TERMS & CONDITIONS FOR PROVIDING SERVICES

GENERAL TERMS AND CONDITIONS

1.    DEFINITIONS AND INTERPRETATION

1.1. In this Agreement, unless the context requires otherwise:
“CIBS” shall mean Conveyor Integrated Business Solutions Pty Ltd (ACN 655 858 325) as the Trustee for the Lim Family Trust and its successors and assigns or any person acting on behalf of and with the authority of CIBS.
“CIBS T&Cs” shall mean these terms and conditions.

“Company” shall mean the Company (or any person acting on behalf of and with the authority of the Company) being the entity as described on any Purchase Order as provided by the Company to CIBS.

“Documentation” means any trade secret, process or formula and any information relating to the business or financial affairs, marketing plans, sales plans, strategies, management, financing, products, inventions, designs or processes of CIBS and any databases, data surveys, specifications, drawings, records, reports, computer programs or other documents, materials or other data or information whether in writing or otherwise concerning CIBS or any of its suppliers, agents, or business partners to which the Company gains access or which the Company has prepared for CIBS, whether before, during or after the Term.

“Force Majeure Event” means any event or circumstance which is beyond the reasonable control of a Party and which causes or results in default or delay in the performance by the relevant Party of any of its obligations under this Agreement, where the event or circumstance could not have been prevented, overcome or remedied by the exercise by the relevant Party of a standard of care and diligence consistent with that of a prudent and competent person in the position of the relevant Party, and includes:
(a) fire, lightning, explosion, flood, earthquake, storm, hurricane, riots, civil commotion, natural disaster, sabotage, act of a public enemy, act of God, war (declared or undeclared), or radioactive contamination;
but excludes,
(b) industrial disruption of any kind, including secondary boycotts; and
(c) mere shortage of labour, materials or utilities.

“Invoice” means any invoice provided by CIBS to the Company with reference to the Purchase Order or otherwise pursuant this Agreement.
“Parts” means parts supplied by CIBS to the Company either separately, or as part of the Works and includes but is not limited to: belts, belt splicing products, equipment, vehicles, tooling and consumables (and where the context so permits shall include the supply of Works as defined below) or as such as shall be requested or identified in a Purchase Order.
“Price” shall mean the price payable by the Company for the Works in accordance with the Services Fees and clause 5 of this Agreement.
“Purchase Order” shall mean:
(a) a purchase order provided by the Company to CIBS; or
(b) any other written quotation, Work authorisation or other form of request for parts or Services as provided by the Company to CIBS,
and confirmed in writing as accepted by CIBS.

“Services” means any services or Works requested by the Company to be performed by CIBS as specified in any Purchase Order or otherwise.
“Sub-Contractor” shall mean and include any other person or entity:
(a) with whom CIBS may arrange for provision of the Services the subject of any Purchase Order or other agreement; or
(b) who is now or hereafter a servant, agent, employee or Sub-Contractor of any of the persons or entities referred to in clause 8.
“Works” shall mean all Services either performed or Parts supplied by CIBS to the Company (and where the context so permits shall include any supply of Parts). All Works shall be as described on the Invoice(s), Purchase Order quotation, Work authorisation or any other forms provided by CIBS to the Company and shall include any advice or recommendations.

2.    ACCEPTANCE

2.1. The Company’s request for CIBS to perform any Works constitutes acceptance of CIBS T&Cs. 

2.2. The Company shall neither rely nor assert in precedence any competing terms and conditions apply to the Items, other than the CIBS T&Cs. Should any other terms and conditions be subsequently determined by a Court as being operative, then the parties agree the CIBS T&Cs shall apply in the event of any inconsistency.

2.3. No Purchase Order may be varied or terminated absent prior written approval of CIBS and, where required, the subsequent issuance of an updated Purchase Order.

2.4.    Where more than one Company has requested for CIBS to perform Works, then each Company shall be jointly and severally liable for all payments to CIBS.

3.    TERM

3.1. Subject to any earlier termination as provided in CIBS T&Cs, the term of any provision by CIBS of any Works commences on the commencement date and ends on the expiry date as stated in any Purchase Order or other agreement between the parties (“Term”). The Term may be extended by any overholding period in accordance with clause 3.2 below.
3.2. Subject to any earlier termination provided for under these CIBS T&Cs, the provision by CIBS of any Works will continue in force beyond the Term until CIBS gives 30 days’ written notice for termination.
3.3. The Term may otherwise be extended by written agreement between the Parties.

4.    ENGAGEMENT

4.1. The relationship between CIBS and the Company pursuant any Purchase Order or other request for any Works is that of Principal and Contractor. Nothing in these CIBS T&Cs nor in any Purchase Order is intended or will establish a relationship of agency or employment as between CIBS and the Company.

4.2. Save for any other express agreement in writing, the Parties agree that a Purchase Order is the only agreed and approved method by which CIBS can be engaged to perform any Works

4.3.    In circumstances where CIBS is providing either a workforce or labour to the Company, the Company agrees that during the Restraint Period it will not:
(a) solicit, attempt to solicit, entice or encourage any employee of CIBS or to
leave their engagement with CIBS; and
(b) interfere or attempt to interfere with the relationship between CIBS and its employees and/or suppliers.

4.4. For the purposes of clause 4.3 above, “Restraint Period” means:
(a) 12 months from Expiry Date; or if determined unenforceable by a Court;
(b) 6 months from Expiry Date; or if determined unenforceable by a Court;
(c) 3 months from Expiry Date.

4.5.The Company acknowledges that each of the above restrictions are reasonable and necessary to protect CIBS’s legitimate interest and acknowledges the Company will be liable in damages (including punitive or special damages) arising out of the breach of any of the terms of clause 4.3.

4.6.For the avoidance of doubt, nothing in these CIBS T&Cs prevents or restricts CIBS from rendering any Works to any other entity either during or after the termination of the performance of any Purchase Order and no conflict of interest nor basis for termination will arise in respect thereof.

5.    PRICE AND PAYMENT

5.1.At CIBS’s sole discretion the Price shall be either:
(a) as stated on any Invoice provided by CIBS to the Company in response to any Purchase Order in respect of the any Works calculated by reference to the Service fees; or
(b) CIBS’s estimated Price (subject to clause 5.2) which shall not be deemed binding upon CIBS as the actual Price can only be determined upon completion of any Works. CIBS undertakes to keep the Company informed should the actual Price look likely to exceed the original estimate;
(c) CIBS’s quoted Price (subject to clause 5.2) which shall be binding upon CIBS provided the Company shall accept CIBS’s quotation in writing or by its conduct in receiving the Works.

5.2.CIBS reserves the right to unilaterally change the Price in the event of a variation to the Company’s Purchase Order and/or any circumstances effecting the completion or delivery of the Works by CIBS. Any variation from the plan of scheduled Works or specifications (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties or as a result of increases to CIBS in the cost of materials and labour) will be charged for on the basis of CIBS’s quotation or estimate and will be shown as variations on the Invoice. Payment for all variations must be made in full to CIBS, at their time of completion.

5.3. At CIBS’s sole discretion payment for any Works shall be due:

(a) on their completion; or
(b) prior to undertaking any Works; or
(c) by instalments in accordance with any CIBS’s payment schedule; or
(d) on the terms as otherwise stated in any CIBS’ Invoice.

5.4. Time for payment shall be of the essence and will be otherwise stated on the Invoice or any other forms. If no time is stated, then payment shall be due from the Company thirty (30) days from end of month.

5.5. The Company will make payment of the Invoice by cash, bank transfer, or by credit card (plus a surcharge of up to two and a half percent (2.5%) of the Price), or by any other method as agreed to as between the Company and CIBS.

5.6. GST and other taxes and duties that may be applicable shall be added to the Price except when they are expressly included in the Price.

6.    SERVICE FEES

6.1.The Company warrants it will pay to CIBS the Price in consideration for its performance of any Works.

6.2.The Price will be fixed for a period of six (6) months from the commencement date of any Works pursuant any Purchase Order and will then be subject to review annually within 60 days prior to the anniversary of the commencement date pursuant the Purchase Order. Any changes in Service Fees will then remain fixed for a further 6-month period.

6.3.Any variation to Price is subject to mutual written agreement by both Parties and approval of changes to Price will not be unreasonably withheld by either Party.

7.    PERFORMANCE AND DELIVERY OF WORKS

7.1.At CIBS’s sole discretion, lawful delivery of the Works under these CIBS T&Cs and pursuant any Purchase Order shall take place when CIBS provides, performs or delivers the Works as requested on the Purchase Order.

7.2.Delivery of any Works to a third party nominated by the Company is also deemed to be delivery to the Company for the purposes of these CIBS T&Cs.

7.3.The failure of CIBS to deliver the Works shall not entitle either Party to treat these CIBS T&Cs or any Purchase Order as repudiated.

7.4.For the avoidance of doubt, CIBS shall not be liable for any loss or damage whatsoever (including any consequential loss) due to failure by CIBS to deliver the Works (or any part thereof) promptly, or at all, where due to circumstances beyond the control of CIBS.

8.    NOMINATION OF SUB-CONTRACTOR

8.1.The Company hereby irrevocably authorises CIBS (if it should think fit to do so) to arrange, at its sole discretion, with a Sub-Contractor for the provision of the Works. Any such arrangement shall be deemed to be ratified by the Company upon delivery of the said Works by such Sub-Contractor, who shall thereupon be entitled to the full benefit of any Purchase Order to the same extent as CIBS. Insofar as it may be necessary to ensure that such Sub-Contractor shall be so entitled, CIBS shall be deemed to enter into any Purchase Order for Services for its own benefit and also as agent for the Sub-Contractor.

9.    RISK

9.1. All risk for Works passes to the Company on performance or delivery.

9.2.If any of any Parts are damaged or destroyed following delivery but prior to any ownership passing to the Company, CIBS is entitled to receive all insurance proceeds payable for the Parts. The production of these CIBS T&Cs by CIBS and any corresponding Purchase Order is deemed as sufficient evidence of CIBS’s rights to receive the insurance proceeds.

9.3.Where the Company expressly requests CIBS deliver any Parts to an unattended location, then such Parts shall be left at the Company’s sole risk and it shall be the Company’s sole responsibility to ensure the Parts are insured adequately, or at all, in such situation.

9.4.For the avoidance of doubt, after completion of the Works or supply of any Parts all risk and liability in respect thereof shall pass to the Company and the Company shall thereafter expressly indemnify CIBS for any and all losses (including consequential losses) it may suffer.

10.    TITLE

10.1.CIBS and the Company agree the lawful ownership of and legal title to any Parts
shall not pass until:
(a)    the Company has paid CIBS all amounts owing for the particular Parts, whether or not the Parts have been fitted or installed; and
(b)    the Company has met all other obligations due by the Company to CIBS in respect of all Purchase Orders and Invoices.11.    DEFECTS

11.1.The Company shall be deemed to have inspected the Works on delivery and that same is satisfactory and fit for purpose. The Company shall otherwise, within three (3) days of delivery (time being of the essence), notify CIBS of any alleged defect, shortage in quantity, damage or failure to comply with the relevant Purchase Order.

11.2. Subject to clause 11.1 above, the Company shall then provide CIBS a reasonable opportunity to inspect the Works within a reasonable time following delivery if the Company alleges the Works are defective in any way. If the Company fails to comply with this clause, the Works shall be presumed to be free from any defect or damage and CIBS will be under no liability, including to repair or replace the Works.

11.3.For defective Works which CIBS has agreed in writing the Company is entitled to reject, CIBS’s liability is limited to either (at CIBS’s discretion) replacing the Works or repairing the Works.

11.4.In the event it is discovered the Works are not defective or that misuse by the Company and/or any other third party has led to the defect in the Works then the Company shall be liable for payment of the replacement Works (if any) and any associated costs such as freight and insurance charges.
11.5.Works will not be accepted for return other than in accordance with clause 11.1 and 11.2 above.
11.6.In any event, CIBS shall not be liable for any defective Works after a period of 12 months from the date of their delivery and/or supply by CIBS.

12.    WARRANTY

12.1.For Parts not manufactured by CIBS, any warranty shall be the current warranty provided by the manufacturer of the Parts. CIBS shall not be liable, bound by, nor responsible for any term, condition, representation or warranty given by any third-party supplier, warranty provider and/or manufacturer of the Parts.

13.    LOSS OR DAMAGE

13.1.Subject to clause 13.2, the maximum liability of CIBS arising out of the performance or non-performance of the Works, whether under the law of contract, tort or otherwise, will be the lesser of $100,000 or the Price.13.2.CIBS will not be liable to the Company for:
(a) the acts, omissions or defaults of other Sub-Contractors or third parties engaged by either CIBS or the Company (including Sub-Contractors or third parties engaged as agent);
(b) any changes, alterations or additions to anything done by the Company without the express prior written approval of CIBS;
(c) any Works that are not performed in accordance with the Purchase Order, unless CIBS is notified in writing of the non-performance within one year of the provision of any Works referred in the Purchase Order;
(d) any loss of use, opportunity or production, loss of interest, earnings or profit, holding or financial costs, business interruption or any indirect or consequential losses; and
(e) any loss, damage or claim to the extent that such loss, damage or claim was caused or contributed to by the Company or its employees, agents, consultants or contractors.

13.3. Subject to clause 13.4, to the fullest extent permitted by law, all guarantees or warranties implied by statute or otherwise are excluded by operation of these CIBS T&Cs.

13.4. If CIBS breaches a guarantee or warranty implied under the Competition & Consumer Act 2010 and that guarantee or warranty cannot be contractually excluded, then CIBS’ liability to the Company for such breach is limited to the cost of supplying the Works again.

13.5. Subject to clause 13.4, CIBS is otherwise discharged from all liability in respect of the Works, whether under the law of contract, tort or otherwise, at the expiration of one year from the completion of the Works, and the Company (and persons claiming through or under the Company) will not be entitled to commence any action or claim whatsoever against CIBS (or any employee, contractor or Sub-Contractor of CIBS) in respect of the Works after that date.

14.    INDEMNITY

14.1. The Company indemnifies CIBS and keeps it indemnified from and against all liability, loss, damage, penalty, charge, claim, harm, injury, costs or expenses of any kind whatsoever (including consequential loss) (Loss) incurred or suffered directly or indirectly, including from or in connection with:
(a) any breach of these CIBS T&Cs by the Company;
(b) the termination of any Purchase Order because of a breach by the Company;
(c) any wilful, unlawful or negligent act or omission of the Company or any related bodies corporate;
(d) any injury to or death of a natural person and any loss of or damage to a third party's real or personal property caused or contributed to by the Company or its employees or sub-contractors;
(e) any loss of or damage to the business and/or real or personal property of the Company, howsoever caused;
(f) any claim, action, demand or proceeding by a third party against CIBS or any of its related bodies corporate or Sub-Contractors caused by or contributed to by the Company or any of its employees or sub-contractors whilst performing the Works or from any wilful, unlawful or negligent act or omission thereof; or
(g) any claim, action, demand or proceeding by a third party against CIBS or any of its related bodies corporate or Sub-Contractors, arising directly or indirectly out of a breach of these CIBS T&Cs.

14.2. Under no circumstances is CIBS responsible in any way to the Company or any other person or third party for any Loss, damages, costs, expenses or other claims (including consequential damages and loss of profits or loss of revenues), as a result, direct or indirect of any defect, deficiency or discrepancy in the delivery of the Works including, without limitation, for and in relation to any of the following:
(a) any Works supplied to the Company;
(b) any delay in supply of the Works; or
(c) any failure to supply the Works.b

15.1.    Where CIBS has designed, drawn or created specific items for the Company pursuant the Works, then the intellectual property in that Documentation shall remain vested in CIBS, and shall only be used by the Company at CIBS’s discretion and written consent.

15.2.    The Company warrants all designs or instructions to CIBS will not cause CIBS to infringe any patent, registered design or trademark in the execution of the Purchase Order and the Company agrees to indemnify CIBS against any action taken by a third party against CIBS in respect of any such infringement.

16.    DEFAULT AND CONSEQUENCES OF DEFAULT

16.1. Interest on overdue Invoices issued pursuant any Purchase Order shall accrue from the date when payment becomes due daily until the date of payment, at a rate of two-and-one-half percent (2.5%) per calendar month and such interest shall compound monthly at such a rate after, as well as before any Court judgment.
16.2. If the Company defaults in payment of any Invoice when due, the Company shall indemnify CIBS from and against all costs and disbursements incurred by CIBS in pursuing the amount of the Invoice, including legal costs on a solicitor and own client full indemnity basis and including any CIBS’s collection agency costs.
16.3. Without prejudice to any other remedies CIBS may have, if at any time the Company is in breach of any obligation (including those relating to payment) under these CIBS T&Cs, CIBS may suspend or terminate the supply of Works to the Company and any of its other obligations pursuant the Purchase Order. CIBS will not be liable to the Company for any loss or damage the Company may thereafter suffer because CIBS has exercised its rights under this clause.
16.4. Without prejudice to CIBS’s other remedies at law, CIBS shall be entitled to cancel all or any part of any Purchase Order which remains unfulfilled and all amounts owing to CIBS shall, whether or not due for payment, become immediately payable in the event that:

(a) any money payable to CIBS under an Invoice becomes overdue, or in CIBS’s opinion the Company will be unable to meet its payments as they fall due; or
(b) the Company 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
(c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Company or any asset of the Company.
16.5.    If at any time a default has occurred and is continuing by the Company pursuant these CIBS T&Cs, then the Company is barred from:
(a) denying the existence of; and/or
(b) raising any defence and/or set off to, any outstanding amounts due to CIBS at the time of the default.

17.    TERMINATION

17.1. CIBS may terminate any Purchase Order for its convenience without restriction and effective immediately for any reason and otherwise without cause, upon giving written notice to the Company.

17.2. On termination of CIBS’ engagement pursuant to this clause, the Company will immediately pay to CIBS the outstanding amount of any Invoice or Price calculated as owing up to and including the date of termination of this Agreement.

18.    DISPUTE RESOLUTION

18.1.If there is a dispute between the Parties arising out of or in connection with any Works performed pursuant a Purchase Order, then:
(a) the disputing party must notify the other party in writing with particulars of the dispute including an assessment of damages (Dispute Notice);
(b) within 10 days of receipt of the Dispute Notice, the representatives of the Parties with authority to settle the dispute must meet in person or discuss telephonically and use their reasonable endeavours to resolve the dispute by good faith negotiation; and
(c) if the Parties fail to resolve the dispute in accordance with this clause, then either party may commence legal proceedings.

18.2. For the avoidance of doubt, nothing in this clause prevents either party from applying to the Court for urgent injunctive relief.

19.    FORCE MAJEURE

19.1. CIBS will not be liable to the Company for any delays or non-performance of contractual obligations pursuant any Works performed in respect of a Purchase Order caused by a Force Majeure Event, provided CIBS has taken all reasonable steps to minimise any loss, damage or delay resulting from a Force Majeure Event. The obligations of CIBS under any Purchase Order will be suspended for as long as the Force Majeure Event may continue.

20.    SECURITY AND CHARGE

20.1.In the event an Invoice shall remain outstanding for more than 60 days, then the Company agrees to charge all of its property (real and personal) now and in the future for the payment of any and all moneys owed to CIBS as security thereof and that a caveat at Landgate or a PPSR may be registered to protect CIBS interest.

21.    CANCELLATION OF PURCHASE ORDER

21.1.CIBS may cancel any Purchase Order to which these CIBS T&Cs apply or cancel delivery of Works any time before the Works are delivered by giving written notice to the Company. On giving such notice, CIBS shall repay to the Company any sums paid in respect of the Price. CIBS shall not be liable for any other loss or damage howsoever arising from such cancellation.

21.2.In the event the Company cancels the delivery of Works, the Company shall be liable for any loss incurred by CIBS (including, but not limited to, any loss of profits or consequential loss) up to the time of cancellation.

22.    PRIVACY POLICY

22.1.The Company agrees for CIBS to obtain from a credit reporting agency a credit report containing personal credit information about the Company in relation to any credit provided by CIBS.

22.2.The Company agrees that CIBS may exchange information about the Company with those credit providers either named as trade referees by the Company or named in a consumer credit report issued by a credit reporting agency for the following purposes:
(a) to assess an application by Company; and/or
(b) to notify other credit providers of a default by the Company; and/or
(c) to exchange information with other credit providers as to the status of this credit account, where the Company is in default with other credit providers; and/or
(d) to assess the credit worthiness of Company.

22.3.The Company consents to CIBS being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

22.4.The Company agrees that personal credit information provided may be used and retained by CIBS for the following purposes and for other purposes as shall be agreed between the Company and CIBS or required by law from time to time:
(a) provision of Services; and/or
(b) marketing of Services by CIBS, its agents or distributors in relation to the Services; and/or
(c) analysing, verifying and/or checking the Company’s credit, payment and/or
status in relation to provision of Services; and/or
(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by Company; and/or
(e) enabling the daily operation of Company’s account and/or the collection of amounts outstanding in the Company’s account in relation to the Services.

22.5.CIBS may give information about the Company to a credit reporting agency for the following purposes:
(a) to obtain a consumer credit report about the Company; and/or
(b) allow the credit reporting agency to create or maintain a credit information
file containing information about the Company.

23.    GOVERNING LAW

23.1.The CIBS T&Cs and any Purchase Order is governed by the laws of the State of Western Australia.

24.    SEVERABILITY

24.1. If any term or condition or part of CIBS T&Cs or any Purchase Order is found to be illegal, unenforceable or invalid, those terms and conditions or part of CIBS T&Cs are to be treated as severed, but the remainder of CIBS T&Cs are not affected.

25.    WAIVER

25.1. CIBS will not be deemed to have waived any of its rights or remedies under CIBS T&Cs or at law by allowing any time or indulgence or by not exercising any right or remedy arising out of any default by the Company.

26.    VARIATION

26.1. No variation of the Purchase Order or to the CIBS T&Cs will be of any force unless it is in writing and signed by both parties.
26.2. CIBS may at any time unilaterally replace or amend the CIBS T&Cs, such replacement to be effective from the date specified by CIBS in its notice to the Company advising of the replacement or amendment.

27.    FURTHER ASSURANCES

27.1. The Company must do everything reasonably requested by CIBS to give effect to CIBS T&Cs, any relevant Purchase Order and the transactions contemplated by them.

28.    CIVIL LIABILITY ACT

28.1.To the extent permitted by law, the operation of Part 1F of the Civil Liability Act 2002 (WA) (and any similar provision under any similar legislation in any other Australian State) is excluded in relation to any and all of the Company’s rights, obligations and liabilities arising under or in relation to any Purchase Order or the CIBS T&Cs, however such rights, obligations or liabilities are sought to be enforced.