Terms &
conditions

1. Definitions and Interpretation

1.1 Definitions

The following definitions apply in this agreement unless the context requires otherwise:

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Perth, Western Australia are open for business.

Change of Control means, in respect of a particular entity, a person who Controls that entity ceasing to do so or another person acquiring Control of it.

Charges means Fees and Expenses.

Claim means any actual, contingent, present or future claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse for any Loss, restitution, equitable compensation, account, or any other remedy of whatever nature and however arising, whether in contract, tort (including but not limited to negligence), under statute or otherwise.

Client means the party that will receive the Services as named in the Quote.

Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners of the party and/or any of the business or financial affairs of any of them, including:

• any information that is specifically designated by any of them as confidential;
• any information which, by its nature, may reasonably be regarded as confidential;
• any information relating to any:
  • agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
  • customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
  • intellectual property rights, of any of them; and
• any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information;
• negotiations in relation to, and the terms of, this agreement,

whether that information is visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to a party including but not limited to any specifications, formulae, know how, concepts, inventions, ideas, software, designs, copyright, trade secrets or any information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter.

Control has the meaning given in section 50AA of the Corporations Act.

Corporations Act means the Corporations Act 2001 (Cth).

Completion Date means, in respect of a Quote, the dates (if any) specified in the Quote as the dates on or before which the Supplier must complete each Engagement or Phase of the Engagement in accordance with clause 5.6.

Default Rate means a rate of interest of 10.00% per annum.

Engagement has the meaning given in clause 2.1, being each individual engagement for the Supplier to provide specific Services to the Client pursuant to a Quote.

Event of Default means any of the following on the part of a party:

• committing any material or persistent breach of this agreement;
• repudiating or, in the reasonable opinion of the Supplier, evincing an intention to repudiate, this agreement;
• if the Client is a Supplier, undergoing a Change of Control without the prior written consent of the Supplier;
• misleading the Supplier in any material way; and/or
• an Insolvency Event occurring in respect of the Client that has not been resolved within 21 days.

Expenses mean the expenses of the Supplier for which the Supplier is entitled to be reimbursed by the Client pursuant to clause 8.6.

Facilities includes toilets, portable lunch rooms and crib rooms, printers, working space, computer equipment, access to the internet and the Client’s computer network, telecommunications system and similar. It includes access to such resources but also use of them to the extent required by the Supplier in order to perform the Services.

Fees has the meaning given in clause 8.1.

Fixed Price means, in respect of a particular Engagement, if, as specified in the relevant Quote:

(a) if the Services are not divided into Phases, the price (exclusive of GST) specified in the relevant Quote for all of the Services; or
(b) if the Services are divided into Phases, the price (exclusive of GST) specified in the relevant Quote for each Phase respectively.

Force Majeure means any act, event or cause (other than lack of funds) which is beyond the reasonable control of the affected party, including:

(a) an act of God, war, sabotage, terrorism, riot, civil disorder, revolution, national or state emergency, martial law, fire, lightning, flood, cyclone, earthquake, landslide, storm or other adverse weather conditions, explosion, power shortage, strike or other labour difficulty (whether or not involving employees of the affected party), epidemic or quarantine; and

(b) an action or inaction of any Governmental Agency (including any Court of competent jurisdiction), such as expropriation, restraint, prohibition, intervention, requisition, requirement, direction or embargo by legislation, decree or other legally enforceable order.

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.

GST has the same meaning given to that expression in the GST Law.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

GST Law has the same meaning given to that expression in the GST Act.

Hourly Rate means the hourly rate set out in the relevant Quote, if applicable.

Insolvency Event means, in respect of a party, any of the following events or any analogous event:

(a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;

(b) where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;

(c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or

(d) the party is otherwise unable to pay its debts as and when they fall due.

In-Scope Work means work that has been expressly and specifically designated as being within the scope of the Services.

Input Tax Credit has the meaning given in the GST Law.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability, whether arising in contract, negligence, tort, equity, statute or otherwise, and that a party pays, suffers or incurs or is liable for, including all:

(a) liabilities on account of federal or state tax;
(b) interest and other amounts payable to third parties;
(c) legal and other professional fees and expenses on a full indemnity basis and other costs incurred in connection with investigating, defending or settling any Claim; and
(d) all amounts paid in settlement of any Claim.

Non-Solicitation Period means 6 months, 12 months, 18 months.

Notice means any notice or other communication by one party to the other party under the terms of this agreement including but not limited to any request, demand, consent, waiver or approval.

Out-of-Scope Rate has the meaning given in clause 8.2.

Out-of-Scope Work means any work that is not In-Scope Work, including the work specifically described as being out of scope in the Quote (if any).

Phase means any particular phase of the Services as specified in the Quote.

Quote means, in respect of a particular Engagement, the document headed “Quote” or similar setting out the scope of the Services for that Engagement as provided by the Supplier to the Client and accepted by the parties in accordance with this agreement.

Related Entity has the meaning set out in the Corporations Act 2001 (Cth).

Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.

RFQ means a request for quote made by the Client to the Supplier pursuant to clauses 4.1 and 4.2.

Services means the services provided by the Supplier to the Client under this agreement in respect of each Engagement, as set out in the relevant Quote.

Supplier means Lake Rigging WA Pty Ltd trading as LR WA (ABN 41 674 303 096).

Tax Acts means the Income Tax Assessment Act 1936 (Cth) and the Income Tax Assessment Act 1997 (Cth).

2. Incorporation of Terms

2.1

These terms and conditions are incorporated into each and every contract of service (each an Engagement) entered into between the Supplier and the Client.

2.2

The Client’s submission of a purchase order or making a booking for work after the Client’s receipt of a Quote shall constitute acceptance of the terms of this agreement.

2.3

The Supplier may replace these terms at any time with new terms. The new terms shall prevail over the old terms from the date of the replacement.

2.4

If there is any inconsistency between these terms and the Quote, the Quote shall prevail.

3. Nature of Relationship Between Supplier and the Client

3.1

The Supplier is an independent contractor of the Client and nothing in this agreement constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.

The Supplier does not have, and will not hold themselves out as having, any authority to bind the Client in any matter including but not limited to any contracts, commitments, expenses, liabilities or obligations of any nature.

4. Formation of Contract RFQ

4.1

The Client may from time to time request the Supplier to provide a quote for a certain scope of works by submitting an RFQ.

4.2

An RFQ must contain:

(a) the Client’s name, ABN, address;
(b) details of the Services required;
(c) site locations;
(d) site plans;
(e) work schedule involving other trades;
(f) expected commencement and completion dates of work; and
(g) data, plans, instructions, documents, descriptions, reports, advice, accounts, drawings, photographs or any other material relevant to the work.

4.3 - Quote

Upon receiving an RFQ, the Supplier may provide the Client with a Quote.

4.4

Without limiting the operation of law, the Quote incorporating these terms is deemed to be accepted on the earliest of:

(a) written communication by the Client of acceptance of the Quote and its terms;
(b) issuance of a purchase order by the Client for the Services;
(c) the Client making a booking for the Services; or
(d) if a Client issues a purchase order error and the Supplier accepts the acknowledgment of purchase order.

5. The Services

5.1

In consideration for the Client agreeing to pay the Fees to the Supplier, the Supplier will provide the Services to the Client subject to the terms of this agreement.

5.2 - Standards and Duties

The Supplier warrants that, in providing the Services, it will use its best endeavours to:

(a) Honesty and diligence – act honestly and diligently and provide the Services to the best of its knowledge and abilities;
(b) Standards – at all times maintain reasonable ethical, professional and technical standards;
(c) Discrimination and harassment – not unlawfully discriminate against, sexually harass or otherwise physically or verbally abuse any person.

5.3

The Supplier is permitted to use other persons to provide some or all of the Services.

5.4

The Supplier is responsible for the work of any of the Supplier's subcontractors.

5.5

Any work undertaken by any of the Supplier's subcontractors will be undertaken to the same standard as stated in this agreement and the specification.

5.6 - Completion Dates

The Supplier must use their best endeavours to complete each Engagement, or as the case may be, each Phase of the Engagement, to the reasonable satisfaction of the Client, acting reasonably, on or before the relevant Completion Date (if any), but the Supplier provides no warranty that any result or objective can or will be achieved or attained by the Completion Date or any other date.

5.7

The Services will be performed by the employees or agents that the Supplier may choose as most appropriate to carry out the Services.

5.8 - Delays: Client to Pay Supplier’s Costs and Supplier Not to Pay Client’s Costs

If for reasons not attributable to the Supplier:

(a) the Supplier is not able to commence work on a scheduled commencement date;
(b) the Supplier is not able to undertake work on site; or
(c) the Supplier is otherwise unable to complete an Engagement, or a Phase of an Engagement by the relevant Completion Date as a result of supply chain shortages,

the relevant Completion Date for an Engagement, or a Phase in an Engagement, will be deferred to a date that the Supplier may reasonably determine, and:

(d) the Supplier is not liable to compensate the Client for any delay; and
(e) the Client agrees to pay the Supplier any costs it incurs due to, attributable to, or arising from the delay, including (but not limited to) any expenses and fees payable by the Supplier to third parties.

5.9

The Client acknowledges and agrees that:

(a) its limitations and obligations arising under clause 5.8 (including clauses 5.8(d) and 5.8(e)) are fair and reasonable, and are reasonably necessary to protect the Supplier's legitimate interests, as delays (including delays of up to one day) can lead to substantial loss to the Supplier due to the nature of the industry in which the Supplier’s business operates whereby the Supplier is obligated to continue paying third party hire and service costs during any period of delay;

(b) its inability to be compensated by the Supplier for its losses under clause 5.8(d) may result in significant loss to the Client;

(c) its obligation to pay the Supplier’s costs under clause 5.8(e) may result in the Client paying a significant amount or amounts to the Supplier;

(d) the Client has carefully considered, understood and been given the opportunity to obtain independent advice in respect of the full extent of the operation of clause 5.8; and

(e) the Client has knowingly, freely and willingly accepted its obligations under clause 5.8 including accepting all risks and losses that arise to the Client by the operation of clauses 5.8(d) and 5.8(e).

6. Supplier’s Obligations

6.1 - Insurance

The Supplier must take out all insurance required by law including:

(a) worker's compensation insurance as prescribed by law for the Supplier’s personnel; and
(b) public liability insurance for a minimum of an amount to be agreed for each occurrence.

6.2 - Compliance with All Laws

The Supplier must comply at the Supplier’s own cost and expense with all acts, ordinances, rules, regulations, other delegated legislation, codes and the requirements of any Commonwealth, State and Local Government departments, bodies, public authorities or other authority.

This requirement applies to the Supplier or to the Services. The Supplier must indemnify the Client from and against all actions, costs, charges, claims and demands in respect thereof.

7. Client’s Obligations

7.1

To facilitate the Supplier’s performance of the Services, the Client will:

(a) co-operate with the Supplier as the Supplier reasonably requires;
(b) provide the information and documentation that the Supplier reasonably requires;
(c) make available to the Supplier such Facilities as the Supplier reasonably requires;
(d) comply with all laws relating to work health and safety;
(e) ensure that the project site and access ways are safe, ready and available for Supplier to provide the Service without restriction or interruption; and
(f) ensure that the Client’s staff and agents cooperate with and assist the Supplier.

7.2

The Client will not charge for the Supplier's use of the Facilities made available by the Client.

7.3

If the Client does not comply with clause 7.1, without limiting the Supplier’s rights in connection with any breach, the Client agrees to pay any additional costs and expenses which are reasonably incurred by the Supplier.

8. Fees

8.1 - Payment of Fees

In respect of each Engagement, the parties have agreed that the total price for the relevant Services (exclusive of GST and Expenses, and including a Deposit where relevant) (the Fees) will be, if as designated in the relevant Quote:

(a) Not Phases

The Services are not divided into Phases and:

(i) Fixed Price – a Fixed Price applies, that Fixed Price payable in arrears upon completion of the Services to the reasonable satisfaction of the Client; or

(ii) Hourly Rate – the Hourly Rate applies, calculated on the basis of the time spent by the Supplier in exclusively providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 8.3 and payable in arrears upon completion of the Services to the reasonable satisfaction of the Client,

and the Supplier will invoice the Client by way of a single invoice for all relevant Charges following completion of all relevant work to the reasonable satisfaction of the Client;

(iii) Other costs – the Supplier acknowledges the Fees and any Expenses are inclusive of and allow for all costs and expenses incurred by the Supplier, and any items supplied by the Supplier, in providing the Services and complying with the Supplier's obligations under this agreement and the Supplier will not be entitled to payment of any amount in addition to the Fees and any Expenses.

(b) Phases

The Services are divided into Phases and:

(i) Fixed Price per Phase – Fixed Prices apply, the Fixed Price for each Phase payable in arrears at the end of each Phase respectively; or

(ii) Hourly Rate – the Hourly Rate applies, calculated on the basis of the time spent by the Supplier in exclusively providing those Services on an hourly rate basis at the Hourly Rate in accordance with clause 8.3 and payable in arrears at the end of each Phase respectively,

and the Supplier will invoice the Client for all relevant Charges for each Phase following completion of each Phase respectively to the reasonable satisfaction of the Client.

(c) Cost-Plus

The Services are agreed to be supplied on a “Cost-Plus” basis (as that term is used in the construction industry) and:

(i) all the project costs that the Supplier incurs in supplying the Services (including materials, labour, subcontractors, and equipment); and
(ii) the predetermined profit margin as described in the Quote including any incentive or award fees (if applicable),

and the Supplier will invoice the Client by way of a single invoice for all relevant Charges following completion of all relevant work to the reasonable satisfaction of the Client.

8.2 - Out-of-Scope Work

Notwithstanding clause 8.1, the Client will pay the Supplier the following hourly rates (the Out-of-Scope Rate) for any Out-of-Scope Work:

Personnel roleRate (ex GST)Rigger$110Welder/Boilermaker$120Crane Operator$115Supervisor$125Labourer/Machine operator$85Admin$75

8.3

Hourly Rates and Out-of-Scope Rates shall be proportionately charged for work involving periods of less than one hour and structured in 15-minute segments. For example, the time charged for an attendance between 15 and 30 minutes will be the rate of 0.5 hour.

8.4

The Supplier must keep and maintain accurate records of the number of hours of Services in respect of which the Hourly Rate and/or Out-of-Scope Rate applies and provide the Client with a copy of such records upon reasonable notice as may be requested by the Client from time to time.

8.5

The Supplier may change the Hourly Rates and Out-of-Scope Rates by giving thirty (30) days’ written notice to the Client of the date from which the new Hourly Rate and Out-of-Scope Rate are to apply.

8.6 - Reimbursement of Expenses

The Client will pay all reasonable expenses properly and necessarily incurred by the Supplier in the course of providing the Services, provided that the Supplier:

(a) obtains the Client’s written consent before incurring the expenses;
(b) provides the Client with acceptable documentation for the expenses incurred; and
(c) complies with any applicable expenses policy of the Client in force from time to time, provided that a copy of the policy has been provided to the Supplier by the Client prior to the relevant expense being incurred.

9. Payment

9.1 - Timing of Payments

The Client must pay to the Supplier all Charges properly invoiced pursuant to clause 8.1 in full on or before the date that is 28 days after the Client’s receipt of the relevant invoice, or another date approved by the Supplier in writing.

9.2 - Method of Payment

All amounts to be paid by a party to another party under or in connection with this agreement must be paid in cash or by way of bank cheque or electronic funds transfer into the account nominated by the other party.

9.3 - No Set-Off or Deduction

Unless otherwise agreed in writing and subject to clause 9.4, all amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement.

9.4

If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.

9.5 - Default Interest

If a party fails to pay any sum payable by it under this agreement at the time and otherwise in the manner provided in this agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly.

Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party in respect of any late payment under this clause 9.5 is in addition to any other remedies that the other party may have in respect of such late payment.

9.6 - Suspension of Services

If the Client fails to pay any sum payable by it under this agreement at the time and otherwise in the manner provided in this agreement, the Supplier may at its absolute discretion immediately suspend its services to the Client until the Client has made payment of the amount owing in full.

The Supplier’s right to suspend services under this clause 9.6 is in addition to any other remedies that the Supplier may have in respect of the Client’s failure to make such payment.

10. Security for Payment

10.1 - Definition

In this clause:

PPSA means the Personal Property Securities Act 2009 (Cth).

PPSA Security Interest has the same meaning given to the term “security interest” in the PPSA.

PPSA Personal Property means all the Client’s present property and after-acquired property and present and after-acquired PPSA retention of title property including present and after-acquired proceeds from the sale of any such property.

Other Property means all property of the Grantor that is not PPSA Personal Property (whether present or acquired after the execution of this deed).

10.2 - Grant of Security

The Client grants to the Supplier:

(a) a PPSA Security Interest over all PPSA Personal Property; and
(b) a fixed charge over all Other Property,

to secure the complete and punctual payment of all monies under this Agreement.

10.3

If the Client is a trustee of a trust, the Client grants the security interests in its personal capacity and in its capacity as trustee of the trust.

10.4 - Attachment

The Client acknowledges and confirms that the Supplier have given value for the security interests including by the Supplier’s promise to provide and make available credit to the Client for the supply of Services.

10.5 - After-Acquired Property

The Client acknowledges that, for the purposes of section 20(2)(b)(ii) of the PPSA, the PPSA Security Interest over all PPSA Personal Property is taken in all of the Client’s present and after-acquired property.

10.6 - Where Notice or Time Period Is Not Required

Unless required by an applicable law that cannot be excluded:

(a) the Supplier may exercise any right under this clause without first giving any notice to the Client or allowing the lapse of any period of time; and
(b) the parties expressly agree to dispense with any requirement under any law that notice be given or that the lapse of any period of time be allowed before any rights are exercised.

10.7 - Where Notice or Time Period Is Required

If any applicable law that cannot be excluded requires a notice to be given or a lapse of time to occur before any right can be exercised, then:

(a) when a period of notice or lapse of time must be given and that period cannot be varied, that period of notice must be given or that lapse of time must occur or be permitted by the Supplier.

10.8 - PPSA Notices

Without limiting clause 10.6, the Supplier is not obliged to give any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

The Client consents to the waiver of the requirement for notice under this clause 10.8 and waives any rights it has to receive a notice under sections 95, 118, 121(4), 130 and 157 of the PPSA.

10.9 - Contracting Out of PPSA Provisions

To the extent that Chapter 4 of the PPSA would otherwise apply to enforcement by the Supplier of any security interest, the parties agree that:

(a) to the extent permitted by section 115(1) of the PPSA, the Supplier need not comply with sections 125, 132(3)(d), 132(4);
(b) sections 142 and 143 of the PPSA are excluded; and
(c) to the extent permitted by section 115(7) of the PPSA, the Supplier need not comply with sections 132 and 137.

10.10

The Client consents to the waiver of the requirement for notice under any other provision of the PPSA that the Supplier may notify to the Client after the date of this deed and waives any rights it has to receive that notice.

11. GST

11.1 - Definitions Regarding GST

In this clause 11:

(a) expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;

(b) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 11; and

(c) any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 11.

11.2 - Consideration Is Exclusive of GST

Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 11.

11.3 - Receiving Party to Pay Additional Amount

If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment.

Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this agreement.

11.4 - Fines, Penalties and Interest

The amount recoverable on account of GST under this clause 11 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 11.

11.5 - Reimbursement

If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.

11.6 - Adjustment Events

If, at any time, an adjustment event arises in respect of any supply made by a party under this agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause 11.3 and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.

12. Confidentiality

12.1

Subject to clauses 12.2 and 12.3, a person who has received Confidential Information from another party must:

(a) keep all Confidential Information confidential;
(b) not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;
(c) not disclose or make available any Confidential Information in whole or in part to any third party;
(d) not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the discloser).

12.2 - Exceptions

A party may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information but only in the proper provision of the Services and performance of its duties under this agreement and provided that it informs such Representatives of the confidential nature of the Confidential Information before such disclosure.

12.3

The obligations in clause 12.1 will not apply to any Confidential Information which:

(a) was already known to the person on a non-confidential basis prior to the time of its first disclosure, unless it came to be so known as a direct or indirect result of having been unlawfully obtained or received from a third party that owed a confidentiality obligation;

(b) is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of a breach of this agreement;

(c) is required by law or court order to be disclosed, provided that the disclosing party must promptly notify owner of the Confidential Information in writing in advance of any such disclosure, if reasonably practicable; or

(d) is authorised for release or use by the written pre-approval of the owner of the Confidential Information but only to the extent of such written pre-approval.

13. Liability, Indemnity and Remedies

13.1 - Client’s Breach

The Client irrevocably indemnifies and covenants to hold the Supplier harmless from and against all Losses suffered by the Supplier (including third party claims on the Supplier) which arise in connection with any breach of this agreement by the Client and/or any negligent or other tortious conduct of the Client.

13.2 - Supplier’s Breach

In respect of Claim for Losses arising from factors attributable to the action or omission of the Supplier and its Representatives, the Supplier’s liability is limited, at the Supplier’s election, to one or a combination of the following remedies:

(a) re-supply of the Services;
(b) payment of the costs of re-supply of the Services by a third party; or
(c) the refund of any amounts paid (either in full or part) by the Client to the Supplier under this agreement in respect of the Services.

13.3 - No Indirect Losses

Neither Party is liable to the other Party in contract, tort, negligence, breach of statutory duty or otherwise for any loss, damage, costs or expenses of any nature whatsoever incurred or suffered by that other Party of an indirect or consequential nature including any economic loss or other loss of turnover, profits, business or goodwill.

The provisions of this clause do not apply to clauses 13.1 and 13.2.

13.4 - Force Majeure

In the event of Force Majeure, to the maximum extent permitted by law, the Supplier and its Representatives are not liable for any damage and/or delay in the performance of any obligation of the Supplier under this agreement where such damage or delay is caused by circumstances beyond the reasonable control of the Supplier.

The Client acknowledges and agrees that the Supplier holds the benefit of this clause 13.4 for itself and as agent and trustee for and on behalf of each of its Representatives.

14. Termination

14.1 - Termination for Breach

Each party may terminate this agreement immediately by notice to the other party if an Event of Default occurs in respect of the other party.

14.2

If a party commits any material or persistent breach of this agreement (the Defaulting Party), the other party may (but is not obliged to) provide the Defaulting Party with a notice of breach in writing.

If the Defaulting Party fails to remedy the breach within 15 Business Days, or such other period as agreed, after the date of its receipt of such notice, the other party may terminate this agreement with immediate effect upon providing the Defaulting Party with a further notice of termination in writing.

14.3 - Effect of Termination

In the event of any termination of this agreement in any circumstances and for any reason whatsoever:

(a) the Client will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, in the event of any termination of this agreement by the Client, including Charges incurred by the Supplier for the purchase of materials for those Services prior to such termination); and

(b) the Supplier will send to the Client a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clause 9 will apply in respect thereof.

14.4 - During Notice Period

In the event that the Supplier’s engagement under this agreement is terminated upon notice by either party, the Client may, at its absolute discretion, require the Supplier to refrain from providing the Services during the relevant notice period.

14.5 - Partially Completed Deliverables

Upon the cessation of the Supplier’s engagement under this agreement, subject to payment of all outstanding Charges by the Client in accordance with the terms of this agreement, the Supplier will deliver to the Client any and all partially completed deliverables that are included within the scope of the Services.

14.6 - Legislation

If any provision of this agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of this agreement, to the maximum extent permitted by law:

(a) time is of the essence in respect of all obligations of that party under this agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and

(b) any breach of this agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,

and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.

14.7 - Accrued Rights

Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

14.8 - Survival

The obligations of the parties under clause 12 (Confidentiality), clause 13 (Liability, indemnity and remedies), clause 15 (Non-solicitation) and this clause 14 will survive the termination of this agreement.

15. Non-Solicitation

15.1

During the Supplier's engagement with the Client under this agreement and for each Non-Solicitation Period thereafter, the Client must not, without the Supplier's prior written consent (which the Supplier may withhold or delay in its absolute discretion), directly or indirectly:

(a) non-solicitation suppliers – interfere with or disrupt, or attempt to interfere with or disrupt, any relationship, whether contractual or otherwise, between the Supplier and any of the Supplier's suppliers, distributors or joint venture partners, or identified prospective suppliers, distributors or joint venture partners; or

(b) non-solicitation of staff – induce, encourage or solicit any of the Supplier's officers, employees, contractors or agents to cease their employment, engagement or agency with the Supplier.

15.2

The Client acknowledges and agrees that:

(a) the restraints in clause 15.1 constitute several separate covenants and restraints consisting of each of clauses 15.1(a) and 15.1(b) combined with each separate Non-Solicitation Period severally;

(b) each of those separate covenants and restraints is a fair and reasonable restraint of trade that goes no further than is reasonably necessary to protect the Supplier's goodwill and business;

(c) the Client has received substantial and valuable consideration for each of those separate covenants and restraints, including its receipt of the Services; and

(d) breach by the Client of any of those separate covenants and restraints would be unfair and calculated to damage the Supplier's goodwill and business and would lead to substantial loss to the Supplier.

15.3

The parties intend the covenants and restraints under clause 15.1 to operate to the maximum extent. If any of those separate covenants and restraints would, in the absence of this clause 15.3, be void as unreasonable for the protection of the interests of the Supplier but would not be so void if any part of the wording in this clause 15 was deleted or amended, the separate covenants and restraints will apply with the minimum modifications necessary to make them effective.

16. Notices

16.1

A Notice given to a party under this agreement must be in writing and sent to the address or email address of the relevant party as the relevant party may notify to the other party from time to time in respect of the particular Engagement.

16.2

A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery;
(b) if delivered by commercial courier, at the time of signature of the courier’s receipt;
(c) if sent by pre-paid post, 3 clear days from the date of posting; or
(d) if sent by email, 4 hours after the sent time (as recorded on the sender’s email server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party,

except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.

16.3

To prove service, it is sufficient to prove that:

(a) in the case of post, the envelope containing the notice was properly addressed and posted; and
(b) in the case of email, the email was transmitted to the party’s email server or internet service provider.

17. General

17.1 - Further Assurances

Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.

17.2 - Costs

All costs and expenses in connection with the negotiation, preparation and execution of this agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the party that incurred the costs.

17.3 - Entire Agreement

This agreement contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter.

There are no express or implied conditions, warranties, promises, representations, obligations or other terms, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.

17.4 -Severability

If a provision or the application of a provision of this agreement is invalid, prohibited, void, illegal or unenforceable in a jurisdiction:

(a) it is to be read down or severed or be ineffective in that jurisdiction to the extent of the prohibition, invalidity, voidness, illegality or unenforceability; and
(b) this will not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

17.5 - No Waiver

Any waiver of a right under this agreement must be in writing and signed by the party granting the waiver.

17.6

No failure, delay, relaxation, forbearance or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right in any subsequent matter or prejudice or restrict the rights of the party.

No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.

17.7 - Assignment

A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the other party.

17.8 - Governing Law and Jurisdiction

This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of Western Australia, Australia.

17.9

The parties irrevocably agree that the courts of Western Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this agreement or its subject matter or formation (including non-contractual disputes or claims).

There are a couple of places in the source text that still look legally or grammatically off, not just visually off. For example:

• “if the Client is a Supplier” in the Event of Default definition
• “if a Client issues a purchase order error and the Supplier accepts the acknowledgment of purchase order”
• “site works potion of the job” style issues do not apply here, but some clauses have similar drafting problems
• “this deed” appears in clause 10 even though the document is an agreement

Those look like drafting errors rather than formatting issues. I can do a second pass and give you a cleaned legal-style version that fixes those obvious wording issues while keeping the meaning intact.