contained herein, together with any quotation, order, invoice or other document or amendments expressed to be supplemental to this Contract.

1.5 “Cookies” means small files which are stored on a user’s computer. They are designed to hold a modest amount of data (including Personal Information) specific to a particular client and website and can be accessed either by the web server or the client’s computer. If the Client does not wish to allow Cookies to operate in the background when using the Supplier’s website, then the Client shall have the right to enable / disable the Cookies first by selecting the option to enable / disable provided on the website, prior to making enquiries via the website.

1.6 “Fee” means the price payable (plus any GST where applicable) for the Services which includes the Placement Fee and any additional charges and disbursements associated with the Services (plus any Goods and Services Tax “GST” where applicable) as agreed between the Supplier and the Client in accordance with clause 6 of this Contract.

1.7 “GST” means Goods and Services Tax as defined within the “A New Tax System (Goods and Services Tax) Act 1999” (Cth).

1.8 “Incidental Items” means all recruitment services, documents, consulting services, advertising, advice, and recommendations or deposited incidentally by the Supplier in the course of it conducting, or supplying to the Client, any Services.

1.9 “Labour Rates” shall mean charges equivalent to the Supplier’s standard hourly rates for work done within the Supplier’s standard operating hours, and:

(a) any Services provided outside these hours will be subject to the Supplier’s hourly overtime rates, including on Saturdays and Sundays;

(b) will be billed to the Client in 15-minute increments, rounding up to the nearest 15-minute block at all times;

(c) hours specified in quotations and invoices will be reflected in real time, e.g., 3 hours and 15 minutes will be reflected as 3:25;

(d) in line with the Fair Work (Commonwealth Powers) Act 2009, Fair Work Act 2009, Labour Hire Licensing Act 2018 (VIC) and other laws regulations, Candidates are required to a paid break when working five (5) hours or more (as per the applicable award rates) – billing will continue during this time.

1.10 “Services” mean all Services supplied by the Supplier to the Client at the Client’s request from time to time.

1.11 “Supplier” means of Superino Pty Ltd trading as BACKUPPits successors and assigns or any person acting on behalf of and with the authority ofof Superino Pty Ltd trading as BACKUPP.

2. Acceptance

2.1 The Client is taken to have exclusively accepted and is immediately bound, jointly and severally, by these terms and conditions if the Client places an order for, or accepts Services provided by the Supplier.

2.2 In the event of any inconsistency between the terms and conditions of this Contract and any other prior document or schedule that the parties have entered into, the terms of this Contract shall prevail.

2.3 Any amendment to the terms and conditions contained in this Contract may only be amended in writing by the consent of both parties.

2.4 The Client acknowledges that the supply of Services on credit shall not take effect until the Client has completed a credit application with the Supplier and it has been approved with a credit limit established for the account.

2.5 In the event that the supply of Services request exceeds the Clients credit limit and/or the account exceeds the payment terms, the Supplier reserves the right to refuse delivery.

2.6 All information regarding the Candidate, whether written or verbal, is supplied in confidence and is not to be disclosed to any other party without the express written consent of the Supplier.

2.7 The Client acknowledges that once the Supplier has placed a Candidate with the Client that the Client shall then be solely responsible for the remuneration and employment conditions of that Candidate.

2.8 These Terms & Conditions are to be read in conjunction with the Supplier’s Proposal. If there are any inconsistencies between this document and the Proposal, then the terms and conditions contained in this document shall prevail.

2.9 Electronic signatures shall be deemed to be accepted by either party providing that the parties have complied with Section 9 of the Electronic Transactions (Victoria) Act 2000 or any other applicable provisions of that Act or any Regulations referred to in that Act.

3. Authorised Representative

3.1 The Client acknowledges that the Supplier shall (for the duration of the Services) liaise directly with one (1) authorised representative, and that once introduced as such to the Supplier, that person shall have the full authority of the Client to order any Services and/or to request any variation thereto on the Client’s behalf. The Client accepts that they will be solely liable to the Supplier for all additional costs incurred by the Supplier (including the Supplier’s profit margin) in providing any Services or variation/s requested thereto by the Client’s duly authorised representative.

4. Errors and Omissions

4.1 The Client acknowledges and accepts that the Supplier shall, without prejudice, accept no liability in respect of any alleged or actual error(s) and/or omission(s):

(a) resulting from an inadvertent mistake made by the Supplier in the formation and/or administration of this Contract; and/or

(b) contained in/omitted from any literature (hard copy and/or electronic) supplied by the Supplier in respect of the Services.

4.2 In the event such an error and/or omission occurs in accordance with clause 4.1, and is not attributable to the negligence and/or wilful misconduct of the Supplier; the Client shall not be entitled to treat this Contract as repudiated nor render it invalid.

4.3 In circumstances where the Client is required to place an order for Services, in writing, or otherwise as permitted by these terms and conditions, the Client is responsible for supplying correct order information such as, without limitation, measurements and quantity, when placing an order for Services (whether they are made to order Incidental Items or not) ("Client Error"). The Client must pay for all Services it orders from the Supplier notwithstanding that such Services suffer from a Client Error and notwithstanding that the Client has not taken or refuses to take delivery of such Services. The Supplier is entitled to, at its absolute discretion to waive its right under this sub-clause in relation to Client Errors.

5. Change in Control

5.1 The Client shall give the Supplier not less than fourteen (14) days prior written notice of any proposed change of ownership of the Client and/or any other change in the Client’s details (including but not limited to, changes in the Client’s name, address, contact phone or fax number/s, change of trustees,or business practice). The Client shall be liable for any loss incurred by the Supplier as a result of the Client’s failure to comply with this clause.

6. Fee and Payment

6.1 At the Supplier’s sole discretion, the Fee shall be either:

(a) as indicated on any invoice provided by the Supplier to the Client; or

(b) the Supplier’s current Fee at the date of provision of the Services as indicated on the Supplier’s Fee schedule; or

(c) the Supplier’s quoted Fee (subject to clause 6.2) which shall be binding upon the Supplier provided that the Client shall accept the Supplier’s quotation in writing within thirty (30) days.

6.2 The Supplier reserves the right to change the Feeif any material change to the specifications of the Services is requested which requires the Supplier and/or the Candidate to perform additional or varied work.Variations will be charged for on the basis of the Supplier’s quotation, and will be detailed in writing, and shown as variations on the Supplier’s invoice. The Client shall be required to respond to any variation submitted by the Supplier within ten (10) working days. Failure to do so will entitle the Supplier to add the cost of the variation to the Fee. Payment for all variations must be made in full at the time of their completion.

6.3 Time for payment for the Services being of the essence,the Fee will be payable by the Client on the date/s determined by the Supplier, which may be:

(a) the date specified on any invoice or other form as being the date for payment; or

(b) failing any notice to the contrary, the date which is seven (7) days following the date of any invoice given to the Client by the Supplier.

6.4 Payment may be made by electronic/on-line banking, credit card (a surcharge may apply per transaction), or by any other method as agreed to between the Client and the Supplier.

6.5 The Supplier may in its discretion allocate any payment received from the Client towards any invoice that the Supplier determines and may do so at the time of receipt or at any time afterwards. On any default by the Client the Supplier may re-allocate any payments previously received and allocated. In the absence of any payment allocation by the Supplier, payment will be deemed to be allocated in such manner as preserves the maximum value of the Supplier’s Purchase Money Security Interest (as defined in the PPSA) in the Services.

6.6 The Client shall not be entitled to set off against, or deduct from the Fee, any sums owed or claimed to be owed to the Client by the Supplier nor to withhold payment of any invoice because part of that invoice is in dispute. Once in receipt of an invoice for payment, if any part of the invoice is in dispute, then the Client must notify the Supplier in writing within three (3) business days, the invoice shall remain due and payable for the full amount, until such time as the Supplier investigates the dispute claim, no credit shall be passed for refund until the review is completed. Failure to make payment may result in the Supplier placing the Client’s account into default and subject to default interest in accordance with clause 19.1.

6.7 Unless otherwise stated the Fee does not include GST. In addition to the Fee, the Client must pay to the Supplier an amount equal to any GST the Supplier must pay for any supply by the Supplier under this or any other agreement for providing the Supplier’s Services. The Client must pay GST, without deduction or set off of any other amounts, at the same time and on the same basis as the Client pays the Fee. In addition, the Client must pay any other taxes and duties that may be applicable in addition to the Fee except where they are expressly included in the Fee.

6.8 The Client acknowledges and agrees that the Client’s obligations to the Supplier for the provision of Services shall not cease until:

(a) the Client has paid the Supplier all amounts owing for the particular Services; and

(b) the Client has met all other obligations due by the Client to the Supplier in respect of all Contracts between the Supplier and the Client.

6.9 Receipt by the Supplier of any form of payment other than cash shall not be deemed to be payment until that form of payment has been honoured, cleared or recognised and until then the Supplier’s ownership or rights in respect of the Services, and this Contract, shall continue.

7. Provision of the Services

7.1 The Supplier undertakes to use its best endeavours to provide reliable Services, and supply suitable, competent Candidate’s based on the Client’s requirements. The Client agrees to clearly instruct the Supplier of its requirements for Candidate’s and to notify the Supplier immediately if there is any change in those requirements, to duties or system of work.

7.2 Any time specified by the Supplier for provision of the Services is an estimate only and the Supplier will not be liable for any loss or damage incurred by the Client as a result of any delay. However, both parties agree that they shall make every endeavour to enable the Services to be provided at the time and place as was arranged between both parties. In the event that the Supplier is unable to provide the Services as agreed solely due to any action or inaction of the Client then the Supplier shall be entitled to charge a reasonable fee for re-providing the Services at a later time and date.

7.3 The Client agrees not to attempt to employ any Candidate placed on a temporary assignment by the Supplier without the express written consent of the Supplier and an agreed fee paid. Where the Client fails to comply with this provision, the Supplier reserves the right to charge the Client a fee equal to one hundred and eight (180) days at the Supplier’s standard hire rate.

7.4 The Client acknowledges and accepts that should the Client agree to a Candidate placed on a long-term assignment at a reduced rate and the assignment time is consequently shorter than agreed, then the Supplier shall reserve the right to invoice the Client the difference between the agreed long-term assignment and the rate appropriate for the length of the actual assignment.

8. Permanent Placements

8.1 Unless otherwise agreed in writing between the parties, the fee for the permanent placement of a Candidate (“Placement Fee”) shall be calculated as twelve and a half percent (12.5%) of the Candidate’s gross equivalent annualised remuneration package (which will include base salary as well as any other benefits to the Candidate such as commissions, bonus allowances, etc.). Where fringe benefits apply, such as a car allowance (which shall be valued at a nominal amount of fifteen thousand dollars ($15,000.00) per annum), they are regarded as a part of a Candidate’s remuneration, and this factor will be included when assessing the Placement Fee.

8.2 Once the Candidatehas been placed as an employee with the Client, the Client is deemed to be the Candidate’s employer and is solely responsible for the Candidate (including remuneration and employment conditions). Subject to clause 10.1, the Supplier shall have no liability or obligations in respect of the Candidate, including without limitation, in respect of the termination of the Candidate for any reason by the Client.

9. Temporary Assignments

9.1 Services

(a) A minimum assignment length of four (4) hours is applicable to all Candidate’s supplied by the Supplier to the Client.

9.2 Fee

(a) The Supplier must be advised by the Client of any specific site or project allowances which may be applicable. All such allowances (including, but not limited to, bonuses, meal, vehicle/travel, accommodation, tool or other allowances and entitlements) shall be on-charged to the Client accordingly.

(b) Any Client-authorised travel during work hours will be invoiced at the Supplier’s hourly rate. All conditions will be invoiced by the Supplier in accordance with the relevant Work Place agreements.

(c) Fees include wages, bonuses, commission (if any) and allowances for all related on-costs where applicable under relevant legislation (e.g., payroll, taxes, training,provisions for annual leave, bereavement leave, sick leave, accident compensation and ACC levies, statutory holidays). Under no circumstances shall the Client make any payment directly to the Candidate.

9.3 Client’s Responsibilities/Agreements

(a) A job confirmation must be completed for each and every assignment.

(b) The Client agrees that they shall supply to the Supplier (by e-mail by 12:00pm each Monday) a timesheet, authorised by an appropriate person, to enable the Supplier to pay the Candidate when due.

(c) It is the responsibility of the Client to:

(i) provide Candidate’s with workplace specific and job specific induction. This induction is to be completed before the Candidate commences work with the Client and shall be at the Client’s expense; and

(ii) provide a safe working environment and safe working conditions (which includes having in place a health and safety policy and plan and a hazard identification and control policy), and comply with all statutory and other obligations that are applicable pursuant to Australian law (including, but not limited to, the occupational health and safety (OHS) laws, and amendments thereto) applicable to employers and otherwise to treat Candidate’s as if they were employed by the Client; and

(iii) provide Candidate’s with appropriate information, instruction, training, and supervision to enable them to work safely and to a satisfactory standard.

(d) The Client agrees that it will immediately notify the Supplier of any incidents that will require the Supplier to take further action (e.g., any injury sustained by the Candidate, near misses or any other incident involving the Candidate).

(e) The Client acknowledges that they remain responsible for controlling the manner, time and place in which the Candidate shall carry out their duties as assigned by the Client and that in doing so the Client shall be liable for all acts and omissions of the Candidate the same as they would be for any of their own employees.

(f) Further to clause 9.3(c)(ii), the Client agrees that all sites will comply with any occupational health and safety guidelines and the OHS Act relating to the sites and any other relevant safety standards or legislation. In addition, the Supplier (nor any Candidate supplied by the Supplier) has not and will not at any time assume any obligation as the Client’s agent or otherwise which may be imposed upon the Client from time to time pursuant to the OHS Act arising out of the engagement.

9.4 Insurance

(a) The Candidate is not covered under the insurance policy of the Supplier. In the event the Candidate is required to work with valuables, cash, cars, machinery, documentation, or equipment whether on or off the premises of the Client, the Client will immediately make arrangements for the Candidate to be endorsed on the insurance policy of the Client insurer with appropriate cover for the specific circumstances. Under no circumstances will the Supplier be held liable for any losses incurred as a result of the Client’s failure to insure the Candidate.

(b) The Candidate shall not be required to use their own motor vehicle during an assignment for the Client’s purposes. Where the Candidate uses the Client’s vehicle, the Client will be liable for all loss or damage which is caused or suffered.

10. Replacement Guarantee

10.1 Permanent Placement

(a) In the event the Candidate resigns, or employment is terminated for any reason other than redundancy, company closure or significant change in duties, before the expiration of three (3) months from the commencement of employment, the Supplier will use their best endeavours to provide the Client with another Candidate at no additional charge, subject to the conditions set out in clause (b) and the Client’s full compliance with the Supplier’s terms and conditions herein.

(b) The conditions applicable to the guarantee given by clause 10.1 are that:

(i) the Client must notify the Supplier within seven (7) days of the Candidate leaving the Client’s employ, or the Client becoming aware that the Candidate intends to leave the Client’s employ, whichever occurs first;

(ii) the Placement Fee will be adjusted accordingly where the remuneration package differs from the initial placement;

(iii) if a replacement Candidate cannot be found a credit will be held for a period of twelve (12) months from the date the Supplier was first notified of the resignation/termination.

11. Introduction of the Candidate

11.1 The temporary and/or permanent employment of the Candidate is strictly confidential between the Client and the Supplier, and any subsequent employment of the Candidate on a permanent or part-time basis (including an independent service contract) within six (6) months from of the termination of the most recent referral assignment and/or placement shall impose a liability on the Client to pay the Supplier the appropriate Placement Fee in accordance with the Supplier’s current standard Fee structure.

11.2 Clause 11.1 shall also be applicable where any employment of the Candidate results from the Client passing on the introduction of the Candidate to any other company.

12. The Supplier’s Disclaimer

12.1 The Supplier endeavours to provide accurate background on Candidate’s qualifications and experience. However, these details are based on information made available by Candidate’s and their referees. Therefore, no responsibility can be accepted by the Supplier for errors, omissions, or incorrect conclusions.

12.2 Whilst the Supplier makes every effort to ensure a Candidate’s integrity, and only submits Candidate’s that are suitable for the Client’s needs, no liability will be accepted for any loss, damage, or other costs, irrespective of how they are caused, or which a Client may suffer, or for which a Client may become liable, arising out of, or in connection with, the introduction of a Candidate to a Client company (including, but not limited to, where a Candidate is required as part of any assignment to handle money’s, securities, valuables, Confidential Information or Personal Information).

13. Indemnity

13.1 The Client undertakes to indemnify the Supplier against any loss or damages suffered and/or any costs incurred by the Supplier as a result of any direct or indirect consequence of the employment of Candidate’s including, but not limited to, circumstances involving contributory negligence.

13.2 In no circumstances shall the Supplier be liable for any personal injury resulting in injury or death, loss and/or damage or expense arising out of or caused by any act or omission of a Candidate whether or not any such act or omission is negligent, and the Client acknowledges and agrees to indemnify Candidate’s against all such liability whether alleged or proved.

13.3 The Client agrees to indemnify the Supplier against any claim whatsoever by the Candidate in respect of working conditions, harassment or discrimination allegations, or any other issue arising out of the workplace managed by the Client.

13.4 The Client acknowledges and agrees that any alleged claim or accusation of theft, dishonesty or any other impropriety made against a permanent or temporary Candidate is to be treated as a separate issue to any monies owed by the Client to the Supplier, so deductions, set offs or withholding of payment will not be accepted under any circumstances. The Supplier has procedures and policies in place to deal with such occurrences and these must be followed in every instance. Any offer made to the Client resultant from a claim is not an admission of liability on the behalf of the Supplier or its employees.

14. Confidentiality

14.1 The Client shall ensure that the Candidate are accountable to the Client’s company policies in respect to the protection of the Client’s Confidential Information and Intellectual Property. The Supplier shall not be liable for any claim in respect to the Client’s Confidential Information and Intellectual Property arising from the actions of the placed Candidate.

14.2 The Client assumes liability for all loss or damage suffered by the Supplier as a result of breach of confidentiality undertaken by itself, or its employees or agents.

14.3 All information will be subject to the provisions of the Privacy Act 1988, and its variations as determined.

14.4 The obligations of confidentiality shall survive the finalisation or discontinuance of any Contract between the Client and the Supplier.

15. Compliance with Laws

15.1 The Client and the Supplier shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Services.

Modern Slavery

15.2 For the purposes of clauses 15.2 to 15.7:

(a) “Act” means the Modern Slavery Act 2018 (cth)

(b) “Modern Slavery”, “Modern Slavery Statement” and “Reporting Entity” have the meanings given by the Act.

15.3 If the Client is a Reporting Entity, it shall comply with all of its obligations under the Act.

15.4 Whether the Client is a Reporting Entity or not, the Client shall:

(a) use reasonable endeavours to identify, assess and address risks of Modern Slavery practices in its operations and supply chains;

(b) use its reasonable endeavours to ensure that the personnel responsible for managing the operations and supply chains used for the purposes of the Contract have undertaken suitable training to identify and report Modern Slavery;

(c) use its reasonable endeavours to ensure that if at any time the Client becomes aware of Modern Slavery practices in its operations and supply chains, the Client must as soon as reasonably

(d) provide to the Supplier a copy of any Modern Slavery Statement that it submits under the Act within seven (7) days of so doing; and

(e) within seven (7) days of the Supplier’s request (or such longer period as the Supplier agrees), provide to the Supplier any information or assistance reasonable requested by the Supplier;

(i) concerning the Client’s compliance with the Act;

(ii) concerning the Client’s operations and supply chains;

(iii) to enable the Supplier to prepare a Modern Slavery Statement or otherwise comply with the Act; or

(iv) to enable the Supplier to assess and address risks of Modern Slavery practices in its operations and supply chains.

15.5 The parties agree that in the circumstances a breach arises pursuant to this clause or the terms of the Act, the parties will try and resolve the breach by way of remediation and the Supplier will be able to terminate the Contract for any breach by the Client.

15.6 The Client warrants that any information supplied to the Supplier is true and accurate and may be relied upon for the purposes of the Act.

15.7 The Client shall indemnify the Supplier against any loss or liability suffered by the Supplier as a result of the Client’s breach of this clause 15.

16. Personal Property Securities Act 2009 (“PPSA”)

16.1 In this clause financing statement, financing change statement, security agreement, and security interest has the meaning given to it by the PPSA.

16.2 Upon assenting to these terms and conditions in writing the Client acknowledges and agrees that these terms and conditions constitute a security agreement for the purposes of the PPSA and creates a security interest in:

(a) all Incidental Items previously supplied by the Supplier to the Client;

(b) all Incidental Items will be supplied in the future by the Supplier to the Client; and

(c) all the Client’s present and after acquired property being a charge, including anything in respect of which the Client has at any time a sufficient right, interest or power to grant a security interest in for the purposes of securing repayment of all monetary obligations of the Client to the Supplier for Services – that have previously been provided and that will be provided in the future by the Supplier to the Client.

16.3 The Client undertakes to:

(a) promptly sign any further documents and/or provide any further information (such information to be complete, accurate and up-to-date in all respects) which the Supplier may reasonably require to;

(i) register a financing statement or financing change statement in relation to a security interest on the Personal Property Securities Register;

(ii) register any other document required to be registered by the PPSA; or

(iii) correct a defect in a statement referred to in clause 16.3(a)(i) or 16.3(a)(ii);

(b) indemnify, and upon demand reimburse, the Supplier for all expenses incurred in registering a financing statement or financing change statement on the Personal Property Securities Register established by the PPSA or releasing any Incidental Items charged thereby;

(c) not register a financing change statement in respect of a security interest without the prior written consent of the Supplier;

(d) not register, or permit to be registered, a financing statement or a financing change statement in relation to the Incidental Itemsin favour of a third party without the prior written consent of the Supplier.

16.4 The Supplier and the Client agree that sections 96, 115 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.

16.5 The Client waives their rights to receive notices under sections 95, 118, 121(4), 130, 132(3)(d) and 132(4) of the PPSA.

16.6 The Client waives their rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.

16.7 Unless otherwise agreed to in writing by the Supplier, the Client waives their right to receive a verification statement in accordance with section 157 of the PPSA.

16.8 The Client must unconditionally ratify any actions taken by the Supplier under clauses 16.3 to 16.5.

16.9 Subject to any express provisions to the contrary (including those contained in this clause 16),nothing in these terms and conditions is intended to have the effect of contracting out of any of the provisions of the PPSA.

17. Security and Charge

17.1 In consideration of the Supplier agreeing to supply Services, the Client charges all of its rights, title and interest (whether joint or several) in any land, realty or other assets capable of being charged, owned by the Client either now or in the future, and the Client grants a security interest in all of its present and after-acquired property for the purposes of, including but not limited to registering the Supplier’s security interest over the Client on the PPSA, to secure the performance by the Client of its obligations under these terms and conditions (including, but not limited to, the payment of any money).

17.2 The Client indemnifies the Supplier from and against all the Supplier’s costs and disbursements including legal costs on a solicitor and own client basis incurred in exercising the Supplier’s rights under this clause.

17.3 The Client irrevocably appoints the Supplier and each director of the Supplier as the Client’s true and lawful attorney/s to perform all necessary acts to give effect to the provisions of this clause 17 including, but not limited to, signing any document on the Client’s behalf.

18. Defects, Warranties and the Competition and Consumer Act 2010 (CCA)

18.1 The Client must inspect the Supplier’s Services on completion of the Services, and must within seven (7) days notify the Supplier in writing of any evident defect in the Services or Incidental Items provided (including the Supplier’s workmanship) or of any other failure by the Supplier to comply with the description of, or quote for, the Services which the Supplier was to supply. The Client must notify any other alleged defect in the Supplier’s Services or Incidental Items as soon as is reasonably possible after any such defect becomes evident. Upon such notification the Client must allow the Supplier to review the Services or Incidental Items that were provided.

18.2 Under applicable State, Territory and Commonwealth Law (including, without limitation the CCA), certain statutory implied guarantees and warranties (including, without limitation the statutory guarantees under the CCA) may be implied into these terms and conditions (Non-Excluded Guarantees).

18.3 The Supplier acknowledges that nothing in these terms and conditions purports to modify or exclude the Non-Excluded Guarantees.

18.4 Except as expressly set out in these terms and conditions or in respect of the Non-Excluded Guarantees, the Supplier makes no warranties or other representations under these terms and conditions including, but not limited to, the quality or suitability of the Services. The Supplier’s liability in respect of these warranties is limited to the fullest extent permitted by law.

18.5 If the Client is a consumer within the meaning of the CCA, the Supplier’s liability is limited to the extent permitted by section 64A of Schedule 2.

18.6 If the Client is not a consumer within the meaning of the CCA, the Supplier’s liability for any defective Services is:

(a) limited to the value of any express warranty or warranty card provided to the Client by the Supplier at the Supplier’s sole discretion;

(b) otherwise negated absolutely.

18.7 Notwithstanding clauses 18.1 to 18.6 but subject to the CCA, the Supplier shall not be liable for any defect or damage which may be caused or partly caused by or arise as a result of:

(a) interference with the Services by the Client or any third party without the Supplier’s prior approval;

(b) the Client failing to follow any instructions or guidelines provided by the Supplier;

(c) fair wear and tear, any accident, or act of God.

19. Default and Consequences of Default

19.1 Interest on overdue invoices shall accrue daily from the date when payment becomes due, until the date of payment, at a rate of two and a half percent (2.5%) per calendar month (and at the Supplier’s sole discretion such interest shall compound monthly at such a rate) after as well as before any judgment.

19.2 If the Client owes the Supplier any money, the Client shall indemnify the Supplier from and against all costs and disbursements:

(a) incurred; and/or

(b) which would be incurred and/or

(c) for which by the Client would be liable;

in regard to legal costs on a solicitor and own client basis, internal administration fees, the Supplier’s Contract fees owing for breach of these terms and conditions’, including, but not limited to, contract default fees and/or recovery costs (if applicable), as well as bank dishonour fees.

19.3 Further to any other rights or remedies the Supplier may have under this Contract, if a Client has made payment to the Supplier, and the transaction is subsequently reversed, the Client shall be liable for the amount of the reversed transaction, in addition to any further costs incurred by the Supplier under this clause 19 where it can be proven that such reversal is found to be illegal, fraudulent or in contravention to the Client’s obligations under this Contract.

19.4 Without prejudice to the Supplier’s other remedies at law the Supplier shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to the Supplier shall, whether or not due for payment, become immediately payable if:

(a) any money payable to the Supplier becomes overdue, or in the Supplier’s opinion the Client will be unable to make a payment when it falls due;

(b) the Client has exceeded any applicable credit limit provided by the Supplier;

(c) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or

(d) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

20. Cancellation

20.1 Without prejudice to any other remedies the Supplier may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions the Supplier may suspend or terminate the supply of Services to the Client. The Supplier will not be liable to the Client for any loss or damage the Client suffers because the Supplier has exercised its rights under this clause.

20.2 The Supplier may cancel any contract(Iin written 90 day of notice) to which these terms and conditions apply or cancel delivery of Services at any time before the Services are commenced by giving written notice to the Client. On giving such notice the Supplier shall repay to the Client any money paid by the Client for the Services. The Supplier shall not be liable for any loss or damage whatsoever arising from such cancellation.

20.3 In the event that the Client cancels delivery of the Services(in written with 90days notice , with valid reason) the Client shall be liable for any and all loss incurred (whether direct or indirect) by the Supplier as a direct result of the cancellation (including, but not limited to, any loss of profits).

21. Privacy Policy

21.1 All emails, documents, images or other recorded information held or used by the Supplier is Personal Information, as defined and referred to in clause 0, and therefore considered Confidential Information. The Supplier acknowledges its obligation in relation to the handling, use, disclosure and processing of Personal Information pursuant to the Privacy Act 1988 (“the Act”) including the Part IIIC of the Act being Privacy Amendment (Notifiable Data Breaches) Act 2017 (NDB) and any statutory requirements, where relevant in a European Economic Area (“EEA”), under the EU Data Privacy Laws (including the General Data Protection Regulation “GDPR”) (collectively, “EU Data Privacy Laws”). The Supplier acknowledges that in the event it becomes aware of any data breaches and/or disclosure of the Clients Personal Information, held by the Supplier that may result in serious harm to the Client, the Supplier will notify the Client in accordance with the Act and/or the GDPR. Any release of such Personal Information must be in accordance with the Act and the GDPR (where relevant) and must be approved by the Client by written consent, unless subject to an operation of law.

21.2 Notwithstanding clause 21.1, privacy limitations will extend to the Supplier in respect of Cookies where the Client utilises the Supplier’s website to make enquiries. The Supplier agrees to display reference to such Cookies and/or similar tracking technologies, such as pixels and web beacons (if applicable), such technology allows the collection of Personal Information such as the Client’s:

(a) IP address, browser, email client type and other similar details;

(b) tracking website usage and traffic; and

(c) reports are available to the Supplier when the Supplier sends an email to the Client, so the Supplier may collect and review that information (“collectively Personal Information”)

If the Client consents to the Supplier’s use of Cookies on the Supplier’s website and later wishes to withdraw that consent, the Client may manage and control the Supplier’s privacy controls via the Client’s web browser, including removing Cookies by deleting them from the browser history when exiting the website.

21.3 The Client agrees for the Supplier to obtain from a credit reporting body (CRB) a credit report containing personal credit information (e.g., name, address, D.O.B, occupation, driver’s license details, electronic contact (email, Facebook or Twitter details), medical insurance details or next of kin and other contact information (where applicable), previous credit applications, credit history) about the Client in relation to credit provided by the Supplier.

21.4 The Client agrees that the Supplier may exchange information about the Client with those credit providers and with related body corporates for the following purposes:

(a) to assess an application by the Client; and/or

(b) to notify other credit providers of a default by the Client; and/or

(c) to exchange information with other credit providers as to the status of this credit account, where the Client is in default with other credit providers; and/or

(d) to assess the creditworthiness of the Client including the Client’s repayment history in the preceding two (2) years.

21.5 The Client consents to the Supplier being given a consumer credit report tocollect personal credit information relating to any overdue payment on commercial credit.

21.6 The Client agrees that personal credit information provided may be used and retained by the Supplier for the following purposes (and for other agreed purposes or required by):

(a) the provision of Services; and/or

(b) analysing, verifying and/or checking the Client’s credit, payment and/or status in relation to the provision of Services; and/or

(c) processing of any payment instructions, direct debit facilities and/or credit facilities requested by the Client; and/or

(d) enabling the collection of amounts outstanding in relation to the Services.

21.7 The Supplier may give information about the Client to a CRB for the following purposes:

(a) to obtain a consumer credit report;

(b) allow the CRB to create or maintain a credit information file about the Client including credit history.

21.8 The information given to the CRB may include:

(a) Personal Information as outlined in 0above;

(b) name of the credit provider and that the Supplier is a current credit provider to the Client;

(c) whether the credit provider is a licensee;

(d) type of consumer credit;

(e) details concerning the Client’s application for credit or commercial credit (e.g. date of commencement/termination of the credit account and the amount requested);

(f) advice of consumer credit defaults (provided the Supplier is a member of an approved OAIC External Disputes Resolution Scheme), overdue accounts, loan repayments or outstanding monies which are overdue by more than sixty (60) days and for which written notice for request of payment has been made and debt recovery action commenced or alternatively that the Client no longer has any overdue accounts and the Supplier has been paid or otherwise discharged and all details surrounding that discharge (e.g. dates of payments);

(g) information that, in the opinion of the Supplier, the Client has committed a serious credit infringement;

(h) advice that the amount of the Client’s overdue payment is equal to or more than one hundred and fifty dollars ($150).

21.9 The Client shall have the right to request (by e-mail) from the Supplier:

(a) a copy of the Personal Information about the Client retained by the Supplier and the right to request that the Supplier correct any incorrect Personal Information; and

(b) that the Supplier does not disclose any Personal Information about the Client for the purpose of direct marketing.

21.10 TheSupplier will destroy Personal Information upon the Client’s request (by e-mail) or if it is no longer required unless it is required in order to fulfil the obligations of this Contract or is required to be maintained and/or stored in accordance with the law.

21.11 The Client can make a privacy complaint by contacting the Suppliervia e-mail. The Supplier will respond to that complaint within seven (7) days of receipt and will take all reasonable steps to make a decision as to the complaint within thirty (30) days of receipt of the complaint. In the event that the Client is not satisfied with the resolution provided, the Client can make a complaint to the Information Commissioner at www.oaic.gov.au.

22. Service of Notices

22.1 Any written notice given under this Contract shall be deemed to have been given and received:

(a) by handing the notice to the other party, in person;

(b) by leaving it at the address of the other party as stated in this Contract;

(c) by sending it by registered post to the address of the other party as stated in this Contract;

(d) if sent by facsimile transmission to the fax number of the other party as stated in this Contract (if any), on receipt of confirmation of the transmission;

(e) if sent by email to the other party’s last known email address.

22.2 Any notice that is posted shall be deemed to have been served, unless the contrary is shown, at the time when by the ordinary course of post, the notice would have been delivered.

23. Trusts

23.1 If the Client at any time upon or subsequent to entering in to the Contract is acting in the capacity of trustee of any trust (“Trust”) then whether or not the Supplier may have notice of the Trust, the Client covenants with the Supplier as follows:

(a) the Contract extends to all rights of indemnity which the Client now or subsequently may have against the Trust and the trust fund;

(b) the Client has full and complete power and authority under the Trust to enter into the Contract and the provisions of the Trust do not purport to exclude or take away the right of indemnity of the Client against the Trust or the trust fund. The Client will not release the right of indemnity or commit any breach of trust or be a party to any other action which might prejudice that right of indemnity;

(c) the Client will not without consent in writing of the Supplier (the Supplier will not unreasonably withhold consent), cause, permit, or suffer to happen any of the following events:

(i) the removal, replacement or retirement of the Client as trustee of the Trust;

(ii) any alteration to or variation of the terms of the Trust;

(iii) any advancement or distribution of capital of the Trust; or

(iv) any resettlement of the trust property.

24. General

24.1 The failure by either party to enforce any provision of these terms and conditions shall not be treated as a waiver of that provision, nor shall it affect that party’s right to subsequently enforce that provision. If any provision of these terms and conditions shall be invalid, void, illegal or unenforceable the validity, existence, legality, and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.

24.2 These terms and conditions and any contract to which they apply shall be governed by the laws ofVictoria, the state in which the Supplier has its principal place of business and are subject to the jurisdiction of thecourts in that state.

24.3 Subject to clause 18, the Supplier shall be under no liability whatsoever to the Client for any indirect and/or consequential loss and/or expense (including loss of profit) suffered by the Client arising out of a breach by the Supplier of these terms and conditions (alternatively the Supplier’s liability shall be limited to damages which under no circumstances shall exceed the Fee of the Services).

24.4 The Supplier may licence and/or assign all or any part of its rights and/or obligations under this Contract without the Client’s consent.

24.5 The Client cannot licence or assign without the written approval of the Supplier.

24.6 The Supplier may elect to subcontract out any part of the Services but shall not be relieved from any liability or obligation under this Contract by so doing. Furthermore, the Client agrees and understands that they have no authority to give any instruction to any of the Supplier’s sub-contractors without the authority of the Supplier.

24.7 The Client agrees that the Supplier may amend their general terms and conditions for subsequent future contracts with the Client by disclosing such to the Client in writing. These changes shall be deemed to take effect from the date on which the Client accepts such changes, or otherwise at such time as the Client makes a further request for the Supplier to provide Services to the Client.

24.8 Neither party shall be liable for any default due to any act of God, war, terrorism, strike, lock-out, industrial action, fire, flood, storm, national or global pandemics and/or the implementation of regulation, directions, rules, or measures being enforced by Governments, including, but not limited to, any Government imposed border lockdowns, etc, (“Force Majeure”) or other event beyond the reasonable control of either party.This clause does not apply to a failure by the Client to make a payment to the Supplier.

24.9 Both parties warrant that they have the power to enter into this Contract and have obtained all necessary authorisations to allow them to do so, they are not insolvent and that this Contract creates binding and valid legal obligations on them.

24.10 The rights and obligations of the parties will not merge on completion of any transaction under this Contract, and they will survive the execution and delivery of any assignment or other document entered, for the purpose of, implementing any transaction under this Contract.