1. Definitions and Interpretation

In these Conditions and elsewhere in the Contract, unless a contrary intention appears the following shall mean:

Anti-Bribery and Anti-Corruption Legislation includes any statute, law, code, regulation or similar instrument in connection with the prohibition of bribery and corruption (including by virtue of the place of domicile or operations of TVH and the Client) including but not limited to the Criminal Code Act 1995 (Cth), the Crimes Act 1914 (Cth), the Financial Management and Accountability Act 1997 (Cth), the Commonwealth Authorities and Companies Act 1997 (Cth), the Corporations Act 2001 (Cth) and the Bribery Act 2010(UK).

Associated Goods means the goods, products and, materials or equipment supplied by TVH and associated with TVH’s provision of services in accordance with this Contract and specified in Item 3a of the Contract Particulars and/or TVH Invoice

Associated Goods Fee means the actual cost of Associated Goods plus an amount for margin to TVH specified in Item 4 of the Contract Particulars and/or TVH Invoice.

Client means the person or corporate set out in Item 2 of the Contract Particulars or if no description has been provided, the entity to which TVH is providing the Services.

Commencement and Completion Date means the date agreed and specified in Item 7 of the Contract Particulars or any extension thereof as agreed in writing between the parties on which TVH must commence and complete the services.

Conditions mean these TVH terms and conditions or as amended and agreed between the parties in writing.

Contract means the agreement between the Client and TVH evidenced by the Conditions, the Contract Particulars and/or TVH Invoice, and all other documents which are listed in Item 9 of the Contract Particulars or incorporated by written reference into the Contract by TVH. The Conditions take precedence over all other documents including those listed in Item 9 and any other documents provided by the Client.

Contract Particulars means the key components of this Contract including but not limited to the parties, deliverables, price and payment terms which together with the Conditions and schedules form the Contract.

Contract Price means the total price submitted by TVH either as a lump sum fixed price, Hourly Rate, Associated Goods Fee, Schedule of Fees, Cost plus including disbursements, or a combination of these as detailed in the Contract and in Item 4 of the Contract Particulars.

Force Majeure means act of God, act or omission of government, war, blockade, embargo, hostilities, fire, earthquake, flood, explosion, accident at sea, inclement weather conditions, industrial disputes (except where restricted to employees of TVH), sabotage or commotion, act or omission of the Client, or by any cause (whether similar or not to any of the above events) beyond the reasonable control of TVH.

Hourly Rate(s) means the relevant hourly rate(s) set out in the Contract and in Item 4 of the Contract Particulars (or otherwise the rate that TVH normally charges for work undertaken by the relevant TVH employees(s) at the time the work is undertaken).

Information means any intellectual property whether protected by statute, at common law or in equity, including any patent, invention, copyright, or design right (whether or not registrable), in any design, specification, process, technique, software, know-how, trade secret, technical information, financial information, business method and confidential information.

Legal Requirements means binding legal requirements such as acts, regulations, by-laws, orders, local laws, statute, and mandatory codes, decisions or directions of any competent authority, government department, regulatory body or agency.

Licences means all licences, qualifications, registrations and other statutory requirements necessary for the performance of the Works under this Contract.

Modern Slavery Laws means the Modern Slavery Act 2018 (Cth), Chapter 4, Division 73 of the Criminal Code Act 1995 (Cth) and any relevant regulations, ancillary legislation, rules, guidelines, orders, directions, directives, codes of conduct or other instruments made or issued thereunder, as amended from time to time.

Personnel means TVH’s employees, agents, consultants, subcontractors, invitees and their respective employees, agents, consultants, contractors and invitees.

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

TVH means the service provider listed in Item 1 of the Contract Particulars (ABN 15 149 359 437) or if no description has been provided, the entity named in the TVH Invoice.

TVH Invoice means a correctly rendered invoice setting out the Services and Associated Goods supplied to the Client by TVH and claiming payment for the provision of those Services and Associated Goods.

TVH Plant and Equipment means all goods, products, materials and equipment used by TVH for carrying out the Services other than Associated Goods or which is not intended by TVH to become part of the Works.

Services means all the services and activities TVH has agreed to perform for the Client under its offer and specified in Item 3 of the Contract Particulars and/or TVH Invoice.

Site means the location or locations where the Services are to be performed.

Statement of Work or SOW means a statement of work entered into by the parties in the form set out in Schedule 1 or such other agreed document referencing this Agreement.

Variation means a change in the SOW resulting in an increase or decrease to the Contract Price or chargeable in accordance with the Hourly Rates.

Working with Children Check means the form of the assessment notice issued under the Working with Children Legislation that applies in the State or Territory in which the Client’s site is located.

Working with Children Legislation means any laws, statutes or other directives or requirements in force in the State or Territory in which the Client’s site is located which relate to the appointment of TVH to provide the Works, and TVH’s conduct in carrying out the Works.

Works means the scope of works tendered for as detailed in the Contract, which is inclusive of the Services, and which are works to be performed in accordance with the Contract.

2. Validity Period

The TVH offer is open for acceptance for a period of thirty (30) days from date of tender submission or such time as the parties agree in writing.

3. Deemed Acceptance

In the absence of written acknowledgement, the performance of any of the Works by TVH will be deemed acceptance of the Contract

4. Price

Unless otherwise stated, the Contract Price quoted is net and exclusive of Goods and Services Tax (GST).

5. Payment

The Client shall pay all invoiced amounts in Australian Dollars in accordance with the Time for Payment outlines in Iten 4 of the Contract Particulars.

If the Client fails to pay TVH the full amount stated in the TVH Invoice in accordance with this clause, then TVH may charge interest on the amount unpaid by the Client at a rate of 2% over TVH’s commercial bank overdraft rate.

Where the Client considers an invoice is not correctly rendered, the Client will issue within 5 business days a notice setting out the detailed reasons and identifying amounts in dispute. The Client must pay the undisputed portion of the invoice by the due date. The parties undertake to act in good faith to promptly resolve the dispute or otherwise follow the Dispute Resolution process outlined in clause 22 of this Contract.

Where delivery of the Services spans calendar months, TVH reserves the right to make progress claims for the value of work completed in accordance with this Contract.

6. Access to Site

The Client must provide TVH with access to the Site necessary for TVH to undertake the Services and possession of a sufficient portion of the Site to enable TVH to properly perform the Works without interference.

TVH will be entitled to claim an extension of time and any reasonable costs properly incurred as a result of any delay in performing the Services or gaining access to the site which is directly or indirectly caused by the Client.

7. Services

TVH will undertake the Services in accordance with the Contract and using the due skill, care and diligence.

The Client shall ensure that its employees, consultants, agents and contractors cooperate with TVH and do not interfere with or delay delivery of the Services.

TVH may bring onto site TVH Plant and Equipment and/or Associated Goods that are not sold to the Client, but which are necessary for TVH to carry out the Services. Title in all TVH Plant and Equipment which do not form part of the SOW remains at all times with TVH and TVH may enter the Site at any time to retake possession of the TVH Plant and Equipment and Associated Goods without liability for trespass or for any resulting damage.

TVH must:

1. Perform the Services or deliver the Associated Goods in accordance with the Contract ensuring that the Services and Associated Goods comply with the Contract and any applicable Legal Requirements.
2. Supply the Services and Associated Goods in a competent manner and in accordance with the Contract, any induction
   provided by the Client and the reasonable directions of the Client’s site manager;
3. Not do or cause or allow to be done anything that would materially and adversely affect the Client’s rights concerning the site, or any property on the site;
4. Upon completion of the Services, leave the site in a clean and order manner commensurate with the state prior to commencement of the Services.

The Services and Associated Goods must comply with the Specifications and the description in the Contract and must correspond with any proposal for services or sample of Associated Goods provided by TVH.

TVH must:

1. Deliver the services/Associated Goods in the area specified by the Client on the specified date for performance or delivery and in accordance with the Client’s site manager’s reasonable directions;
2. Ensure there is no damage to the Associated Goods, the site or any party’s property on site;
3. Store its property in a safe manner according to the Client’s site manager’s directions.

If the Client deems, acting reasonably, any Services to be defective, the Client may reject the defective Service by giving notice to TVH, with a proposed rectification strategy.

If the Client deems, acting reasonably, any Associated Goods to be defective, the Client may reject the defective Associated Goods by returning them to TVH or making good the defective Associated Goods.

8. Personnel

TVH must provide suitably skilled, qualified and competent Personnel with appropriate safety equipment to perform the Services.

TVH must ensure all Personnel have the necessary Licenses to complete the works in accordance with the relevant Legal Requirements.

If notified by the Client, TVH must ensure that all Personnel engaged in provision of the Services or Associated Goods hold, where relevant, a current Working with Children Check; and comply with the Working with Children Legislation.

TVH Personnel must, prior to entering the Client’s sites, successfully complete all inductions and sign all undertakings required by the Client and ensure all personnel adhere to the Contract, and the Client’s reasonable rules, practices, policies and requirements.

The Client’s site manager may, acting reasonably, direct TVH to remove from site any of TVH’s personnel or subcontractors.

Save for the delivery of Associated Goods.

9. Information and Documents

The Client will provide all information reasonable requested to enable TVH to carry out the Services. The Client shall be responsible for the completeness and accuracy of all information provided to TVH. TVH will not check or review any information provided by the Client, for the purpose of assessing completeness or accuracy unless that is part of the Services described in Item 3 of the Contract Particulars.

10. Performance

Except to extend provided in this Contract and to the full extent permitted at law, no warranty shall apply to Services provided by TVH, as to fitness for purpose or operation performance of any equipment belonging to the Client. Where specification, suitability, performance, size, number, capacity, ancillary attachments, is recommended, quoted, specified, provided or selected by the Client, or required by TVH to carry out the Services, the Client is responsible for performance of all equipment at Site. TVH is not liable for any failure of the Client’s equipment to perform to any standard specified or requested by the Client or estimated by TVH.

11. Limitation of Liability

Notwithstanding any other provision of this Contract and to the full extent permitted by law, the total liability of TVH to the Client arising out of or in connection with the Contract for all loss, damage, cost or expense suffered or incurred whether in contract or tort (including negligence), in equity, in restitution, by way of warranty or indemnity or under statute shall be limited to the greater of the amount recovered under any policy of the insurance required to be held pursuant to this Contract or the Contract Price. Notwithstanding the foregoing, this limitation and exclusion of liability shall not apply in connection with claims arising from personal injury, fraud or the willful misconduct of a party.

12. Consequential Loss

Notwithstanding any other provision of the Contract and to the full extent permitted by law, neither party is liable for any indirect, special, contingent or consequential losses or damages which includes but is not limited to loss of actual or anticipated profits, loss of opportunity, loss of goodwill or loss of revenue.

13. Proportionate Liability

In relation to clauses 9, 10 and 11 above, TVH shall only be proportionately liable to the extent that TVH caused or contributed to such claim, demand, proceeding, cost, expense, loss, liability, or damage under this Contract.

14. Delays

The Client shall reimburse TVH all reasonable costs including but not limited to overheads incurred by TVH for any delays in the delivery of the Services as a result the Client’s acts or omissions.

15. Defects Liability Period

15.1 The defects liability period will commence from the Completion Date or upon issue of the certificate or practical completion for the Works, which is earlier, and shall be for a period of 12 months, unless otherwise stated in the Contract. Any additional warranty provided by a manufacture for Associated Goods which TVH has supplied will be passed on to the Client on agreement with the manufacturer.

15.2 During the defects liability period, TVH will make good or replace (as determined by TVH) defective Services, excluding;

15.2.1 any interfacing between the Client’s equipment, Site, plant or design (unless expressly included as part of Services and listed in Item 3);
15.2.2 ordinary wear and tear; and
15.2.3 any damage which has been caused or contributed by the Client’s negligence, acts or omissions

16. Personal Properties Securities Act

16.1 In clause 15 words and expressions which are not defined in these Conditions but which have a defined meaning in the PPSA have the same meaning as in the PPSA.

16.2 The Client acknowledges that TVH has a purchase money security interest in Associated Goods sold to the Client including, but not limited to, where the Client has not paid for the Associated Goods in full prior to delivery.

16.3 The Client acknowledges that if TVH has rights and interests in proceeds derived from the Associated Goods such as rights and interests constitute to a security interest in such proceeds.

16.4 TVH may register any security interest on the PPSA register in any manner it chooses (including by registering one or more financing statements in relation to its interest in the Associated Goods, with such expiry dates as TVH determines in its absolute discretion). The Client must provide TVH with any information it requires for the purposes of giving effect to such registration.

16.5 For the purposes of section 157 (3) of the PPSA, the Client irrevocably and unconditionally waives its right to receive any notice from TVH in connection with the registration of a financing statement or a financing change statement in respect of the Associated Goods.

16.6 If Section 95 or chapter 4 of the PPSA would otherwise apply to the enforcement of any security interests then those provisions are excluded, to the extent possible.

16.7 At TVH’s cost, the Client must take any steps (including providing information) TVH reasonably requires to prefect or otherwise ensure the enforceability and priority of any security interests.

16.8 Neither the Client nor TVH will disclose information of the kind described in PPSA section 275(1), unless section 257(7) of the PPSA applies.

16.9 Until TVH’s security interest (whether perfected or not) is satisfied, the Client agrees not to cause or allow a security interest of higher priority to be created in the Associated Goods. If the Client breaches this subclause, the Client shall indemnify TVH for any cost, expense, loss or damage suffered.

17. Intellectual Property Rights

TVH retains all intellectual property and ownership rights and other information relating to the Works which is created or modified by TVH during the Contract. TVH hereby grants to the Client a perpetual, irrevocable, non-exclusive, royalty free, transferable licence to use all Intellectual Property which is used or developed by TVH, for the purpose of or connection with operating the Associated Goods to which this Contract relates.

The Client acknowledges that TVH will not be responsible for any infringement or any intellectual property rights associated with the Services and TVH will not be liable for any claim whatsoever due to TVH’s use of the Client’s intellectual property.

The Client shall indemnify and hold harmless TVH against and from any claim alleging an infringement of all intellectual property rights, moral rights and ownership rights in any information provided by the Client to TVH.

18. Insurance

TVH shall procure and maintain the insurances as specified and marked in Item 10 of the Contract Particulars. Whenever requested by the Client, TVH must produce evidence that the insurances required have been effected and maintained in the form of certificates of currency.

19. Confidentiality

The Client acknowledges and agrees that any information submitted by TVH in its offer which includes but is not limited to pricing, technical specifications and other information is commercial in confidence and submitted solely for evaluation by the Client. Such information must at all times remain confidential and shall not be disclosed to any third party without TVH’s prior written consent.

If such information is disclosed to a third party with TVH’s prior consent, the Client must ensure that as a condition precedent to the passing of such information that the third party accepts and acknowledges to be bound by confidentiality obligations.

20. Cancellation

Either party has the right to cancel this Contract because of any event beyond the reasonable control of either party which alters the ability of the cancelling party to fulfil the terms of this Contract. Any cancellation requires written notice of no less than four weeks including the reasons that are considered beyond reasonable control. Either party may terminate the Contract with immediate effect, by giving written notice to the other party if the other party breaches a provision of the Contract and (a) if the breach is capable of remedy, fails to remedy the breach within a reasonable time (not exceeding 14 days) after receiving notice of the breach; or (b) if the breach cannot be remedied.

The Client may, at any time without cause terminate the Contract by four week’s written notice. The Client agrees if the Client cancels this Contract, it will pay to TVH all outstanding TVH Invoices and for all Associated Goods and/or Services provided to the Client up to the date of cancellation.

The Client will not be liable to make any payment to TVH for the loss of prospective profit or consequential costs, loss or damage; or in excess of the amount that would have been paid had the work under the Contract been completed, and TVH must make all possible efforts to minimise these costs to the Client.

21. Force Majeure

21.1 If performance by TVH of any obligation under this Contract is prevented, restricted or delayed by Force Majeure, then TVH shall be excused from and shall not be liable for failure in performance of the Contract. To the extent that Force Majeure results in a delay, the time for performance of the Contract shall be extended accordingly.

21.2 If supply is delayed for more than four (4) months by Force Majeure and the parties have not agreed upon a revised basis for continuing the Contract by the end of the delay, then either party may may terminate the Contract by providing not less than 30 days’ notice in writing to the other party. In the event of termination of the Contract, TVH shall be entitle to payment for the portion of Services delivered up to the date of Termination.

21.3 If the Supplier experiences a disruption, delay, or increased cost in the provision of the Services, including Associated Goods, caused by factors outside the Supplier’s reasonable control – including but not limited to shortages of materials, labour constraints, transportation delays, port congestion, industrial action, natural disasters, or regulatory changes then the Supplier may pass through to the Customer any actual, demonstrably incurred additional costs arising directly from that supply chain disruption

22. Dispute Resolution

If a difference or dispute between the parties arises in connection with the subject matter or interpretation of this Contract, including a dispute concerning a claim in tort, under statute, or on any other basis in law or equity available under the law governing the Contract (‘Dispute’), either party may by hand or registered post give the other party written notice of the dispute identifying and providing details of the dispute and entitled Dispute Notice (Dispute Notice’).

Withing seven (7) days of receipt of the Dispute Notice representatives of the parties having authority to bind the parties shall confer to seek to resolve the Dispute or agree on a method of doing so and whether that method shall be binding. If a resolution or method of resolution has not been agreed within twenty-one (21) days of the receipt of the Dispute Notice, the General Manager of each of the parties shall confer for the same purpose as the parties’ representatives. All aspects of such conference(s) shall be privileged and unless agreed otherwise on a without prejudice basis.

Neither party may institute legal proceedings in respect of any Dispute unless a Dispute Notice in respect thereof has first been given and then only after a period of twenty-eight (28) days from receipt of such Dispute Notice has elapsed. Nothing in this clause prevents a party seeking urgent injunctive relief or similar interim relief from a court. Despite the existence of a Dispute, the parties must continue to perform their respective obligations under the Agreement other than where the Client has failed to meet the payment terms outlined in Clause 5 of this Contract.

23. Modern Slavery

TVH undertakes to comply with all relevant requirements of Modern Slavery legislation as it relates to the delivery of the Services.

24. General

24.1 The Contract is governed by the law as stipulated in Item 11 of the Contract Particulars and the parties submit to the non-exclusive jurisdiction of those Courts. Where there is no jurisdiction stipulated in Item 11 the jurisdiction is deemed to be
the State or Territory where the Services are provided.

24.2 These Conditions constitute the entire agreement between the parties in respect of the Contract and supersede, replace and override all other discussions, undertakings, terms and agreements. Without limiting the generality of the foregoing, no additional term or condition will apply or have any effect unless expressly agreed to in writing by TVH.Any waiver partly or whole of the terms of the Contract will be valid only if in writing and signed by TVH.

24.3 Any provision of the Contract that is prohibited or unenforceable, such unenforceability shall not invalidate the remaining provisions of the Contract nor affect the validity or enforceability of that provision.

24.4 If additional terms and/or conditions are attached to, incorporated into or accompany the Client’s order, those terms and/or conditions are not accepted by TVH and do not form part of the Contract unless expressly accepted in writing or signed by an authorized representative of TVH

24.5 Nothing in this Contract constitutes the parties as partners or agents of the other and no party has the authority to bind the other legally or equitably except as expressly stated in this Contract.

24.6 A party may send a notice in connection with the Contract by hand delivery, pre-paid post or email to another party at the address details set out in item 1 and 2 of the Contract Particulars or in such other way as the recipient party may have last notified each other party in writing. A notice is deemed to be received:

• if sent by hand delivery, at the time of delivery if on a business day at or before 5:30 pm, otherwise on the next business day;
• if sent by pre-paid post, on the second business day after the date of posting; or
• if sent by email, at the time of sending if on a business day at or before 5:00 pm, otherwise on the next business day, provided that the sender does not receive a subsequent ‘Out of Office’ reply or similar response or a system administrator message stating that the email did not reach its intended recipient

25. Anti-Bribery and Corruption

TVH undertakes to comply with all relevant requirements of Anti-bribery and Corruption legislation as it relates to the delivery of the Services.

26. Building Code

26.1 Where applicable the Service Provider must comply with the Building Code under the Fair Works (Building Industry) Act 2012 (“the code”). Copies of the Code are available at www.fwbc.gov.au/what-building-code

26.2 The Service Provider shall permit the Commonwealth, including a person occupying a position in the Office of the Australian Building and Construction Commissioner, full access to construction sites or places covered by the Code to:

26.2.1 inspect any work, material, machinery, appliance, article or facility;
26.2.2 inspect and copy any record relevant to the Works the subject of this Contract;
26.2.3 interview any person;
26.2.4 request a party to this Contract to produce a specified document within a specified period, being not less than 14 days in person, by fax or by post, as is necessary to allow validation of its progress in complying with the Code.
26.3 The Service Provider shall not appoint a sub-contractor, consultant, or supplier in relation to the Works where the appointment would breach a sanction imposed in relation to the Code.
26.4 The Service Provider shall ensure that all sub-sub-contracts impose obligations on the sub-subcontractor’s equivalent to the obligations under this clause.

27. Indemnity

TVH will indemnify the Client against any liability, loss, injury, death or damage occasioned by the provision or purported provision of the Services as a result of any willful or negligent act or omission by the Service Provider or its sub-contractors. TVH’s liability under clause 27 shall not exceed the amount claimable under the Insurances.

28. Variations

If the Client requests any variation to the SOW or any variation is necessary for the continued performance of the Contract (whether due to unforeseen circumstances, site conditions not being as expected, other factors not being as represented or assumed by TVH or otherwise), then the Contract Price shall be adjusted by the variation quoted (where requested by the Client) or detailed on TVH’s invoice. TVH is not obliged to perform the variation or, if the variation is necessary for the continued performance or completion of the Work, to perform any further of the Work until the Client and TVH have agreed on all relevant terms in relation to the performance of, and payment for, the variation.