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Licensed Contract Labour Provider

YARRA VALLEY

LABOUR HIRE

EXPERIENCED & PROFESSIONAL

Trading Terms

TERMS AND CONDITIONS FOR THE SUPPLY OF SERVICES BY THE SERVICES PROVIDER

The Services Provider agrees to render the Services to the Client and the Client agrees pay the Services Provider all Outstanding Amounts, on the terms of this Agreement.

1. Definitions and interpretation

1.1 Definitions.

In this Agreement:

Amended Quote means a quote that is amended by the Services Provider in accordance with clause 4.3.

Business Day means a day which is not a Saturday, Sunday, public holiday or bank holiday in Victoria.

Claims means any and all legal proceedings, actions, suits, causes of action, proceedings of any nature, actions, claims, investigations, charges, accounts, demands, debts due, loss or liability of any kind, costs payable and expenses (including legal costs and disbursements in defending or settling a Claim), whether arising during or after the term of this Agreement, whether or not currently known or made and whether or not presently in existence.

Client means the client that is specified in the Quote or (if applicable) in any Amended Quote, and any other written Agreement between the Services Provider and the Client between the Services Provider and the Client, to whom the Services Provider renders the Services.

Commencement Date means the date that is agreed to be the Commencement Date between the Services Provider and the Client or the date that the Services Provider commences rendering Services to the Client, whichever is earlier.

Completion Date means the date that is agreed to be the Completion Date between the Client and the Services Provider.

Controller has the meaning given in the Corporations Act.

Corporations Act means the Corporations Act 2001 (Cth).

Expenses and Disbursements means the expenses and disbursements that are referred to in the Quote or (if applicable) in any Amended Quote.

Fees means the fees that are referred to in the Quote or (if applicable) in any Amended Quote.

GST means the tax imposed by the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and related tax imposition Acts of the Commonwealth of Australia.

Insolvent means, in relation to any party:

if a corporation:

it is unable to pay its debts when they fall due;

it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act);

it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to its property;

it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any law or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the Services Provider);

an application or order has been made (and, in the case of an application, it is not stayed, withdrawn or dismissed within 5 (five) Business Days), a resolution is passed, proposal put forward, or any other action taken, in each case relating to that person, which is preparatory to or could result in any of the events described in sub-clauses (i) (A) to (D) above;

it is taken under section 459F(1) of the Corporations Act to have failed to comply with a statutory demand;

it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act;

it takes any steps or omits to take any steps or ASIC takes steps that result in or will result in the corporation being ‘deregistered’ as that term is defined in the Corporations Act;

any expropriation, attachment, sequestration, distress or execution affects any assets of the corporation; or

anything analogous or having a substantially similar effect to any of the events described above happens relating to that corporation under the law of any applicable jurisdiction; or

if a natural person:

anything analogous or having a substantially similar effect to any of the events described above happens relating to that corporation under the law of any applicable jurisdiction;

the person authorises a registered trustee or lawyer to call a meeting of their creditors or proposes or enters into a deed of assignment or deed of arrangement or a composition with any of their creditors;

a person holding a Security Interest in assets of the person enters into possession of or takes control of any of those assets or takes any steps to enter into possession of or take control of any of those assets;

the person commits an act of bankruptcy; or

anything analogous or having a substantially similar effect to any of the events described above happens relating to that person under the law of any applicable jurisdiction.

LHL Act means the Labour Hire Licensing Act 2018 (Victoria).

Losses includes but is not limited to, costs (including party to party legal costs and the Services Provider’s legal costs on an indemnity basis), expenses, lost profits, award of damages, personal injury and property damage.

Outstanding Amount means the following amounts owing to the Services Provider by the Client in respect of the Services:

(i) all Fees;

(ii) all Expenses and Disbursements;

(iii) all other amounts of any other nature that are payable to the Services Provider by the Client pursuant to, or out of and in connection with, this Agreement.

Payment means payment by the Client to the Services Provider of all Outstanding Amounts owing to the Services Provider in accordance with this Agreement.

Quote means a quote issued by the Services Provider to the Client in accordance with clause 4.

Security Interest means any:

security interest under section 12 (1) or (2) of the Personal Property and Securities Act 2009 (Cth) or security for payment of money, performance of obligations or protection against default (including a mortgage, bill of sale, charge, lien, pledge, trust, power of title retention arrangement, right of sell-off, assignment of income, garnishee order or monetary claim and flawed deposit arrangements); and

thing or preferential interest or arrangement of any kind giving a person priority or preference over claims of other persons or creditors with respect to any property or asset.

Services means any services which the Services Provider agrees to render to the Client.

Services Provider means Yarra Valley Labour Hire Pty Ltd ACN 152 825 833 of 870 Steels Creek Road, Steels Creek VICTORIA 3775.

Services Request means a request by the Client that the Services Provider render the Services to it, made in accordance with clause 5.

Site means the property referred to as the Site in the Quote or (if applicable) in any Amended Quote.

Tax Invoice means a tax invoice rendered by the Services Provider to the Client for any Outstanding Amount in respect of the Services.

Workers means workers supplied by the Services Provider to the Client to render the Services in accordance with the LHL Act.

1.2 Interpretation

In this Agreement, unless the context otherwise requires:

headings are for convenience only and do not affect interpretation;

words importing the singular include the plural and vice versa;

a word importing a gender includes the other gender;

a reference to a person includes an individual, a partnership, a body corporate, a joint venture, an association (whether incorporated or not), a government and a government authority or agency;

a reference to a party or a person includes the party’s or the person’s executors, legal personal representatives, successors, transferees and assigns;

a reference to a section, schedule, part, clause or party is a reference to a part, clause of, or a party to, this Agreement;

A reference to this Agreement includes the recitals and any schedules, annexures, exhibits or attachments to this Agreement;

A reference to legislation includes any statutory modification or replacement and any subordinate or delegated legislation issued under such legislation;

If the day on which anything is to be done is not a Business Day it shall be done on the next Business Day; and

A reference to “$” or dollars means Australian dollars and a reference to payment means payment in Australian dollars;

2. Services

2.1 The Client engages the Services Provider to render the Services to it.

2.2 The Services Provider must render the Services on the Site, or at such other location that is agreed in writing between the Services Provider and the Client.

2.3 For the avoidance of doubt, for the purpose of clause 2.1 the Client acknowledges that the Services Provider will render the Services by way of supplying Workers to perform the Services on the Site, or at such other location that is agreed in writing between the Services Provider and the Client.

2.4 The Services Provider must render the Services to the Client in accordance with the terms of this Agreement. In this regard, for the avoidance of doubt, the parties acknowledge that the terms of the Quote or (if applicable) any Amended Quote signed by the Client form part of this Agreement.

2.5 In supplying Workers to render the Services, the Services Provider must comply with all of the requirements imposed under the LHL Act.

3. Payment of the Outstanding Amounts

3.1 The Client must make Payment of all Outstanding Amounts owing to the Services Provider in respect of the Services within 7 (seven) days of the Services Provider rendering a Tax Invoice to the Client, or within such other timeframe that is specified in the Tax Invoice.

3.2 Unless otherwise stated, all Outstanding Amounts do not include an amount for GST. If a supply by the Services Provider to the Client is subject to GST, the Client must pay the applicable GST as a separate amount.

3.3 Until the Client pays the Services Provider any Outstanding Amount in full the Services Provider shall be entitled to maintain an action against the Client for the full Outstanding Amount at its absolute discretion.

3.4 The Client acknowledges that the Services Provider’s entitlement to Payment of all Outstanding Amounts is not conditional upon the completion or success of the Services rendered.

4. Quote

4.1 The Services Provider will provide the Client with a Quote before rendering the Services.

4.2 Unless previously withdrawn, any Quote issued by the Services Provider is valid for the period stated therein or where no period is so stated, for 14 (fourteen) days from the date of issue.

4.3 The Services Provider reserves the right to issue an Amended Quote to the Client at any time before it commences rendering the Services to the Client, in the event that the changes are required as a result of:

(a) any change to the scope of the Services to be rendered to the Client;

(b) there being a rise or fall in the cost to the Services Provider of supplying Workers to render the Services;

(b) there being a rise or fall of any other nature in the cost of rendering the Services; and/or

(c) any fluctuation in the rate of exchange between any currency and the Australian Dollar if such foreign currency is used in the process of determining the Quote.

4.4 In the event that the Services Provider amends a Quote pursuant to clause 4.3, the Services Provider will provide the Client with an Amended Quote as soon as practicable, at which point the amended Quote will be the Quote in respect of the Services.

4.5 Prices in the Quote refer to the entirety of the Services to be rendered to the Client by the Services Provider, and are subject to change by the Services Provider if only part of the Services in a Quote are later sought by the Client.

4.6 For the avoidance of doubt, prices in the Quote are only an estimate of the total cost for the Services Provider to render the Services to the Client, based on the estimated Services to be rendered to the Client as at the date of the Quote. The actual amount which the Services Provider invoices the Client for the Services in a Tax Invoice may vary from the amount stated in the Quote, based on the actual Services rendered to the Client by the Services Provider.

4.7 An indication of the time frame for the rendering of the Services in a Quote is an estimate only, and is not a fixed time frame. This estimate is not binding upon the Services Provider.

5. Services Request

5.1 Following the provision of a Quote by the Services Provider, the Client may make a Services Request to the Services Provider.

5.2 The Services Provider reserves the right to refuse a Services Request within 7 (seven) days of receipt of the Services Request, for any reason.

5.3 Every Services Request must:

(a) be submitted in writing by the Client;

(b) be made by way of the Client (or an authorised representative of the Client in the event that the Client is a corporation) signing the required place on the Quote to signify that the Client has accepted the Quote; and

(c) specify the date on which the Client requires the Services Provider to render the Services.

5.4 Placement of a Services Request by the Client signifies acceptance by the Client of the Quote and this Agreement.

5.5 The Services Provider may in its absolute discretion refuse to render the Services where:

(a) any Workers are unavailable for any reason whatsoever;

(b) credit limits cannot be agreed upon or have been exceeded; or

(c) payment for any Services previously rendered by the Services Provider to the Client or any related corporation of the Client or to any other party who is, in the reasonable opinion of the Services Provider, associated with the Client under the same or another Agreement, has not been received by the Services Provider.

5.6 The Client may not cancel a Services Request without the prior written consent of the Services Provider. Where a Services Request is cancelled, the Client indemnifies the Services Provider against any Losses incurred by the Services Provider as a result of the cancellation.

6. Tax Invoices and suspension of Services

6.1 The Services Provider will submit a Tax Invoice for any Outstanding Amount to the Client on at least a monthly basis. The Client must pay each Tax Invoice rendered by the Services Provider in full within 7 (seven) days from the date of the Tax Invoice, or within such other timeframe that is specified in the Tax Invoice.

6.2 If Payment for the invoiced amount is not received by the Services Provider in full at the end of that 7 (seven) day period (or within such other timeframe that is specified in the Tax Invoice), the Services Provider will issue a reminder notice to the Client (Reminder Notice) at such time as the Services Provider considers fit in its absolute discretion.

6.3 If Payment of the Tax Invoice is not received within 7 (seven) days of the Services Provider issuing the Reminder Notice to the Client, the Services Provider may at its absolute discretion suspend provision of the Services for such period that any Outstanding Amount (including any interest charged pursuant to clause 6.4) remains outstanding.

6.4 The Services Provider is entitled to charge interest at the interest rate set from time to time under the Penalty Interest Rates Act 1983 (Vic) on any Outstanding Amount under Tax Invoice from the date a Tax Invoice is due and payable until the time Payment is made.

7. Warranties, indemnity and insurance

7.1 The Services Provider warrants that:

it is a provider within the meaning of the LHL Act;

the Workers which the Services Provider supplies to the Client to render the Services are workers within the meaning of the LHL Act;

it is in compliance with all of the licensing requirements imposed by the LHL Act;

it has taken out, and has in place, current WorkCover insurance in relation to all Workers which it supplies to the Client to render the Services;

all Workers supplied to the Client to render the Services:

have been provided with appropriate training by the Services Provider to supply the Services in accordance with this Agreement;

have the necessary skills, experience, qualifications, resources, capacity and know-how to supply the Services in accordance with this Agreement; and

are sufficiently competent to render the Services with a high standard of care and diligence and in accordance with all applicable laws;

in undertaking the obligations under this Agreement it will not be in breach of any obligation owed to any other person.

7.2 The Services Provider must during the term of this Agreement at its cost take out and maintain all necessary or prudent insurances in relation to the Services.

8. Consumer Guarantees

8.1 Except as provided in this Agreement, all express and implied warranties under statute or general law as to merchantability, description, quality, suitability or fitness of any Services for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded to the fullest extent permitted by the applicable law.

8.2 All other conditions and warranties, statutory or otherwise and whether express or implied, are hereby excluded to the fullest extent permitted by the applicable law, and no guarantee, other than that expressly herein contained and the statutory guarantee that cannot be excluded or limited under the applicable law, applies to any Services to which the guarantee relates, or any accessory or part thereof.

9. Responsibilities of the Client

9.1 The Client:

must be appropriately licensed as required by the LHL Act;

must comply with all obligations imposed on it under the LHL Act;

must provide all Workers with all necessary and relevant information before they commence rendering the Services. Without limiting the generality of this clause this includes, but us not limited to, a copy of all applicable Safety Data Sheets and Material Safety Data Sheets;

must provide an appropriate induction on the Site to all Workers which the Services Provider supplies to the Client to render the Services;

must provide all Workers which the Services Provider supplies to the Client with all necessary and appropriate training before the Workers commence rendering the Services;

must at all times ensure that it complies with all applicable occupational health and safety requirements during the course of the Workers rendering the Services;

must at all times during the course of the Workers rendering the Services, ensure that all other workers on the Site:

have received appropriate training in respect of the work being performed out by them;

have the necessary skills, experience, qualifications, resources, capacity and know-how to carry out the work being performed by them; and

are sufficiently competent to carry out the work being performed by them with a high standard of care and diligence and in accordance with all applicable laws;

must work co-operatively with the Services Provider and the Workers during the course of the Services Provider rendering the Services;

must promptly provide the Services Provider with access to and/or copies of all Books and Records (such terminology which is defined in clause 10) which the Services Provider reasonably requires, in accordance with clause 10;

must make decisions and provide all information and instructions required by the Services Provider as soon as practicable following a request during the course of the Services Provider rendering the Services, in order to ensure efficient and satisfactory progress in respect of delivery of the Services;

permits the Services Provider to take photographs, videos or other media of the Services rendered at its absolute discretion, and to use those photographs, videos or other media at its absolute discretion (including, but not limited to, for marketing purposes);

allows the Services Provider to display Services Provider’s branded signage onsite, and within marketing collateral, during the course of rendering the Services;

must engage appropriate specialist consultant(s) or contractor(s) to identify, abate and/or remove any asbestos or hazardous or toxic substances / materials and to warrant in writing that the site is in full compliance with applicable laws to the fullest extent required; and

is responsible for the provision of all legal, survey and other particulars that are necessary for the Services Provider to be able to effectively render the Services to the Client. This includes, but is not limited to, providing the Services Provider with access to all existing structures, services and features, sub-surface conditions and adjoining sites and structures and providing the Services Provider with all required specialised advice that is not of a kind usually provided by the Services Provider.

10. Request for copies of records

10.1 The Services Provider may, by written notice to the Client, request access to and/or copies of all books and records (whether in paper, electronic or other form) (Books and Records) which the Services Provider reasonably requires:

in order to be able to render the Services; and/or

for compliance purposes, in connection with the LHL Act and/or any other applicable law.

10.2 Promptly upon receipt of a request pursuant to clause 10.1, the Client must provide a copy of the requested Books and Records to the Services Provider.

10.3 The Services Provider must reimburse the Client for all reasonable expenses incurred by the Client in providing access to the requested Books and Records in accordance with this clause 10.

11. Indemnity by Client

11.1 The Client shall indemnify the Services Provider and hold the Services Provider harmless against any Claims that arise out of or in connection with and/or that touch and concern any of the following matters, either directly or indirectly:

any non-compliance or alleged non-compliance with the Services Provider’s obligations under the LHL Act that arises as a consequence of any acts and/or omissions of the Client (either directly or indirectly);

any non-compliance or alleged non-compliance with any other applicable law that arises as a consequence of any acts and/or omissions of the Client (either directly or indirectly); and/or

any non-compliance by the Client with any of the Client’s obligations under this Agreement.

11.2 The indemnity in clause 11.1 shall be made good at the Client’s expense.

12. Term and termination

12.1 This Agreement commences on the Commencement Date and continues in force:

(a) until the Completion Date;

(b) where the Services Provider has not rendered all Services by the Completion Date, until all Services have been rendered; or

(c) such further date that is agreed by the Services Provider and the Client in writing.

12.2 A party may terminate this Agreement immediately by giving written notice to the other party if at any time:

a party (the Breaching Party) commits a breach of any provision of this Agreement (other than a minor breach that causes no material harm) and, where the breach is capable of remedy, fails to remedy the breach within 30 (thirty) days of receiving written notice to do so from the other party (the Innocent Party); or

a party becomes Insolvent, enters into liquidation or receivership, becomes subject to any form of external administration, makes a composition or arrangement with its creditors generally, or takes advantage of any statute for the relief of insolvent debtors.

12.3 In the event that the Client terminates this Agreement:

the Client must pay to the Services Provider all amounts accrued or due pursuant to this Agreement but unpaid as at the date of termination; and

the Client will forfeit any amounts already paid to the Services Provider on account of amounts owing pursuant to this Agreement.

13. Liability

13.1 Nothing in this Agreement shall limit or exclude the liability of the Services Provider for any liability which cannot be limited or excluded by the applicable law.

13.2 Subject to sub-clause 13.1, the Services Provider shall not in any circumstances have any liability to the Client for any of the following types of loss or damage arising under or in relation to this Agreement:

(a) any loss of profits, business, contracts, anticipated savings, goodwill, or revenue or any wasted expenditure (regardless of whether any of these types of loss or damage are direct, indirect or consequential); or

(b) any indirect or consequential loss or damage whatsoever.

13.3 Subject to clauses 13.1 and 13.2:

The total liability of the Services Provider under or in connection with this Agreement whether in contract, tort (including negligence) or otherwise, shall be limited in aggregate for all claims to the amount equalling the sum paid or payable as consideration for the provision of the Services.

Any liability of the Services Provider in respect of the Services is expressly limited to:

(i) the supplying of the Services again; or

(ii) the payment of the cost of having the Services supplied again.

13.4 Subject to clause 13.1, the Services Provider shall not be liable for any claim under this Agreement unless the claim has been made by the Client to the Services Provider within 1 (one) month of the date on which such claim became known to the Client.

14. Force majeure

14.1 Each party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement by reason of any event beyond such party’s reasonable control (force majeure), including but not limited to, any Acts of God, fire, flood, explosion, earthquake, other natural forces, pandemic, epidemic, government restrictions imposed as a result of any pandemic and/or epidemic, war, civil unrest, strike or labour disturbance, provided that the party has not caused such event(s) to occur.

14.2 The excuse from liability that is referred to in clause 14.1 shall be effective only to the extent and duration of the force majeure event(s) causing the failure or delay in performance.

14.3 Notice of a party’s failure or delay in performance due to force majeure must be given to the other party within 5 (five) calendar days after its occurrence. All Completion Dates under this Agreement that have been affected by force majeure shall be suspended for the duration of such force majeure.

14.4 In the event that a force majeure persists for 30 (thirty) days or more, either party may terminate this Agreement upon written notice to the other party.

15. Dispute resolution

15.1 If a dispute arises between the parties under or in connection with this Agreement, the parties must negotiate in good faith for the purpose of attempting to resolve the dispute for the period of 14 (fourteen) days from the date of one party (Aggrieved Party) giving the other party (Other Party) written notice of the dispute (Notice of Dispute).

15.2 If the parties are unable to resolve the dispute within 14 (fourteen) days of the Aggrieved Party giving a Notice of Dispute to the Other Party, then either party may by notice in writing advise the other party that it seeks to have the dispute resolved by mediation (Mediation Notice).

15.3 Within 21 (twenty one) days of one party giving a Mediation Notice to the other party, the parties may refer the matter to a mutually agreed mediator. In the event that an agreement cannot be reached on an appropriate mediator, any party may refer the dispute to a mediator appointed by the Law Institute of Victoria.

15.4 Mediation must occur within 30 (thirty) days of the appointment of the mediator and the costs of the mediation are to be borne equally between the parties.

15.5 In the event that the dispute is not resolved at mediation, either party may take steps to resolve the dispute by way of litigation.

15.6 For the avoidance of doubt, nothing contained in this clause 15 shall deny a party the right to seek injunctive relief from an appropriate Court where failure to obtain such relief would cause irreparable damage to the party concerned.

16. General

16.1 Entire agreement

This Agreement contains the entire agreement between the parties as to its subject matter and may only be amended in writing signed by all parties.

16.2 Notices

In the case of the Services Provider, notices must be given to the address that is specified in the definition of Services Provider, or as otherwise notified by the Services Provider in writing.

In the case of the Client, notices must be given to:

(a) the last address which the Client has advised to the Services Provider; or

(b) alternatively, to the address of the Client that is specified in any written Agreement between the Services Provider and the Client; or

(c) alternatively, as otherwise notified by the Client to the Services Provider in writing.

Notices must be delivered in person or sent by fax or prepaid post (airmail if international). Notices will be deemed to have been received:

(a) if delivered in person -- on the date of delivery;

(b) if sent by fax -- on production of a transmission report from the sender's fax machine evidencing that the fax was successfully sent in its entirety;

if sent by prepaid post to or from a place within Australia, 3 (three) Business Days after posting; or

if sent by prepaid post to or from a place outside Australia, 7 (seven) Business Days after posting.

16.3 No assignment

A party must not assign any of its rights or obligations under this Agreement without the other party's prior written consent.

16.4 No waiver

No delay or indulgence by a party in enforcing this Agreement will prejudice or restrict the rights of that party, nor will a waiver of those rights operate as a waiver of a subsequent breach.

16.5 No disadvantage to party preparing Agreement

No part of this Agreement is to be construed to the disadvantage of a party because that party was responsible for its preparation.

16.6 No relationship

Nothing in this Agreement may be construed as creating a relationship of partnership, joint venture, employment, principal and agent or trustee and beneficiary.

16.7 Parties must do all things and sign all documents

A party, at the request of another party, must do all things and sign all documents necessary to give effect to this Agreement.

16.8 Severability

If any provision of this Agreement is or becomes invalid or unenforceable then, if the provision can be read down to make it valid and enforceable without materially changing its effect, it must be read down, and otherwise the offending provision must be severed and the remaining provisions will operate as if the provision had not been included.

16.9 Jurisdiction

This Agreement is governed by the laws of Victoria, Australia, and the parties submit to the non-exclusive jurisdiction of the courts of that state.

16.10 Authority of parties

Each signatory to the Quote and/or (if applicable) any Amended Quote and any other written Agreement between the Services Provider and the Client warrants that he or she has authority to bind the party that he or she is stated to represent.

16.11 Counterparts

The Quote and/or (if applicable) any Amended Quote and any other written Agreement between the Services Provider and the Client may be executed in any number of counterparts all of which taken together will constitute one agreement.