Terms & Conditions of Trade

Supply Contract

SCHEDULE

1. Maskill: Maskill Pty Ltd ACN 115 313 114 of 157 O’Mara Road, Wellcamp Qld 4350, email info@maskill.com

2. Customer: The customer who accepts Maskill’s Quote

3. Goods and Services: The goods and/or services mentioned in or contemplated by the Quote, and any additional goods and/or services supplied by Maskill under this document

Unless the context otherwise indicates, each reference in this document to a word or phrase in this Schedule incorporates the information mentioned in this Schedule for that word or phrase.

TERMS

1. Binding agreement

1.1 Maskill’s provision of a Quote constitutes an offer to supply the Goods and Services. The Customer accepts the offer by:

1.1.1 advising Maskill that the Quote is acceptable;

1.1.2 giving Maskill instructions about the Goods and Services;

1.1.3 telling or allowing Maskill to proceed with supplying the Goods and Services; or

1.1.4 communicating to Maskill that the offer is accepted in another way.

1.2 When Maskill’s offer is accepted by the Customer a binding agreement is entered into between the parties on the terms of this document.

1.3 Unless otherwise agreed in writing between the parties, the terms of this document apply to all jobs for which the Customer engages Maskill to the fullest possible extent that the terms of this document are applicable to the jobs.

2. Supply of Goods and Services

2.1 The Customer engages Maskill to supply the Goods and Services.

2.2 Maskill will:

2.2.1 supply the Goods and Services in a proper and professional manner, and in accordance with relevant Australian Standards and legal requirements; and

2.2.2 try to supply the Goods and Services within any period of time agreed between the parties. However, Maskill is not liable if the Goods and Services are supplied after that time period.

2.3 If the Goods and Services involve Maskill supplying an item to the Customer in exchange for the Customer supplying an item to Maskill, the Customer must supply its item to Maskill at the earlier of:

2.3.1 7 days after Maskill supplies its item to the Customer; or

2.3.2 when required by Maskill.

2.4 The Customer warrants that supplying an item to Maskill does not infringe any Intellectual Property Rights of any person, or breach any agreement with any person.

2.5 If the Goods and Services involve Maskill supplying a part for machinery to the Customer, the Customer must not supply the part by itself to a third party.

2.6 The Customer must at its cost return to Maskill in good condition any item of Maskill which is used to transport goods to the Customer within 30 days of the goods being delivered. If the Customer does not comply with this clause, Maskill may charge the Customer an amount determined by Maskill for the item (without limiting any other right or remedy of Maskill).

2.7 Maskill may at its cost appoint a third party to provide some or all of the Goods and Services. Maskill is not liable for any act or omission of a third party.

2.8 The Goods and Services supplied by Maskill do not include any painting unless specifically provided for in the Quote.

2.9 If Maskill has any request of the Customer (including for instructions), the Customer must promptly respond to Maskill.

3. Payments

3.1 The Customer will pay Maskill for the Goods and Services supplied by Maskill at the prices or rates mentioned in or determined from the Quote.

3.2 If additional goods or services which are outside the scope of the Quote are supplied by Maskill, the Customer will pay Maskill for the additional goods or services at the prices or rates determined by Maskill. Maskill may supply the additional goods or services:

3.2.1 if Maskill believes they are required (without the Customer’s prior agreement); or

3.2.2 at the Customer’s request.

3.3 Maskill will issue tax invoices to the Customer from time to time.

3.4 The Customer must pay each tax invoice to Maskill in the manner required by Maskill and no later than 14 days after the date of the tax invoice.

3.5 Payments are to be made clear of any set off, counterclaim or deduction of any kind.

3.6 Maskill may apply payments in whatever order it chooses, even if the Customer specifies otherwise.

3.7 The Customer will pay all expenses of and incidental to Maskill supplying the Goods and Services (including transport costs) except any expense that is specifically provided for in the Quote.

4. GST

4.1 If Maskill is liable under the GST Act for any GST on a supply by Maskill to the Customer, the Customer must pay to Maskill the amount of the GST, subject to clause 4.2, at the same time and in the same manner as the Customer is required to pay for the supply to which the amount for GST relates.

4.2 As a precondition for payment of an amount for GST by the Customer, Maskill will issue a tax invoice to the Customer.

5. Maskill’s goods

5.1 While goods remain the property of Maskill:

5.1.1 the Customer has no interest in the goods, and cannot create any interest in the goods or claim any lien over the goods;

5.1.2 if Maskill is not in actual possession of the goods, Maskill may recover possession of the goods wherever they are, at any time, and however Maskill decides; and

5.1.3 if the Customer is in actual or constructive possession of the goods, the Customer:

(a) will not deliver the goods or any document of title to the goods to any person except as directed by Maskill; and

(b) is in possession of the goods as a bailee, and the Customer owes Maskill the duties and liabilities of a bailee.

5.2 Until Maskill has been paid in full for the goods it supplies:

5.2.1 the property of Maskill in the goods remains with Maskill;

5.2.2 the Customer must:

(a) not supply any of the goods to any person outside of its ordinary or usual course of business;

(b) not allow any person to have or acquire any interest in the goods;

(c) insure the goods for their full insurable or replacement value (whichever is the higher) with a reputable Australian insurer; and

(d) not remove, deface or obliterate any identifying plate, mark or number on any of the goods; and

5.2.3 if the Customer supplies any of the goods to any person:

(a) the Customer holds the proceeds of its supply of the goods as trustee for Maskill;

(b) the Customer must immediately pay the proceeds to Maskill; and

(c) any accessory or item which accedes to any of the goods becomes and remains the property of Maskill.

5.2.4 All goods are at the risk of the Customer except for goods which are the property of Maskill and at its premises.

6. Personal Property Securities Act 2009

6.1 The Customer grants Maskill an interest in all the Customer’s personal property (including proceeds) to secure payment and performance of the Customer’s obligations under this document.

6.2 This document is a security agreement for the purposes of the PPSA in relation to any security interest created, arising or provided for under this document.

6.3 Maskill may register any security interest created, arising or provided for under this document on the Personal Property Securities Register.

6.4 A provision of the PPSA does not apply if:

6.4.1 the parties may contract out of the provision; and

6.4.2 Maskill decides the provision does not apply.

6.5 Despite clauses 12.8 and 12.9, notices or documents required or permitted to be given to Maskill for the purposes of the PPSA must be given in accordance with the PPSA.

6.6 The Customer waives its right to receive any notice under the PPSA unless the notice is required by the PPSA and the Customer’s right to receive the notice cannot be waived.

7. Intellectual Property Rights

7.1 Maskill retains all its Intellectual Property Rights in providing the Goods and Services.

7.2 The Customer must not reproduce, publish or otherwise use any Intellectual Property Rights of Maskill other than under this document without Maskill’s written consent.

8. Confidentiality and privacy

8.1 A party will not use or disclose the other party’s Confidential Information or personal information without the written approval of the other party unless the use or disclosure is:

8.1.1 legally compelled;

8.1.2 for the purpose of discharging its obligations under this document;

8.1.3 permitted under this document; or

8.1.4 to its related entities, solicitors, accountants, insurers, employees, agents or contractors.

8.2 Each party will take all reasonable steps to ensure that its related entities, employees, agents and contractors do not use or disclose the other party’s Confidential Information or personal information except as provided for under this document.

9. Customer’s default

9.1 Without limiting any other right or remedy of Maskill, if the Customer breaches any term of this document, Maskill may immediately:

9.1.1 forfeit any money such that the money becomes the property of Maskill absolutely who is not required to account to the Customer for it;

9.1.2 suspend its remaining obligations under this document;

9.1.3 sue the Customer for damages, specific performance, or damages and specific performance;

9.1.4 terminate this document; and

9.1.5 claim damages for any loss it suffers as a result of the Customer’s breach, including legal costs on an indemnity basis.

9.2 Without affecting Maskill’s other rights, if any money payable by the Customer is not paid when due, the Customer must pay Maskill interest on that money calculated at the rate equal to the prime lending rate charged by Maskill’s financial institution plus 5% from the due date for payment until payment is made. Maskill may recover that interest from the Customer as liquidated damages. Any judgment for money payable will bear interest from the date of judgment to the date of payment and this clause 9.2 applies to calculation of that interest.

9.3 The Customer is responsible for, and indemnifies Maskill against, liability for all loss, damage or injury to persons or property (including legal costs on an indemnity basis) arising from or in connection with any breach of this document by the Customer.

10. Force majeure

If, by reason of any thing beyond the reasonable control of Maskill, Maskill is unable to perform in whole or in part any obligation under this document, Maskill is relieved of that obligation to the extent and for the period that it is unable to perform, and it is not liable for the inability to perform.

11. Exclusion of liability

11.1 Subject to clause 11.2, any term which would otherwise be implied in this document is excluded.

11.2 Where legislation implies in this document any term, and the legislation avoids or prohibits provisions in a contract excluding or modifying application of or liability under the term, the term will be treated as being included in this document. However, the liability of Maskill for a breach of the term will be limited, at the option of Maskill, to:

11.2.1 replacing or repairing goods or supplying equivalent goods, or paying the cost of doing so; or

11.2.2 supplying services again, or paying the cost of doing so.

11.3 To the fullest possible extent:

11.3.1 Maskill is not responsible for, and the Customer releases Maskill from, any claim arising out of the Goods and Services;

11.3.2 all express and implied warranties, guarantees and conditions under statute or general law as to merchantability, description, quality, suitability or fitness of the Goods and Services for any purpose or as to design, assembly, installation, materials or workmanship or otherwise are expressly excluded; and

11.3.3 Maskill is not liable for physical or financial injury, loss or damage or for consequential loss or damage of any kind arising out of the supply, design, assembly, installation, materials or workmanship of the Goods and Services or arising out of Maskill’s negligence or in any way whatsoever.

12. General

12.1 This document does not create the relationship of principal and contractor, partners, employer and employee, principal and agent, or joint venturers.

12.2 Each party must:

12.2.1 do or cause to be done all acts and things necessary or desirable to give effect to this document; and

12.2.2 refrain from doing all acts and things that could hinder performance by any party of the provisions of this document.

12.3 This document will be governed by and constructed in accordance with the laws of Queensland and the parties submit to the exclusive jurisdiction of Queensland courts and any courts which have jurisdiction to hear appeals from any of those courts.

12.4 The parties agree:

12.4.1 to apply a construction of each provision of this document that creates a legal and enforceable provision;

12.4.2 that any illegal or unenforceable provision will be severed from this document and will not affect the continued operation of the remaining provisions; and

12.4.3 to use their best endeavours to replace any severed provision with a provision having a commercial import as close as possible to the severed provision.

12.5 Time is of the essence for all obligations of the Customer under this document.

12.6 Any discretion on the part of Maskill is absolute and Maskill is not required to provide any reason for any decision it makes.

12.7 Failure of any party at any time to insist on performance of any provision of this document is not a waiver of that party’s rights to insist on performance of that or any other provision of this document.

12.8 A notice or other communication required or permitted to be given by a party to another must be in writing and sent by email, delivered personally, or delivered by prepaid mail. A notice or other communication will be deemed to have been given when:

12.8.1 sent by email, upon receipt;

12.8.2 personally delivered, upon delivery; or

12.8.3 mailed, the 2nd business day after posting.

12.9 Unless otherwise notified, the address of each party for the purposes of giving notice is the address set out in this document or such other address as is notified in writing to each other party from time to time.

12.10 Each party consents to information being given by electronic communication.

13. Interpretation

13.1 Unless otherwise provided or unless there is something inconsistent in the subject matter, the expressions following (whether appearing with or without capital letters) have the meanings assigned to them in this clause:

13.1.1 “Confidential Information” means information that is by its nature confidential but does not include:

(a) information already known to the receiving party at the time of disclosure by the other party; or

(b) information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this document;

13.1.2 “GST Act” means the A New Tax System (Goods and Services Tax) Act 1999;

13.1.3 “Intellectual Property Rights” means all present and future ownership and rights conferred by statute, common law or equity in or in relation to any copyright, trade marks, designs, patents, circuit layouts, business and domain names, inventions, and other results of intellectual activity in the industrial, commercial, scientific, literary or artistic fields;

13.1.4 “PPSA” means the Personal Property Securities Act 2009; and

13.1.5 “Quote” means the quote prepared by Maskill and accepted by the Customer (including any change agreed in writing between the parties) which has resulted in the parties being bound by this document.

13.2 A reference in this document to an Act of Parliament or any section of an Act are to be read as though the words “or any statutory modification or re-enactment of it or any statutory provision substituted for it” were added to the reference. Any general reference to a statute includes any regulations or orders made under the statute.

13.3 Any expression used that is defined in the GST Act, PPSA or Electronic Transactions (Queensland) Act 2001 has that defined meaning.

13.4 In this document the words “in writing” include any communication sent by email.