Terms and Conditions

Supplier Agreement Terms and Conditions

Future Property Group Standard Supply Agreement Conditions

All offers made by the Future Property Group Solutions Pty Ltd (ACN: 680 075 601) (ABN: 57 680 075 601) of 43 High Street Gawler East SA 5118 (Future Property Group) to purchase the Goods and Services as described in Annexure A that are manufactured, sold, supplied or provided by the Supplier shall be subject to these Standard Supply Agreement Conditions unless otherwise agreed in writing.

1. DEFINITIONS

In this Contract, except where the context otherwise requires:

Acceptance means that stage in the delivery of the G&S under this Supply Agreement when:

(a) the G&S have been Delivered to the Future Property Group;

(b) the G&S are free from apparent Defects and are intact, undamaged and otherwise fit for their required purpose;

(c) those tests which are customarily required or are otherwise required by the Head Contract have been undertaken on the G&S;

(d) all certificates, licences, consents, approvals and permits that the Supplier is required to obtain under this Subcontract have been obtained and copies provided to the Future Property Group;

(e) all warranties required by the Head Contract have been provided to the Future Property Group;

(f) the documents and other information required to be provided or otherwise customarily provided including those which are essential for the use, operation and maintenance of the G&S have been provided to the Future Property Group.

Best Industry Practice means that degree of skill, care, prudence and foresight which would reasonably and ordinarily be expected of a skilled and experienced contractor engaged in the same type of project or supply as the Supplier under the same or similar circumstances.

Business Day means any day other than a Saturday, Sunday, statutory public holiday in the State in which the Delivery Address is located, or the 27, 28, 29, 30 or 31 December.

Claim means any action, suit, claim, proceeding, demand or loss whatsoever including without limiting the generality of the foregoing any claim howsoever arising out of, relating to or connected with the Contract including:

(a) present, unascertained, immediate, future or contingent; or

(b) in contract or in tort including negligence or under statute or for breach of fiduciary duty or statutory duty, by reason of any other principle whether legal, equitable or statutory; or

(d) for breach of any provision, warranty, representation, obligation, indemnity or express or implied undertaking; or (e) For costs whether ordered or not or assessed or taxed in relation to any proceedings or otherwise.

Contract Sum means the aggregated total set out in Annexure A excluding GST.

Control Sample means a sample of any G&S which is provided by the Supplier to the Future Property Group as an example of the quality, condition, colour, pattern, texture, dimensions, geometry, composition, mass or volume of the G&S.

Date for Delivery means the date specified in the Order which the G&S are to be delivered to the Future Property Group.

Date of Delivery means the date the G&S are actually delivered to the Future Property Group.

Defects or Defective means any:

(a) defect, shrinkage, fault, error, omission, inaccuracy or discrepancy of any G&S provided under this Contract;

(b) any aspect of the G&S supplied under this Contract which is not in accordance with this Contract;

(c) any damage to, or loss of the G&S or any part thereof that would not have occurred but for any such defect, shrinkage, fault, error, omission, inaccuracy, discrepancy or aspect.

Delivery, Delivered, Supply or Supplied means the time at which the G&S have been completed and/or delivered to the Future Property Group’s Delivery Address and are capable of being used for their stated or intended purpose and have been accepted by the Future Property Group in accordance with this Contract.

Delivery Address means the address set out on the Order.

Goods & Services or G&S means all services, goods, equipment, materials, articles, or any other property or parts to be provided to the Future Property Group by the Supplier under this Contract and includes, without limitation, design, manufacture, inspection, testing, expediting, quality assurance and control, painting, packing and delivery as specified or required hereunder and any works, necessary to carry out or incidental to the Order and the Supplier’s obligations under this Contract.

GST has the meaning given to it in the GST Law.

GST Law means the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any updated or replacement legislation.

Head Contract means the construction contract (whether commercial or domestic) between the Future Property Group and the proprietor or lessee of the Project Address.

Intellectual Property means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trademarks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields whether or not registered or registrable and includes any rights to protect or apply for the registration, renewal or extension of such rights.

Order means the offer to purchase G&S as described in Annexure A, and includes these terms and conditions upon which the Goods & Services are to be manufactured, sold or supplied by the Supplier to the Future Property Group.

PPSA means the Personal Property Securities Act 2009 (Cth). Words and expressions which are not defined in this document but which have a defined meaning the PPSA or regulations made under the PPSA have that same meaning.

Services means the services to be provided to the Future Property Group by the Supplier under this Contract.

SOPA means the Building and Construction Industry Security of Payment Act 2009 (SA).

Contract means these Standard Supply Agreement Conditions and Supply Agreement Schedule together with Annexure A.

and like words have a corresponding meaning.

2. PARAMOUNTCY OF THESE TERMS

2.1 The Supplier acknowledges and agrees that the terms of this Contract shall apply to all orders for G&S provided by the Future Property Group (at any time and to any address) unless otherwise agreed between the parties.

2.2 To the extent that any tender, quote, picking slip or other document produced by the Supplier contains alternative terms or purports to depart from the terms of this Contract, the Supplier agrees that those terms are of no effect and the terms of this Contract shall apply.

2.3 For the purposes of agreeing to vary the terms of this Contract, this requires the approval of a director of the Future Property Group.

3. PRICES

All such prices shown in the Order are from the date of the Order and include all necessary and ancillary items including but not limited to freight, cartage, insurance, inductions, site meetings, project management, printing and use or supply of pallets and containers unless otherwise shown in the Order. No increase in prices for the G&S that are the subject of this Order shall be allowed unless prior approval in writing is obtained from the Future Property Group.

4. PERSONAL PROPERTY SECURITIES ACT

4.1 Where terms are not otherwise defined in this Contract, terms used in this clause have the meaning given to them in the PPSA.

4.2 Where the Future Property Group has made progress payments to the Supplier for G&S completed and / or procured by the Supplier to fulfil the Order, ownership in and title to all G&S in Progress regardless of the level of completion or processing shall pass to the Future Property Group, and the Supplier must clearly identify such Work in Progress as the property of the Future Property Group, however any risk remains with the Supplier until such G&S are Delivered and the Future Property Group has signed the delivery receipt.

4.3 The Supplier agrees that the terms of this Contract may constitute one or more Security Interests for the purpose of the (‘PPSA’) and that:

(a) to perfect any such Security Interest the Future Property Group may register a financing statement(s) on the Personal Property Securities Register;

(b) the Supplier shall have no rights under sections 95, 118, 121(4), 125, 130, 132, 135 142 and 143 of the PPSA;

(c) the application of Part 4.3 (other than sections 123, 124, 126, 128, 129(1), 133, 134(1) and 136) of the PPSA is contracted out of if that Part would apply by virtue of section 116(2) of the PPSA; and

(d) the Supplier waives its right to receive notice of a verification statement under section 157 of the PPSA.

4.4 The Supplier must promptly on request by the Future Property Group provide any such information and execute and deliver any such documents as the Future Property Group may reasonably require to protect the Security Interests granted to the Future Property Group by the Supplier under or in relation to this Contract.

5. DELIVERY

5.1 The Supplier shall deliver the G&S to the Delivery Address shown on the Order by the Date for Delivery.

5.2 All G&S must be appropriately packaged or otherwise prepared for transportation to avoid damage, to comply with delivery carrier requirements and to attract minimum transportation costs and insurance rates.

5.3 If the Future Property Group determines that the G&S are damaged or Defective at any time prior to Acceptance, the Supplier shall remove and replace the damaged or Defective G&S by the time directed by the Future Property Group.

5.4 All Supplier invoices, packing slips, delivery dockets, correspondence and other related documentation must clearly show the order number endorsed on the Order.

5.5 The G&S shall be delivered at no additional cost to the Future Property Group to the Future Property Group’s Delivery Address shown on the Order unless otherwise agreed in writing.

5.6 Time shall be of the essence in delivery of the G&S on the Order.

5.7 The Future Property Group reserves the right to nominate a time for delivery of G&S. If the G&S cannot be delivered at the time nominated by the Future Property Group, the Supplier must immediately notify the Future Property Group who may nominate a different time for delivery.

5.8 If, for any reason, a delay in delivery of the G&S results in an additional cost being charged to the Future Property Group by any third-party, the Supplier acknowledges and agrees that it will make payment of that amount which may, if permitted by law, be set-off against other amounts otherwise owing to the Supplier for the avoidance of doubt, this includes any liquidated damages charged to the Future Property Group under the Head Contract.

5.9 The Future Property Group accepts no liability for any G&S that are delivered in excess of either the quantity ordered or (if applicable) any delivery schedule as approved by both parties.

5.10 If the Supplier fails to deliver all or any of the G&S by the Date for Delivery or in accordance with any mutually agreed delivery schedule, then the Future Property Group in its absolute discretion with or without prior notice may treat the Order as having been repudiated by the Supplier and the Future Property Group shall be entitled to recover from the Supplier:

(a) an amount equal to the total profit lost by the Future Property Group on any and all contracts in which the G&S, or any item forming part of the G&S were to be utilised or form part of;

(b) any liquidated damages, costs, penalties or other expenses the Future Property Group may incur or may thereafter incur as a direct or indirect cause of such repudiation; and

5.11 Risk in the G&S shall pass to the Future Property Group upon Acceptance. Title to the G&S shall pass to the Future Property Group upon Delivery. If any G&S are rejected in accordance with the terms of this Contract, title and risk in those rejected G&S shall revert to the Supplier immediately upon notice to the Supplier.

6. INSPECTION AND ACCEPTANCE OF GOODS

6.1 All G&S shall be fit for the purpose for which they are required. The Supplier must use new and undamaged materials, unless otherwise specified in the Contract and the workmanship of the G&S must be of the highest quality and standard. The G&S shall be carried out, manufactured, sold, supplied and provided by the Supplier in accordance with all applicable Australian Standards and / or other relevant codes, the requirements of all relevant statutory authorities and the law.

6.2 The Supplier represents and warrants that all G&S delivered under this Contract comply with all applicable Australian Standards and other relevant codes and any requirements by a statutory authority and the law.

6.3 The Supplier is solely responsible for controlling the quality of the G&S and shall only supply to the Future Property Group those G&S which conform to requirements of the Order and this Contract and are fit for purpose. The Supplier shall complete inspections and tests on the G&S as required by the Future Property Group and make the completed inspection and test records available to the Future Property Group upon request. Where the Order contains particular specification requirements for the G&S, the Supplier will provide an endorsed Certificate of Compliance with the G&S confirming that all of the specification requirements of the Order and this Contract have been satisfied.

6.4 If the Supplier has provided a Control Sample which has been approved by the Future Property Group (Approved Control Sample), any G&S which is delivered which deviates from the Approved Control Sample may be rejected by the Future Property Group in its sole discretion and the Supplier is responsible to make good any damage, costs or losses as a result of any deviation from the Approved Control Sample.

6.5 The Supplier shall ensure that all drawings and data used have been certified for construction and that G&S are manufactured to such drawings and data or any subsequent revisions thereof.

6.6 The Supplier warrants that it has all information, drawings and data necessary for it to supply the G&S in accordance with this Contract and in compliance with the requirements set out in the Head Contract.

6.7 The Supplier acknowledges and agrees that the G&S delivered to the Future Property Group are accepted subject to the Future Property Group’s final inspection. The provision of a Delivery Receipt for any part, any or all G&S signed by the Future Property Group or payment in full or in part shall not constitute Acceptance of the G&S by the Future Property Group.

6.8 Notwithstanding payment in full or in part, or provision of a Delivery Receipt of G&S signed by the Future Property Group, if any G&S Delivered do not comply with the requirements of the Order, they may be rejected by the Future Property Group (‘Rejected G&S’) and the Supplier must at the Supplier’s expense, at the time and to the extent specified by the Future Property Group, repair, remove and replace, or provide reimbursement for, the Rejected G&S. The Future Property Group may provide the Supplier with notice of its rejection of the G&S until the G&S are Accepted.

6.9 Any Rejected G&S returned to the Supplier as defective or otherwise outside the requirements of the Order for repair, replacement or credit are returned at the risk of the Supplier and all handling, insurance and transportation costs, including the Future Property Group’s costs of inspection, from the initial delivery of the G&S and the subsequent return of Rejected G&S shall be borne by the Supplier and the Supplier shall pay to the Future Property Group any such costs and refund any payment or part-payment made by the Future Property Group in respect of the Rejected Work.

6.10 The Supplier is obliged to ensure that delivery receipts required to be completed by the Future Property Group shall be completed and signed by the Future Property Group and the Supplier.

6.11 Any G&S provided under or in connection with this Contract shall be provided using the highest standard of care and skill and with proper and tradesman-like workmanship, and in accordance with Best Industry Practice.

6.12 Except where included in this Order or where the Future Property Group otherwise notifies the Supplier in writing, the Supplier shall, at its own expense, supply everything necessary or which may be reasonably inferred or expected from the Order or this Contract for the proper performance of the G&S under or in connection with this Contract.

6.13 Once the Future Property Group is satisfied that Acceptance of the G&S has occurred, the Future Property Group may provide to the Supplier written notice confirming Acceptance having occurred.

7. PAYMENT

7.1 Payment Claims

(a) Subject to the due and punctual performance by the Supplier of all of the Supplier’s obligations under this Contract, and the rights of the Future Property Group to set off under this Contract, the Future Property Group will pay the Supplier the Contract Sum in accordance with this Contract. The parties acknowledge and agree that the Future Property Group is not obligated to pay any deposits in connection with this Contract.

(b) The Supplier must submit payment claims under this Contract on the Date for Submission of Payment Claims, but must only submit one payment claim per month (“Payment Claims”). The payment claim must be sent to the Future Property Group through its nominated method, and:

(i) be supported by evidence of the amount due to the Supplier and such information as the Future Property Group may reasonably require;

(ii) set out the G&S delivered since the last Payment Claim;

(iii) set out the amounts due from the Future Property Group to the Supplier and the Supplier to the Future Property Group;

(iv) set out the amounts previously paid by the Future Property Group to the Supplier in respect of the G&S;

(v) set out the amounts previously claimed under this Contract;

(vi) set out the retention moneys to be deducted pursuant to this Contract (if any);

(vii) set out the amount which the Future Property Group asserts is payable to the Future Property Group in accordance with this Contract;

(viii) if required by the Future Property Group, be accompanied by a statutory declaration prepared by an officer of the Supplier approved by the Future Property Group stating that:

A. all moneys included in previous progress payments in respect of G&S, work carried out or materials supplied by subcontractors or suppliers to the Supplier or employees of the Supplier have been paid by the Supplier to those subcontractors, suppliers and employees; and

B. any other monies which are payable by the Supplier to its employees or subcontractors which have become payable as at the date of the statutory declaration have been paid where those monies relate to time spent on the G&S by employees of the Supplier; and

(ix) be accompanied by any compliance certificates required to be issued in respect of the G&S the subject of the payment claim;

(x) be accompanied by all relevant documentation evidencing (to the satisfaction of the Future Property Group) the Supplier’s full compliance with any industrial requirements or agreements.

7.2 Payment Schedules

(a) Within 10 business days of a Payment Claim, the Future Property Group will issue to the Supplier a payment schedule (with reasons) certifying the amount which the Future Property Group assesses to be payable to the Supplier or payable by the Supplier to the Future Property Group (“Payment Schedule”) taking account of:

(i) the value of G&S delivered by the Supplier to the date of the claim as assessed by the Future Property Group, including any variations approved in writing;

(ii) an amount determined by the Future Property Group to be deducted to cover the cost estimated by the Future Property Group to rectify any defective G&S;

(iii) the value of any Rejected Goods for which the Supplier has claimed and is not entitled to payment for;

(iv) amounts to be deducted to cover retention moneys (if applicable);

(v) if the Supplier has failed to deliver the G&S by the time specified in the Order, an amount to be deducted for Liquidated Damages; or

(vi) amounts the Future Property Group may otherwise deduct under this Contract.

(b) The Future Property Group will pay the amount set out in the Payment Schedule in accordance with clause 7.9. Any payment made by the Future Property Group is a payment on account only and will not be regarded as evidence or admission that:

(i) the Future Property Group has accepted the G&S; or

(ii) the G&S have been delivered in accordance with this Contract; or

(iii) the Supplier has satisfactorily delivered the G&S.

(c) If a Payment Schedule sets out an amount owing by the Supplier to the Future Property Group, the Supplier shall pay such amount within 14 days of the date of the Payment Schedule. The Supplier indemnifies the Future Property Group in respect of any costs it incurs in recovering such payment including its debt collection and legal costs on a full indemnity basis.

7.3 Conditions precedent to payment

(a) The Supplier may not make a Payment Claim under clause 7.1(b) or the final Payment Claim under clause 7.4 and the Future Property Group is not obliged to make a payment unless the Supplier has served on the Future Property Group:

(i) evidence satisfactory to the Future Property Group that it has fully complied with the requirements of clause 18;

(ii) a statutory declaration that the Supplier has made payment to all of its employees and its subcontractors engaged in the performance of the delivery of the G&S in respect of invoices rendered up until and forming part of the payment claim; and

(iii) letters or certificates of compliance as required by the Future Property Group or the Building Surveyor from time to time for the purpose of issuing a Certificate of Occupancy in respect of the works under the Head Contract.

7.4 Final payment claim

(a) Within 28 days after the expiry of the last Defects Liability Period the Supplier must serve on the Future Property Group a final payment claim of all of the Supplier’s Claims against the Future Property Group under or in connection with the Contract (“Final Payment Claim”).

(b) The Supplier releases the Future Property Group against any Claim by the Supplier in connection with the G&S or the Contract which is not included in the final payment claim, other than a claim for release of retention.

7.5 Final Certificate and Deed of Release

(a) Not later than 10 Business Days after the final payment claim is served, the Future Property Group must provide to the Supplier a final payment schedule which:

(i) is endorsed ‘Final Certificate’;

(ii) identifies the final payment claim to which it relates;

(iii) states the amount, if any, that the Future Property Group proposes to pay (“Final Scheduled Amount”);

(iv) shows any amount that is payable by the Supplier to the Future Property Group; and

(v) if the final scheduled amount is less than the final payment claim, states why the final scheduled amount is less, and if it is less because the Future Property Group is withholding payment for any reason, the Future Property Group’s reasons for withholding payment (“Final Certificate”).

(b) If the Supplier fails to serve a final payment claim, the Future Property Group may provide notice to the Supplier of its assessment of the value of the G&S carried out under the Contract and make the final payment to the Supplier, and no Claim may then be made by the Supplier against the Future Property Group, other than a claim for release of retention, and the Future Property Group has no liability whatever to the Supplier in connection with the G&S or in connection with the Contract.

(c) Within 14 days after the issue of a Final Certificate, the Supplier must provide to the Future Property Group a signed Deed of Release in the form approved by the Future Property Group.

(d) Subject to the Supplier having complied with the requirements of this clause 7.5, the Future Property Group must pay to the Supplier the final scheduled amount within the equivalent periods stated in clause 7.9.

(e) The Supplier must within 14 days after the issue of the Final Certificate, pay to the Future Property Group any amount under clause 7.5(a)(v).

7.6 Set-off and Indemnities

(a) The Future Property Group may deduct from any moneys due and payable to the Supplier, any moneys due and payable, or claimed by the Future Property Group to be due and payable, from the Supplier to the Future Property Group pursuant to this Contract or any other agreement between the Future Property Group and the Supplier, including but not limited to for breach of any warranty, under any indemnity (whether or not the Future Property Group has made any payment or incurred any liability) given by the Supplier in favour of the Future Property Group, all costs and expenses including legal costs under any adjudication application under SOPA or otherwise at law, and if those moneys are insufficient then the Future Property Group will be entitled to deduct from the retention moneys or the security (if any) or recover those amounts separately.

(b) Where the Future Property Group applies sub-clause 7.6(a), the Future Property Group is entitled to apply, at its sole election and discretion, up to an additional 20% of the costs and expenses incurred in order to recover a portion of the Future Property Group’s internal costs expended in the administration, supervision and management as the case may be of the works the subject of this subclause.

(c) The Supplier indemnifies the Future Property Group against and holds the Future Property Group harmless from, any loss, liability, cost, expense, claim or damage made against, suffered or incurred by the Future Property Group arising directly or indirectly from any breach by the Supplier of this Contract or any act or omission (including any negligence, unlawful conduct or wilful misconduct) by the Supplier under, relating to or in connection with this Contract.

(d) If the Supplier does not deliver the G&S by the date specified in the Order, the Supplier indemnifies the Future Property Group against any liability or loss suffered or incurred by the Future Property Group:

(i) under or in connection with the Head Contract; or

(ii) as a consequence of seeking to mitigate its liability or loss or potential liability or loss under or in connection with the Head Contract (including acceleration costs), to the extent that such liability or losses arises out of or in connection with an act of neglect or default of the Supplier.

(e) It is not necessary for the Future Property Group to incur expense or make a payment before enforcing any indemnity conferred by this Contract.

(f) Each indemnity in this Contract is a continuing obligation, separate and independent from the other obligations of the Supplier and survives the termination or expiration of this Contract.

7.7 Security of Payment Legislation

For the purposes of section 42 of SOPA, in the event that the Supplier makes an adjudication application under SOPA, the Supplier must make such application to one of the following Authorised Nominating Authorities (as that term is defined under SOPA): Resolution Institute.

7.8 Date for Submission of Christmas Payment Claim

Payment claims for the month of December are, for the purposes of claims for payment under the Contract and SOPA, to be made on 7 December and the date for payment is, for that payment claim only, to be on or before 31 January the next year.

7.9 GST and Invoicing

(a) The Contract Sum is exclusive of GST which will be payable in respect of a taxable supply made under the GST Law.

(b) Upon receipt of a payment schedule or the Final Certificate (as the case may be), the Supplier shall issue within two Business Days a tax invoice in compliance with the GST Law for the amount approved in the relevant payment schedule or Final Certificate. The provision of the tax invoice is a condition precedent to the Supplier’s entitlement to payment under this Contract.

(c) The Future Property Group will pay the amount in the tax invoice issued under clause 7.9 within the time specified for payment in Annexure A.

7.10 Reporting to credit agencies

The Supplier acknowledges and agrees that it shall have no entitlement to report the Future Property Group to a credit reporting agency or similar group which maintains a database of creditors (such as Creditor Watch) without first having obtained an order in a Court in respect of the debt alleged to be due and that if the Supplier breaches this clause 7.10, the Future Property Group shall, without prejudice to any other rights it may have, have the right to do any or all of the following:

(a) seek the removal of any submission by seeking an order in a Court of competent jurisdiction and the Supplier shall be barred from raising a defence in respect of such application to the Court;

(b) commencing proceedings against the Supplier for the lodgement and the Supplier shall be barred from raising a defence in respect of such application to the Court, and

the Supplier acknowledges and agrees that damages are an insufficient remedy to a lodgement with a credit agency without compliance with this clause.

7.11 Financial Certificates

Within 48 hours of the provision of a request from the Future Property Group, the Supplier shall provide a letter confirming the current solvency of the Supplier from its accountant who shall be a Certified Public Accountant.

8. GOODS AND SERVICES TAX

In this clause:

(a) The Future Property Group will not be obliged to pay any amount in respect of GST to the Supplier unless a tax invoice that complies with the GST Law has been issued in respect of that GST at the same time at which it receives the invoice to that which the taxable supply relates. Each party agrees to do all things, including providing invoices or other documentation that may be necessary or desirable to:

(i) Enable or assist the other party to claim input tax credits to the maximum extent possible; or

(ii) Claim all input tax credits that may be available to itself in order to reduce the amount recoverable from the other party under the Contract.

(b) If the total final amount of GST payable under the Order differs from the amount paid to the Supplier in respect of GST, whether because of an adjustment event as defined in the GST Law, an error in calculation or for any other reason, the Supplier shall return the difference to the Future Property Group or the Future Property Group shall pay an additional amount to the Supplier, as applicable, to ensure that the total final amount of GST payable to the Supplier under this Order is equal to the total GST liability in respect of this Order.

9. CANCELLATION OF ORDERS

9.1 The Future Property Group may cancel the Order in whole or in part, by notice in writing and without prejudice to any other right it may have, upon or at any time after the happening of any of the following events:

(a) Default by the Supplier in the performance or observance of any of the provisions of this Contract, or if any other secured party seizes or becomes entitled to seize the G&S (whether under the PPSA or otherwise); or

(b) The Supplier fails to deliver the G&S within the time specified or otherwise in accordance with the Order or any delivery schedule as agreed upon by the parties; or

(c) The Supplier, if an individual, has a bankruptcy petition presented against him, or commits an act of bankruptcy, or makes a proposal for a scheme of arrangement or a composition, or has a deed of assignment or deed of arrangement made, or accepts a composition, or is required to present a debtor’s petition, or has a sequestration order made under Part X of the Bankruptcy Act 1966 (Cth), or enters into a personal insolvency agreement, or calls a meeting for the consideration of a personal insolvency agreement as defined by the Bankruptcy Act 1966 (Cth) or dies; or

(d) The Supplier, if a corporation, has a controller or administrator or liquidator appointed or enters into a deed of company arrangement with its creditors or has a receiver or receiver and manager appointed to any of its property or has a mortgagee take possession of any of its property or has a winding up order made against it.

9.2 The Supplier shall not be entitled to claim any compensation in respect of or arising from any such cancellation.

9.3 The Supplier will refund in full any deposit paid, or any money paid in advance to the Supplier, in respect of any Order, by the Future Property Group for any cancelled Order within seven days of the cancellation of any Order.

10. VARIATIONS

10.1 The Future Property Group through the Project Coordinator may at any time direct the Supplier to amend, increase, decrease or change the quality, character or extent of the G&S or to otherwise supply additional or less G&S (“Variation Order”).

10.2 Within five Business Days of receiving a Variation Order the Supplier must deliver to the Future Property Group a detailed quotation setting out any difference in the cost associated with the Supplier’s performance of the variation and any effect the variation will have on the Date for Delivery including evidence as reasonably required by the Future Property Group.

10.3 The Supplier must not undertake any works or supply any G&S, urgent or otherwise, the subject of a Variation Order unless it has first received a written direction to proceed from the Future Property Group through the Project Coordinator.

10.4 The valuation of the G&S the subject of a Variation Order are to be valued according to (in order of precedence):

(a) prior agreement;

(b) a schedule of rates or bill of quantities (if applicable);

11. TERMINATION

The Future Property Group may terminate this Contract on 7 days’ written notice and the Supplier will be paid the value of all G&S Delivered and all G&S supplied or carried out to the date of termination and the cost of materials reasonably ordered by the Supplier for the G&S, and the Supplier shall take all reasonable steps to mitigate the loss to the Future Property Group.

12. WORKING AT DELIVERY ADDRESS OR AT THE FUTURE PROPERTY GROUP’S PREMISES

If any work necessary for fulfilling the Order is to be performed on or at the Future Property Group’s Premises, Delivery Address, or at a place under the Future Property Group’s control, then the Supplier shall 7 days prior to starting work, provide evidence of adequate and current Public Liability and Workers Compensation Insurance cover, and any and all other Insurances as reasonably required by the Future Property Group.

13. SUPPLY OF PARTS BY THE CONTRACTOR

If the Future Property Group provides to the Supplier any parts or components to be incorporated by the Supplier in the G&S, the parts or components supplied shall be at the risk of the Supplier, who shall pay the actual cost incurred by the Future Property Group in replacement or repair of the supplied parts or components, where such loss or damage arose while the parts or components were in possession of the Supplier, until those G&S incorporating those parts or components are accepted by the Future Property Group.

14. QUALITY MANAGEMENT SYSTEM

The Supplier shall at all material times operate and maintain an effective quality management system appropriate to the type of G&S offered and / or in accordance with the specifications within the Order, and if requested the Supplier must provide to the Future Property Group upon Delivery of the G&S or performance of the G&S, a copy of the quality assurance documentation relating to those G&S.

15. OH&S AND ENVIRONMENTAL REQUIREMENTS

15.1 The G&S Supplied must comply with all applicable health and safety legislation, whether State or Commonwealth, and meet or exceed the appropriate Australian and / or International Standard. The Supplier shall operate and maintain at all material times an effective Occupational Health and Safety (OHS) management system appropriate to the type of G&S offered and / or in accordance with the specifications within the Order.

15.2 The Supplier shall be responsible for supplying all Personal Protective Equipment (PPE) to the Supplier's employees that is necessary and appropriate to the G&S to be carried out.

15.3 The Supplier acknowledges and agrees by its acceptance of this Contract that it has satisfied itself as to the safety of the Work to be carried out under this Contract.

15.4 Where a Safe Work Method Statement ('SWMS') is required by the Occupational Health & Safety Act 2004 (VIC), an Occupational Health and Safety policy, or as directed by the Future Property Group, the Supplier shall comply with the Future Property Group’s SWMS in its performance of the G&S or optionally it shall supply and comply with its own SWMS, which must be consistent and coordinated with the Future Property Group’s SWMS.

15.5 Where the Supplier provides its own SWMS, the Supplier acknowledges and agrees that the Future Property Group is relying on the Supplier's skill, expertise and judgement in the appropriateness of, and compliance with, the Supplier's SWMS.

15.6 The G&S Delivered must comply with all applicable environmental legislation, whether State or Commonwealth, and meet or exceed the appropriate Australian and / or International Standard.

16. WARRANTIES

16.1 The Supplier acknowledges and agrees by its acceptance of the Order that it is aware that the Future Property Group is relying on the Supplier’s skill, expertise and judgement in the Delivery of the G&S.

16.2 At the request of the Future Property Group, the Supplier must assign the benefit of any warranty or guarantee that the Supplier has received from its contractors whether under contract or by implication or operation of law in whatever form required by the Future Property Group from time-to-time. This warranty shall endure for the benefit of the Future Property Group, its successors and its assignees.

16.3 The Supplier, by its acceptance of this Contract, warrants that the G&S supplied are of acceptable quality and free from Defects in material and workmanship, conform with the specifications provided by the Future Property Group, and are fit for the purpose for which the Future Property Group or the Future Property Group’s customers intend to use the G&S, or for the purpose for which the G&S would normally be used, including all such purposes made known to the Supplier expressly or by implication for the period of 10 years from the date of Delivery to the Future Property Group.

17. INTELLECTUAL PROPERTY

17.1 All drawings, blueprints, sketches, specifications, tooling and copies of any kind whatsoever supplied by the Future Property Group to the Supplier remain the property of the Future Property Group and shall not be copied or used by the Supplier for any purpose other than for fulfilling its obligations under this Contract. Unless otherwise agreed, all such drawings, blueprints, sketches, specifications, tooling and copies thereof must be returned to the Future Property Group with the Delivery of the G&S.

17.2 All patent, design rights, trade marks, copyright, original works and any other Intellectual Property in any design, specification, process, method of working or other information relating to the G&S provided by the Supplier to the Future Property Group associated with the supply of the G&S, shall remain the property of the Future Property Group.

17.3 The Supplier agrees that it will not now or at any time in the future reproduce for or sell to any person or corporation other than the Future Property Group, whether for profit or otherwise, G&S or any part of the G&S in progress manufactured by the Supplier to design and specifications provided by the Future Property Group or its related entities. The Supplier shall not divulge to any other person or corporation any information, specifications, drawings or other Intellectual Property received from or provided by the Future Property Group or its related entities without the prior written consent of the Future Property Group.

18. INSURANCE AND INDEMNITY

18.1 The Supplier shall take out and maintain workers compensation insurance, public liability insurance and product liability insurance. Evidence of currency of insurances shall be provided to the Future Property Group on request.

18.2 If the Supplier is entitled to make a claim under any insurance policy effected by the Future Property Group or the Future Property Group’s customer, the Supplier shall be liable for any excesses in connection with the claim.

18.3 By its acceptance of the Order, the Supplier releases, holds harmless, indemnifies and keeps indemnified the Future Property Group, its successors, administrators and assignees, from and against all Claims (whether direct, indirect or consequential):

(a) For loss or damage to persons or property, or for death or injury caused by or arising out of or in connection with any act, matter, or thing done, omitted or permitted to be done by the Supplier; or

(b) For loss of profit, opportunity, use and any and all other economic or consequential loss, including and without limitation, any loss by reason of a breach of a term or condition of the Order, or the negligence or any other act, matter or thing done, omitted or permitted to be done by the Supplier.

(c) For costs including legal fees on a full indemnity basis, loss, damages, liability, demands, suits at law or in equity for or in respect of the actual or alleged infringement of any patent, trade mark or other intellectual property right to or in respect of materials used by the Supplier in the execution of this Contract, or in respect of any Claim or the enforcement of any right or claim in respect of the G&S supplied under or associated with the Contract by any third parties.

19. DISPUTE RESOLUTION

19.1 Notwithstanding the existence of a dispute, the Supplier shall continue to perform its obligations under the Contract and comply with all directions of the Future Property Group.

19.2 A party claiming that a dispute has arisen under this Deed shall give written notice to the other party providing particulars of the dispute and nominating a person with authority to settle the dispute and the other party shall within three Business Days give written notice to the first party of its representative with authority to settle the dispute.

19.3 The authorised persons shall within five Business Days of giving the notice of the dispute meet at least once, in good faith and without prejudice, and seek to resolve the dispute.

19.4 If the dispute is not resolved within 10 Business Days of giving the notice of dispute, a party may refer the dispute to commercial arbitration for resolution, with the arbitrator being a practising barrister of not less than 10 years’ but not more than 15 years’ experience nominated by the President of the Bar Association of the State or Territory in which the Delivery Address is situated. The arbitrator shall conduct the arbitration and deliver his award within 10 Business Days of his appointment, with a hearing of one day and the rules of evidence shall not apply. The parties may be represented only by practicing solicitors.

19.5 If any arbitration award is in favour of the Future Property Group, the Client shall pay the Future Property Group’s costs in respect of the arbitration on a solicitor / own client basis. The arbitrator shall tax costs at the conclusion of the arbitration.

19.6 Nothing herein shall prejudice the right of either party to seek injunctive or urgent declaratory relief in respect of any matter arising under the Contract.

20. TIME BAR FOR CLAIMS

20.1 Unless this Contract expressly states otherwise, the Future Property Group shall not be liable for any Claim by the Supplier arising out of or associated with the Contract, unless the Supplier has given notice to the Future Property Group in writing including to the maximum extent practicable, particulars of the event or circumstances on which the claim is or will be based, the provision of the Contract or other basis for the claim or proposed claim, and the quantum or likely quantum of the claim within seven days of the claim arising.

20.2 Nothing in clause 20.1 limits the operation or effects of any other provision for notice, time-bar, condition precedent or limitation or exclusion clause in the Contract.

20.3 Any notice or advice in relation to this Contract to a party shall be sufficiently served by handing the same to the other party, its employee or agent or by email to the email address shown herein and shall be deemed to have been received by the other party on the date the notice was handed to it, or on the date of transmission by email (according to the method of service).

20.4 The parties agree that this Contract and any agreement in relation to this Contract may be agreed and accepted by email.

21. STATE OR TERRITORY SPECIFIC SECURITY OF PAYMENT PROVISIONS

21.1 New South Wales provisions

(a) A payment claim for the purposes of the SOPA is a valid claim for payment for the purposes of clause 7.

(b) A payment schedule issued by or on behalf of the Future Property Group pursuant to clause 7 is, for the purposes of the SOPA, a "payment schedule" (as defined in the SOPA).

(c) The amount (if any) set out in a payment schedule under clause 7 is, for the purposes of the SOPA, the amount of the "progress payment" (as defined in the SOPA) calculated in accordance with this Agreement under which the Supplier is entitled to be paid.

(d) For the purposes of clause 7, Business Day means a day that is not:

(i) a Saturday, Sunday or public holiday; or

(ii) 27, 28, 29, 30 or 31 December.

21.2 Victorian provisions

(a) A payment claim for the purposes of the SOPA is a valid claim for payment for the purposes of clause 7.

(b) The parties agree that the date on which the Supplier serves, or is deemed to have served, a payment claim in accordance with clause 7 is, for the purposes of the SOPA, the "reference date" (as defined in the SOPA).

(c) A payment schedule issued by or on behalf of the Future Property Group pursuant to clause 7 is, for the purposes of the SOPA, a "payment schedule" (as defined in the SOPA).

(d) The amount (if any) set out in a payment schedule under clause 7 is, for the purposes of the SOPA, the amount of the "progress payment" (as defined in the SOPA) calculated in accordance with this Agreement under which the Supplier is entitled to be paid.

(e) For the purposes of clause 7, Business Day means a day that is not:

(i) a Saturday or Sunday; or

(ii) a day that is wholly or partly observed as a public holiday throughout Victoria.

21.3 Queensland provisions

(a) A payment claim for the purposes of the SOPA is a valid claim for payment for the purposes of clause 7.

(c) A payment schedule issued by or on behalf of the Future Property Group pursuant to clause 7 is, for the purposes of the SOPA, a "payment schedule" (as defined in the SOPA).

(e) For the purposes of clause 7, Business Day means a day that is not:

(i) a Saturday, Sunday; or

(ii) public holiday, special holiday or bank holiday in the place in which any relevant act is to be or may be done; or

(iii) 22, 23, 24, 27, 28, 29, 30 or 31 December; or

(iv) 2, 3, 4, 5, 6, 7, 8, 9 or 10 January.

21.4 South Australian provisions

(a) A payment claim for the purposes of the SOPA is a valid claim for payment for the purposes of clause 7.

(c) A payment schedule issued by or on behalf of the Future Property Group pursuant to clause 7 is, for the purposes of the SOPA, a "payment schedule" (as defined in the SOPA).

(e) For the purposes of clause 7, Business Day means a day that is not:

(i) a Saturday, Sunday or public holiday; or

(ii) 27, 28, 29, 30 or 31 December; or

(iii) any other day on which there is a State-wide shut-down of the operations of the building and construction industry.

21.5 Australian Capital Territory provisions

(a) A payment claim for the purposes of the SOPA is a valid claim for payment for the purposes of clause 7.

(c) A payment schedule issued by or on behalf of the Future Property Group pursuant to clause 7 is, for the purposes of the SOPA, a "payment schedule" (as defined in the SOPA).

(e) For the purposes of clause 7, Business Day means a day that is not:

(i) a Saturday, Sunday or public holiday; or

(ii) 27, 28, 29, 30 or 31 December.

21.6 Northern Territory provisions

(a) A claim for payment for the purposes of the SOPA is a payment claim for the purposes of clause 7.

(b) The amount (if any) set out in a payment schedule under clause 7 is, for the purposes of the SOPA, a response to a claim for payment (as used in the SOPA) calculated in accordance with this Agreement under which the Supplier is entitled to be paid.

21.7 Western Australia provisions

(a) A claim for payment for the purposes of the SOPA is a payment claim for the purposes of clause 7.

(i) a Saturday, Sunday or public holiday; or

(ii) 25 December to 7 January (inclusive).

21.8 Tasmanian provisions

(a) A payment claim for the purposes of the SOPA is a payment claim for the purposes of clause 7.

(c) A payment schedule issued by or on behalf of the Future Property Group pursuant to clause 7 is, for the purposes of the SOPA, a "payment schedule" (as defined in the SOPA).

(e) For the purposes of clause 7, Business Day means a day that is not:

(i) a Saturday, Sunday or public holiday; or

(ii) 27, 28, 29, 30 or 31 December; or

(iii) government holidays in the place in which any relevant act is to be done or may be done.

22. GENERAL

22.1 The law governing the Contract and its interpretation is the law of the State of the Future Property Group’s address as identified in the Supply Agreement Schedule.

22.2 The Contract constitutes the entire agreement between the parties with regard to the G&S and supersedes all prior or contemporaneous, oral or written contracts, agreements or understandings of the parties relating to the G&S. The Supplier acknowledges that in entering into the Contract, it has not relied upon any representation or undertaking given by or on behalf of the Future Property Group which is not expressly set out in the Contract.

22.3 Any modification or variation of this Order or this Contract will not be valid unless in writing and agreed by the parties.

22.4 If the Supplier finds any ambiguity, discrepancy or inconsistency between this Contract and other documents forming part of the Contract, it will give immediate written notice thereof to the Future Property Group. The Future Property Group shall direct the interpretation to be followed and any necessary correction will not vitiate this Contract.

22.5 Any provision in this Contract which is illegal, void or unenforceable will be ineffective to the extent only of such illegality, voidness or unenforceability and may be severed and such illegality, voidness or unenforceability will not invalidate any other provision of this Contract.

22.6 No rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it.