Calamity - Terms and Conditions for Supply/Commission/Installation of Works for Khaos Group Under Order of Purchase

Definitions

Company means Khaos Group PL ACN 142 954 185 as trustee for the Khaos Group Unit Trust ABN 52 797 025 209.

Goods and Services means, respectively, the goods and services described in this Purchase Order.

Latent Conditions means all conditions and characteristics of the site and its surrounds including below ground conditions, all natural and artificial things, services, asbestos, contamination, and other environmentally hazardous substances, concrete cracking and spalling, facilities, utilities and services on and within the surface and, if the site includes a building, on and within the building (including those things obscured behind walls, ceilings and beneath the floor).

Program means the written statement showing the dates by which, or the times within which, the various stages or portions of the Goods and/or Services are to be supplied or completed.

Site means any site, location, home, commercial or industrial premises as indicated by the company.

1 Supply

(a) The Goods and Services shall be supplied by the Supplier to the Company strictly in accordance with the terms set out in this Purchase Order and no alteration shall be made to these terms without the written authorisation of the Company.
(b) The terms Goods and Services shall be read and applied to either the Goods or the Services, or both, which are the subject of this Purchase Order, as may be required.
(c) The Supplier must:
(i) pay all costs (including any levies, duties or taxes) associated with the manufacture, importation, packaging, storage, transportation, delivery and installation (if required by the Company), of Goods supplied; and
(ii) in relation to the provision of Services to the Company, perform those services in a professional manner to a standard required by the Company and with all due care and skill.

2 Time and Program

The Supplier must:
(a) supply the Goods and Services by the date (or dates) specified in the Program. Should any change in delivery date (or dates) be proposed by the Supplier for whatever reason, immediate written notice shall be given to the Company who may in its absolute discretion accept or reject the proposal.
(b) ensure that the Goods and Services are supplied in accordance with the approved Program. The Supplier acknowledges that it is of paramount importance that Goods and Services be delivered by the Supplier so as to permit:
(i) the Company to provide its services; and
(ii) the Company to comply with any obligations it may have to clients, land owners and other third parties.
(c) The Supplier must supply the Goods and Services in accordance with the Program.
(d) The Supplier must not, without reasonable cause, depart from the Program.

3 Supplier Obligations

The Supplier must:
(a) comply with any reasonable directions given by the Company from time to time in respect of the nature and scope of Goods and Services to be supplied;
(b) observe all applicable policies and procedures of the Company;
(c) act in good faith in all dealings with the Company and any of the entities with whom the Company deals;
(d) ensure that all employees, agents and contractors engaged to provide goods and services (collectively, the “Employees”) are competent and have the skills, experience and appropriate licences and approvals required to perform the services to the standard required by the Company and ensure that Employees:
(i) immediately report any act, omission or circumstance of any party to the Company or the Company’s authorised representative that is contrary to the standards, principles and expectations of the Company, and
(ii) assume responsibility for and indemnify the Company against the acts or omissions of the Employees in respect of the supply of Goods and Services to the Company.

4 Site

(a) The Supplier acknowledges that access to or possession of the Site or parts of the Site:
(i) will not be exclusive and that there may be other contractors, agents, employees, and users accessing the Site for any purpose (including for the purpose of performing work on the site); and
(ii) may be the subject of conditions and restrictions of land owners.
(b) The Supplier shall;
(i) cooperate with contractors, agents, employees, and users and must attempt to minimise the impact of the supply of Goods and Services on any land owners and on any work being performed by other contractors or users of the Site;
(ii) not make any claim against the Company and shall have no entitlement as a consequence of any other contractors or users being on the Site or performing work at the same time as the Supplier or arising from the conditions and requirements of land owners;
(iii) supply the Goods and Services in such manner, and will comply with any directions of the Company so as, to the extent possible, comply with and enable the Company to comply with any Site access arrangements; and
(iv) provide and erect, at its own cost, all fencing and/or access control as required by the Site or by the Company.
(c) The Supplier:
(i) bears all risk associated with any conditions on the Site, including any Latent Conditions;
(ii) agrees to perform all work and provide all materials necessary to overcome any Latent Conditions at its own cost so that the Goods and Services are supplied for the Price and without an extension of time; and
(iii) shall have no entitlement (including, but not limited to, an extension of time or costs) arising from the existence of any latent Conditions, whether or not the Latent Conditions could have been reasonably been anticipated at the date of this Purchase Order.

5 Supplier’s Default

If the Supplier fails to comply with any condition contained in this Purchase Order, or if the Company reasonably determines that Goods delivered or Services provided by Supplier are defective in material or workmanship (including any installation requirements of the Company) or otherwise fail to meet the Company’s requirements, the Company may at its sole discretion, at any time from then on and without affecting or limiting any of its other rights or remedies:
(a) refuse Goods or Services provided reject those goods or services and the Supplier must repay on demand all moneys paid by the Company to the Supplier for those goods or services;
(b) procure similar goods or services elsewhere.
(c) elect to accept those goods or services and recover from Supplier damages suffered by reason of Supplier’s failure to deliver the Goods or provide Services in accordance with this Purchase Order, and
the Supplier shall be liable for any additional costs or expenses incurred by the Company as a consequence of the Supplier’s default, including but not limited to, costs or expenses incurred by the Company in returning, correcting or replacing any defective or faulty Goods or Services.

6 Property in the Goods

Title in the Goods delivered shall pass from the Supplier to the Company upon acceptance of the goods by the Company and shall remain at the risk of the Supplier.
Any inspection carried out by the Company shall be without prejudice to any rights the Company may have in respect of a breach of the Supplier’s warranties in accordance with clause 8 of this Purchase Order.
Where the Supplier conducts any repair and/or maintenance activities in respect of the Goods or Services, the Supplier will be responsible for any loss of or damage to the Goods as a result of such maintenance or repair.

6A Risk

Risk of any loss, damage or theft of the Equipment will remain with the Supplier at all times, including during delivery, installation at the Site, maintenance and if required, removal from the Site.

7 Inspection and return

Where, upon inspection by the Company, the Goods or Services are not acceptable to the Company, the Company may at the Supplier’s expense:
(a) in relation to Goods:
(i) return the Goods to the Supplier; and
(ii) at its election, deduct from any money payable to the Supplier, under this Purchase Order or any other contract or agreement between the Company and the Supplier, the cost of returning the Goods; and
(b) in relation to Services:
(i) request that the Supplier rectify the Services so that they are acceptable to the Copmany; or
(ii) engage another supplier for the purpose of completing the Services.
Acceptance of delivery, or payment for the Goods or Services by the Company does not constitute an agreement that the Goods or Services meet the requisite standards.

8 Suppliers warranties in relation to Goods and Services

The Supplier represents and warrants to the Company that:
(a) all Goods and Services provided shall:
(i) comply with the Company’s specifications, drawings, samples and the Purchase Order;
(ii) comply with all applicable laws, legislation, regulations and all applicable standards and codes (including but not limited to Australian standards, the Building Code of Australia and the National Code of Practice for the Construction Industry and, if applicable, the Australian Government Building and Construction OHS Accreditation Scheme established by the Building and Construction Industry Improvement Act 2005;
(iii) comply with any warranties or guarantees contained in the Purchase Order or ordinarily supplied by the Supplier or the manufacturer of the Goods;
(iv) be free of all liens, charges and encumbrances; and
(v) be in good order, condition and workmanship and of good merchantable quality and fit and sufficient for the purpose intended;
(b) it is the legal and beneficial owner of the Goods it is providing;
(c) it has the necessary skills, resources and experience to supply the Goods and Services;
(d) it has all intellectual property rights (including any patents, trade marks and copyright) necessary to supply the Goods and Services and that the Goods and Services will not infringe any patent, trade mark, copyright or other intellectual property rights or moral rights of any person; and
(e) it is practicable to complete the Services in the manner envisaged and in the time required in the Program.
Notwithstanding the above, any special warranty or service guarantee applicable to the Goods or Services is not revoked or varied by this clause.

9 Principal Contractor

(a) Without limiting the Supplier ’s obligations under this Purchase Order, where pursuant to the NSW Occupational Health and Safety Regulation 2001 a ‘principal contractor’ has been appointed in respect of the site, the Supplier must comply in all respects with any directions of that ‘principal contractor’.
(b) The Supplier indemnifies the Company from and against any damage, loss, liability or claim by or against the Company arising out of or in connection with a breach by the Supplier of its obligations under and resulting from this clause.

10 Make Good Works

The Supplier acknowledges that upon completion of the supply of the Goods and/or Services it will promptly:
(a) disestablish all temporary structures and other temporary works as part of the Services;
(b) make good, clean-up and reinstate the Site and remove, salvage, and (where applicable) recycle of all plant, temporary works, machinery, equipment, materials, rubbish and any other items or things used by the Supplier in the delivery of the Goods or provision of the Services;
(c) rectify any damage caused to the Site (or any fixtures, fittings or equipment at the Site) caused by the delivery of the Goods or provision of the Services or, if directed by the Company, pay for the cost of repair; and
(d) comply with any other requirements as further instructed by the Company,
in accordance with the Program.

11 Limited liability

(a) The Company enters into this Purchase Order as a trust, constituted by the Trust Deed dated 18 October 2010 (the “Trust”), as amended from time to time.
(b) All obligations of the Company under this Purchase Order are incurred by the Company solely in its capacity as Trustee of the Trust and the Company will not be liable to pay or satisfy any of its obligations except to the extent to which it is indemnified out of the assets, property, real and personal property which are the subject of the Trust.

12 Indemnity

The Supplier indemnifies the Company, including its successors, assigns, directors, executive members, officers, employees, volunteers, agents, contractors, customers and users of the Goods and Services from and against all actions, suits, claims, demands, liabilities, losses, damages and costs (including the cost of complying with product recall, loss of profits and legal costs and expenses calculated on a solicitor-client basis) and/or liability to any third party arising out of or incidental to a breach of this Purchase Order by Supplier, any warranty given by Supplier under this Purchase Order being incorrect or misleading in any way, or any loss or damage (including damage to property or injury to person) which arises from the provision of defective goods or services by the Supplier under this Purchase Order and/or any act or omission (including negligence or unlawful or wilful conduct) by Supplier or any of its directors, executive members, officers, employees, contractors, agents or advisers relating to the supply of Goods or the provision of Services.

13 Insurance

The Supplier must provide and maintain (and if requested by the Comapny, provide the Company with a certificate of insurance verifying compliance) the following insurances on an occurrence basis:
(a) public liability insurance with a minimum insurance cover for $10 million per claim;
(b) workers compensation and employee’s liability insurance;
(c) insurance of the Goods or full replacement value of the Goods; and
(d) insurance for all equipment and materials used by Supplier (if any) in providing the Goods or the Services.

14 Price

(a) The price for the Goods and Services is fixed unless otherwise specified in this Purchase Order or agreed in writing by the Company. No prices listed on this Purchase Order are subject to escalation unless the Company expressly agrees in writing (signed by an authorised representative of the Company) to such escalation.
(b) Subject to clause 15, the price includes all taxes, levies and fees (including goods and services tax) which are payable in relation to the supply and delivery of the Goods and Services. The Supplier must pay any such taxes, levies and fees.
(c) The Supplier must deliver to the Company an invoice for the price of the Goods. The invoice must be in the form of a tax invoice which complies with the GST Law.
(d) All payments will be on account only and will not be an admission that the Goods or Services comply with this Purchase Order.
(e) It is at the Company’s discretion as to whether it pays the invoices upfront or makes payment after receipt of a valid tax invoice or within 30 days of the end of the month in which the goods or services are delivered, provided that:
(i) the Goods and Services are satisfactory to the Company;
(ii) the valid tax invoice is issued after the delivery of the goods or after the provision of the Services; and
(iii) delivery of the Goods, provision of the Services and the amounts invoiced are in accordance with this Purchase Order or other written instructions issued by or on behalf of the Company.

14A Variation

(a) A variation means:
(i) a change to any of the Goods or Services, or a change in the character or quality of the Goods or Services; or
(ii) an increase or decrease in the scope of the Goods or Services,
but does not include any work to overcome a breach, act or omission of the Supplier.
(b) the Company may, at any time, direct the Supplier to perform a Variation and the Supplier must perform the Variation. The direction must be in writing and must state that it is a direction for a Variation. If the direction states that the Supplier must provide an estimate of the cost of the Variation, then the Supplier must provide such estimate within the time specified in the direction and if no time is specified, then promptly.
(c) If the Supplier considers that a direction from the Company is a direction for a Variation which does not comply with clause 14A(b), the Supplier must, if possible before commencing work on the Variation and in any event within two- days of the direction, notify the Company in writing that the Supplier considers the work is a Variation and an estimate of the cost of the Variation.
(d) Where the Company has given the Supplier a direction to perform a Variation which complies with clause 14A(b), the Contract Sum must be altered to an amount mutually agreed between the parties, to account for the Variation.
(e) Unless the Supplier has either received a direction which complies with clause 14A or has delivered a notice in the form and within the time required by clause 14A, the Supplier will have no entitlement for extension of time or alteration of the Price as a consequence of performing a Variation or the work the subject of the alleged Variation.
(f) If a Variation complies with clause 14A, all provisions of this Purchase Order apply to such Variation as if the Variation was part of the original scope of the Supplier’s obligations.

15 GST

(a) In this clause 15:
(i) words and expressions which are not defined in this Purchase Order but which have a defined meaning in GST Law have the same meaning as in the GST Law; and
(ii) GST Law has the meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999.
(b) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Purchase Order are exclusive of GST.
(c) If GST is payable by a supplier or by the representative member for a GST group of which the supplier is a member, on any supply made under this Purchase Order, the recipient will pay to the supplier an amount equal to the GST payable on the supply.
(d) The recipient will pay the amount referred to in clause 15(c) in addition to and at the same time that the consideration for the supply is to be provided under this Purchase Order.

16 Use of Items and information provided by the Company

All tools, patterns, materials, drawings, specifications, information and other data (in any form whatsoever) provided by the Company in connection with this Purchase Order (the “confidential information”) are confidential and:
(a) the Supplier must not disclose the confidential information to any third party except where disclosure is for the purposes of this Purchase Order, and the Supplier has obtained an undertaking of non-disclosure in favour of the Supplier on the same terms as this clause;
(b) the Supplier agrees that the confidential information:
(i) will at all times remain the property of the Company;
(ii) must only be used solely for the purpose of supplying the Goods and Services;
(iii) must be returned by the Supplier to the Company immediately upon expiry or termination of this Purchase Order.
(c) Notwithstanding paragraphs (a) and (b), the Supplier’s obligation of confidentiality shall not apply to the extent that:
(i) disclosure is compelled by law;
(ii) disclosure is authorised in writing by the Company; or
(iii) the information is in the public domain other than through a breach of the Supplier’s confidentiality obligations under this clause.

17 Bankruptcy of Supplier

If the Supplier:
(a) goes into liquidation (other than for amalgamation or reconstruction);
(b) has a receiver or voluntary administrator or provisional liquidator appointed to its affairs; or
(c) enters into a deed of arrangement or composition with its creditors,
this Purchase Order shall be automatically cancelled and the Company shall be under no liability for payment of any Goods or Services not then delivered to, completed or accepted by the Company, as the case may be.

18 Entire Agreement

The Supplier acknowledges that this Purchase Order constitutes the entire agreement between the parties and supersedes all prior negotiations, representations, agreements and understandings, written or oral concerning the subject matter of these terms. Where terms and conditions offered in either the Supplier’s quotation or the Supplier’s invoice conflict with the terms and conditions of these terms, these terms will prevail. These terms may not be modified except in writing and signed by an authorised representative of the Company.

19 Law

The contract constituted by this Purchase Order shall be construed and governed according to the laws of the State of New South Wales and the parties accept the jurisdiction of Courts exercising jurisdiction in that state.

20 Advertising rights and media

The Supplier:
(a) must not advertise or promote its supply of Goods or Services to the Company or any relationship with the Company, or release any such materials bearing, containing or referring to the Company’s logo and other marks, logos or devices of the Company.
(b) must not give any interviews or assist a media entity in relation to the writing or broadcasting of any story concerning the provision of goods or services to the Company.

21 Termination

(a) The Company may terminate this Purchase Order at any time by giving 5 days prior written notice to Supplier.
(b) In addition, the Company may terminate this Purchase Order immediately in whole or in part by written notice if:
(i) the Supplier fails or refuses to make delivery of the goods or provision of the services in accordance with this Purchase Order;
(ii) the Supplier becomes insolvent, bankrupt or enters into liquidation;
(iii) there is a substantial change in shareholder control or ownership of the Supplier, which in the reasonable opinion of the Company adversely affects the Supplier’s ability to perform the obligations; or
(iv) the Supplier engages in conduct which, in the reasonable opinion of the Company, reflects unfavourably on the good name, goodwill, reputation or image of the Company.

22 Consequences of termination

(a) Upon termination or expiration of this Purchase Order, the Supplier must immediately discontinue the supply of Goods and the Services to the Company.
(b) If the Company terminates this Purchase Order under clause 21(a), then the Company must pay Supplier those costs incurred which are properly allowable or apportionable under generally accepted accounting principles for the goods or services consumed by the Company as at the date of termination.
(c) Clauses 9, 13, 14, 15, 16, 19, 22 and 24 shall survive the expiry or termination of this Purchase Order to the extent necessary to effect the intent of the parties and to protect the rights of the Company.

23 Remedies

The individual remedies reserved in this Purchase Order are cumulative and additional to any other or further remedies provided in law or equity. No waiver of any breach of any provision of this Purchase Order will constitute a waiver of any other breach, or other such provision.

24 Dispute resolution

(a) If a dispute arises out of or in relation to this Purchase Order, then either party must deliver by hand or send by certified mail to the other party a notice of the dispute in writing identifying and providing details of the dispute.
(b) Despite the existence of a dispute, each party must continue to perform its obligations under the Purchase Order. The existence of a dispute will not prejudice the Company’s rights to terminate the Purchase Order for any reason.
(c) Within 2 days of service of a notice of dispute, a representative of the Company and a senior representative of the Supplier must meet and, in good faith, attempt to resolve the dispute. If the dispute is not resolved within 2 days of the date that the delegates meet under this clause, the matter may be litigated in the courts.
(d) Compliance with the procedures in this clause is a precondition to the entitlement of a party to commence litigation in relation to a dispute (except in relation to applications for urgent interlocutory or declaratory relief).

25 Proportionate Liability

To the extent permitted by law, the operation of Part 4 of the Civil Liability Act 2002 (NSW) is excluded in relation to all and any rights, obligations and liabilities under this Purchase Order, whether such rights, obligations or liabilities are sought to be enforced by a claim in contract, tort or otherwise.

26 Relationship between the parties and Assignment

(a) Nothing in this Purchase Order creates a partnership, joint venture, relationship of employment, agency or similar relationship between the parties.
(b) Unless express written consent is given by the Company, this Purchase Order is not assignable by Supplier.