Maintenance Services Agreement

1 Definitions

In these terms and conditions:

Agreement means an agreement between Cleanaway and the Supplier for the supply of goods and/or Services constituted by a Maintenance Service Agreement, these Conditions, any Purchase Orders which are issued to the Supplier, and any written variations in accordance with clause 22 of these Conditions.

Agreement Specifics means the items set out in the Maintenance Services Agreement under the heading Agreement Specifics.

Business Day means any day other than a Saturday, Sunday or a public holiday in the Australian state or territory in which the Services will be performed.

Claim includes any action, application, arbitration, cause of action, complaint, cost, expense, debt due, demand, determination, inquiry, judgment and verdict.

Cleanaway means Cleanaway Pty Ltd or any related body corporate of Cleanaway Pty Ltd (within the meaning of section 50 of the Corporations Act 2001 (Cth).

Commencement Date means the date set out in the Agreement Specifics

Conditions means the terms and conditions outlined in this document, which form part of the Agreement.

Confidential Information means all information disclosed by Cleanaway to the Supplier, whether before or after the parties’ entrance into an Agreement, in whatever form and however recorded or stored, relating to Cleanaway or the Services.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended or any replacement or other relevant legislation and regulations.

Heavy Vehicle National Law means the uniform Australian laws of that name which apply throughout Australia’s various states and territories (excluding Western Australia) and which are administered by the National Heavy Vehicle Regulator, including:

ACT – Heavy Vehicle National Law (ACT) Act 2013 & Heavy Vehicle National Law (ACT) (Transitional Provisions) Regulation 2014;
NSW – Heavy Vehicle (Adoption of National Law) Act 2013 (NSW) & Heavy Vehicle (Adoption of National Law) Regulation 2013;
QLD – Heavy Vehicle National Law Act 2012 (QLD) & Heavy Vehicle National Law Regulation 2014;
SA – Heavy Vehicle National Law (South Australia) Act 2013, Heavy Vehicle National Law (South Australia) (Expiation Fees) Regulations 2013 & Heavy Vehicle National Law (South Australia) (Fees) Regulation 2013;
TAS – Heavy Vehicle National Law (Tasmania) Act 2013 & Heavy Vehicle National Law (Tasmania) Regulations 2014; and
VIC – Heavy Vehicle National Law Application Act 2013 (Vic) & Heavy Vehicle National Law Application (Infringements) Regulations 2013, as amended or any replacement or other relevant legislation and regulations.

Maintenance Services Agreement means the document of that name which is entered into between Cleanaway and the Supplier with respect to the Supplier’s performance of Services, and which will be governed by the terms and conditions outlined in these Conditions.

Payment Terms means the number of days set out in the Agreement Specifics.

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

Price means the price payable by Cleanaway to the Supplier in exchange for the Supplier’s performance of the Services, as shown in the Agreement Specifics or the relevant Purchase Order.

Purchase Order means Cleanaway’s order accompanying these Conditions or otherwise placed or communicated with the Supplier and includes these Conditions.

Intellectual Property includes copyright, designs, patents, know-how and any other proprietary, licence or personal rights arising from intellectual activity in the business, industrial, scientific or artistic fields.

Representative of a party means that party’s director, or authorised officer, employee, agent or sub-contractor.

Security Agreement has the meaning given to it in the PPSA.

Security Interest has the meaning given to it in the PPSA.

Services means the services described in Schedule 1 (Scope of Works) of the Maintenance Service Agreement.

Supplier means the entity defined as the Supplier in the Maintenance Services Agreement.

Term means the period specified in the Agreement Specifics; commencing on the Commencement Date and continuing for the duration of the Term unless extended or terminated earlier pursuant to these Conditions.

Working Hours means the time periods set out in the Agreement Specifics.

2 Term

The Agreement will commence on the Commencement Date and will continue for the Term unless terminated earlier pursuant to these Conditions.

3 Status of these Conditions

These Conditions apply to all Purchase Orders, and:

(a) to the extent the Supplier’s terms and conditions are supplied with the goods and/or Services (including as printed on consignment notes or other documents), those terms and conditions will be of no legal effect; and

(b) any terms and conditions implied by statue or otherwise are excluded to the extent it is lawful to do so

4 Appointment

(a) Cleanaway appoints the Supplier to perform the Services.

(b) Despite clause 4(a) of these Conditions, Cleanaway does not guarantee that it will acquire any minimum volume of the Services from the Supplier.

(c) Agreement does not prevent Cleanaway from entering into arrangements or agreements with third parties for the provision of Services or similar services.

5 Ordering of Services

(a) Cleanaway will engage the Supplier via individual Purchase Orders, each of which will be issued in accordance with the Agreement, which must:

(i) specify the description of the Services to be delivered by the Supplier;
(ii) specify the applicable price for the Services (including any taxes that may be applicable);
(iii) specify the particular delivery date(s) and locations; and
(iv) include additional specifications for the Service under that Purchase Order.

(b) Each Purchase Order is pursuant to the terms of the Agreement.

(i) the Supplier’s written acceptance being received by Cleanaway, or
(ii) two (2) days after the Purchase Order is sent by Cleanaway to the Supplier (unless the Supplier rejects the Purchase Order within that time by written notice to Cleanaway).

(d) Unless the Supplier receives a Purchase Order, Cleanaway will not be responsible for payment of the Services performed. The Supplier indemnifies Cleanaway for any Services which have been performed without a valid Purchase Order.

6 Supplier’s obligations

(a) The Supplier must:

(i) complete the Services in a competent, professional, responsible manner and in accordance with the any stated service levels;
(ii) exercise the standard of skill and care expected of a contractor experienced in completing the Services;
(iii) report to Cleanaway about the completion of the Services at the times and in the manner Cleanaway may reasonably require; and
(iv) comply with any laws that apply to the completion of the Services (including, amongst others, the Heavy Vehicle National Law), and obtain the necessary licences, registrations, or permits required for the completion of the Services.

(b) The Supplier must ensure that its present and former employees, contractors and agents comply with all of the Supplier’s obligations under the Agreement, as if they were parties to the Agreement.

7 Price

Subject to clause 22 of these Conditions, the Price specified in a Purchase Order will be fixed and is not subject to increase. The Price includes all costs, taxes, levies and charges.

8 Payment

(a) In consideration for completing the Services, Cleanaway must pay the Supplier the Price.

(b) In accordance with the timetable set out in the Agreement Specifics, the Supplier may submit invoices for the Fees.

(i) specify the amount owing to the Supplier;
(ii) specify the method of calculation of and justification for the amount owing;
(iii) provide a detailed description of Services performed;
(iv) reference a Purchase Order number;
(v) specify the amount of any applicable GST; and
(vi) be a tax Invoice.

(d) Cleanaway must pay invoices that meet the requirements of this clause 8 within the period outlined in the Payment Terms from the last day of the month of invoice receipt.

(e) If Cleanaway disputes an invoice of the Supplier, it will pay the undisputed portion of the invoice and dispute the balance. That dispute will be resolved in accordance with clause 20 of these Conditions. Payment by Cleanaway of an invoice (in whole or part) will not preclude Cleanaway from disputing that invoice at a later stage.

(f) Cleanaway will not be liable to pay any amount set out in invoices which do not comply with clause 8(c) of these Conditions.

9 GST

(a) Unless GST is expressly included, the consideration to be paid or provided under any other clause of the Agreement for any supply made under or in connection with the Agreement does not include GST.

(b) To the extent that any supply made under or in connection with the Agreement is a taxable supply, the GST exclusive consideration otherwise to be paid or provided for that taxable supply is increased by the amount of any GST payable in respect of that taxable supply and that amount must be paid at the same time and in the same manner as the GST exclusive consideration is otherwise to be paid or provided. A party’s right to payment under this clause 9 is subject to a valid Tax Invoice being delivered to the recipient of the taxable supply.

(i) GST means GST as defined in the GST Act;
(ii) words or expressions used in this clause 9 which have a particular meaning in the GST law (as defined in the GST Act, and also including any applicable legislative determinations and Australian Taxation Office public rulings) have the same meaning, unless the context otherwise requires.

10 Title and risk

(a) Property in any goods supplied as part of the Services passes to Cleanaway on delivery of those good by the Supplier to Cleanaway.

(b) The Supplier bears all risk of loss and damage to the goods, until final acceptance by Cleanaway in accordance with clause 10(c) of these Conditions.

(c) Acceptance of the goods used in the Services by Cleanaway will occur on the date upon which Cleanaway notifies the Supplier in writing of its acceptance.

11 Defective performance

(a) Without limiting any other part of the Agreement, if Cleanaway reasonably forms the view that the standard or quality of the Services is unacceptable the Supplier must, promptly on written notice from Cleanaway:

(i) rectify the standard or quality of the Services; or
(ii) at the discretion of Cleanaway, if the standard or quality of the Services has not been rectified promptly by the Supplier or is incapable of being rectified, reimburse Cleanaway for the cost of rectifying the standard and quality of the Services, or for any damage or loss associated with the provision of those Services.

(b) The Supplier acknowledges that Cleanaway may set off any amount owing to it under clause 11(a)(ii) of these Conditions, against any Fees or other amount owed by it to the Supplier under the Agreement.

(i) breach of the Agreement; or
(ii) negligent or wilful act or omission, by the Supplier or any present or former employee, contractor and agent of the Supplier.

12 Warranty

The Supplier warrants that the Services:

(a) are provided with due care and skill, with the same or higher level of care and skill as would reasonably be expected of a person qualified and experienced in the supply of the same or similar Services, taking all necessary care to avoid loss or damage;

(b) match the description referred to in the Purchase Order and meet the specifications;

(c) comply with any representations, descriptions, samples or other specifications, including quality, function, performance or design; and

(d) comply with all legislation, regulations and other governmental requirements in Australia relating to the Services.

(e) the Supplier warrants all Goods and Services for a period of 6 months from the date of the completion of the Services. Without limiting any other rights Cleanaway has in the Agreement, in the event of a warranty claim, the Supplier will indemnify Cleanaway for one of the following (at the election of Cleanaway):

(i) replacement of the Goods, or supply of goods equivalent to the Goods, including all related Services;
(ii) repair of the Goods and related Services;
(iii) payment of the cost of replacing the Goods and related Services; and,
(iv) payment of the cost of having the Goods repaired.

13 Intellectual Property

(a) Cleanaway exclusively owns and is entitled to the exclusive benefit of Cleanaway’s Intellectual Property.

(b) Cleanaway exclusively owns and is entitled to the benefit of all Intellectual Property developed by the Supplier:

(i) using any of Cleanaway’s premises, resources or facilities;
(ii) in the course of, as a consequence of or in relation to its completion of the Services;
(iii) directly or indirectly as a result of the Supplier’s or anybody else’s access to Confidential Information or Cleanaway’s Intellectual Property;
(iv) in respect of or associated with any of Cleanaway’s products and any alterations or additions or methods of making, using, marketing, selling or providing these products; or
(v) pursuant to Cleanaway’s specification, direction or instruction.

(c) Cleanaway will only own and be entitled to the benefit of Intellectual Property developed by the Supplier in the circumstances set out in clause 13(b) of these Conditions.

(d) The Supplier assigns to Cleanaway all Intellectual Property referred to in this clause 13. This assignment occurs immediately on creation of that Intellectual Property.

(e) The Supplier must take any action that may be necessary to give full effect to this clause 13, including executing any documents.

(f) The Supplier must not use or reproduce Cleanaway’s Intellectual Property without Cleanaway’s written authorisation.

(g) The Supplier:

(i) warrants that, to the best of its knowledge and endeavours, completing the Services under the Agreement will not infringe any Intellectual Property rights belonging to any third party;
(ii) indemnifies Cleanaway against all Claims against it arising from any actual or alleged infringement.

(h) This clause 13 continues to apply after the termination of the Agreement.

14 Confidentiality

(a) During the Term of the Agreement, and (if applicable) after the Agreement’s termination, the Supplier may only use or disclose Confidential Information in the following circumstances:

(i) with Cleanaway’s prior written consent;
(ii) where it is strictly necessary so that the Supplier can perform its obligations under the Agreement; or
(iii) where the Supplier is legally obliged to do so by a court, commission or tribunal.

(b) The Supplier must take all steps necessary to maintain the confidential nature of the Confidential Information, including ensuring proper and secure storage of the Confidential Information.

(c) If the Supplier is required by law or by a court to disclose Confidential Information, the Supplier will immediately notify Cleanaway of such disclosure requirement and use its best endeavours to limit the Confidential Information which is disclosed.

(d The Supplier acknowledges that:

(i) the Confidential Information is and will at all times remain the property of Cleanaway;
(ii) a breach of this clause 14 would be harmful to Cleanaway’s business interests;
(iii) monetary damages alone would not be a sufficient remedy for a breach of this clause 14; and
(iv) in addition to any other remedy which may be available in law or equity, Cleanaway is entitled to interim, interlocutory and permanent injunctions (or any of them) to prevent breach of this clause 14 and to compel specific performance of it.

(e) The Supplier’s obligations and undertakings under this clause 14 continue after, and are not diminished by, the termination of the Agreement.

15 Duty to deliver up material

(a) On the termination of the Agreement, or when requested by Cleanaway, the Supplier must deliver to Cleanaway:

(i) the Confidential Information;
(ii) any of Cleanaway’s Intellectual Property; and
(iii) any other property of Cleanaway, which is in the Supplier’s possession, custody or control.

(b) If Cleanaway’s property is in the form of video tape, audio tape, digital recording, electronic recording, computer information, software or any similar medium, Cleanaway may require the Supplier to:

(i) delete or erase the information, so that it cannot be retrieved; and
(ii) provide Cleanaway with reasonable evidence of its deletion or erasure.

16 Indemnity

The Supplier indemnifies Cleanaway, its related bodies corporate, and each of their representatives and holds them harmless from and against any and all claims, suits, actions, liability, loss judgements or damages, whether ordinary, special or consequential arising directly or indirectly from or in connection with:

(a) the acts, negligence, omissions or wilful misconduct of the Supplier;

(b) the Services supplied;

(d) a claim that any good or Services supplied to Cleanaway infringes upon or misappropriate the Intellectual Property rights of another person.

17 Termination

(a) Cleanaway may terminate the Agreement for its convenience by giving ninety (90) days’ notice in writing to the Supplier. If Cleanaway terminates the Agreement under this clause 17(a), then Cleanaway must pay the Supplier for Services properly performed by the Supplier until the Supplier received the notice of termination.

(b) If a party (the Defaulting Party) has breached a material term of the Agreement, then the other party (the Non-Defaulting Party) may give a written notice to the Defaulting Party describing the breach. If the breach is not remedied by the Defaulting Party within 30 days after the date on which the notice was given, then the Non-Defaulting Party may terminate the Agreement by further written notice to the Defaulting Party.

(c) A party may terminate the Agreement immediately if the other party dies, becomes insolvent or bankrupt, or any court action is threatened or commenced (or resolution proposed or passed) to place that party under any form of bankruptcy, insolvency, administration, receivership or liquidation.

(d) Clauses 10, 13, 14 and 15 of these Conditions will survive termination of the Agreement.

18 Insurance

During the period of the Agreement, the Supplier must at its own expense:

(a) maintain appropriate insurance in relation to public liability and product liability with a reputable insurer for at least $20,000,000, to cover all insurable sums which the Supplier may become legally liable to pay consequent on the death of or bodily injury (including illness or disease) to any natural person or loss of or damage to (including loss of use of) any real or personal property; and

(b) maintain any other insurance required by law (including without limitation, worker’s compensation and employee’s liability insurance).

The Supplier must, upon Cleanaway’s request, provide Cleanaway with certificates of currency with respect to these insurance policies.

19 Personal Property Security Register

The Supplier:

(a) acknowledges and agrees that:

(i) the Agreement constitutes a Security Agreement; and
(ii) the Agreement creates a Security Interest of Cleanaway in:

(A) all materials, equipment and other things intended for the Services which are located on the Supplier’s site or off site; and

(B) all Service documents.

(Collateral);

(b) consents to Cleanaway registering Cleanaway’s Security Interest in the Collateral;

(d) undertakes to:

(i) promptly sign any further documents and provide any further information (such information to be complete, accurate and up-to date in all respects) which Cleanaway may reasonably require;
(ii) not register, or permit to be registered by any third party an interest in the Collateral without the prior consent of Cleanaway;
(iii) keep full and complete records of the Collateral; and
(iv) do anything which Cleanaway reasonably requires for the purpose of ensuring that the Security Interest is enforceable and perfected and to enable Cleanaway to exercise its rights in connection with the Security Interest;

(e) agrees that, to the extent permitted by law, the following provisions of the PPSA do not apply to the Agreement: (i) section 95; (ii) section 121(4); (iii) section 125; (iv) section 129; (v) section 130; (vi) section 132(3)(d); (vii) section 132(4); (viii) section 135; (ix) section 142; and (x) section 143;

(f) unless otherwise agreed to by Cleanaway in writing, the Supplier waives its right to receive a Verification Statement in accordance with section 157 of the PPSA; and

(g) must give Cleanaway written notice of any change to the Supplier’s name, address or other details set out in the Agreement within 5 Business Days after the date of such change.

20 Dispute resolution process

Without affecting the rights of Cleanaway or the Supplier at law or under any relevant or applicable statute, any dispute in connection with the Agreement must be resolved, at first instance, by discussion between a Representative nominated by Cleanaway and a Representative nominated by the Supplier. If the Representatives fail to resolve the dispute, the dispute shall be referred to mediation. The mediator and the process will be agreed upon by the Supplier and Cleanaway. Notwithstanding the existence of a dispute, the Supplier must continue to perform its obligations under the Agreement.

21 Precedent

These Conditions shall apply to all contracts for the purchase of Services by Cleanaway from the Supplier to the exclusion of any other terms and conditions or any other materials which the Supplier may purport to apply or which are endorsed upon any correspondence or documents issued by the Supplier, irrespective of their date of communication to Cleanaway, except to the extent that the Supplier’s terms and conditions are expressly agreed to in writing and signed by Cleanaway. The Supplier may not rely on any representation by Cleanaway that are not included in the Agreement.

22 Variation

(a) Cleanaway may at any time by written notice to the Supplier, add, omit, amend, supplement or replace a Purchase Order. Such addition, omission, amendment, supplement or replacement will apply under the Agreement from the date on which Cleanaway gives the Supplier the written notice of that addition, omission, amendment, supplement or replacement.

(b) Where an addition, omission, amendment, supplement or replacement under clause 22(a) of these Conditions would result in variation to the Price, the Supplier must immediately advise Cleanaway in writing of that varied Price (which must be determined by the same method of pricing for the provision of the original Services). A variation to the Price is not effective unless it is communicated to Cleanaway in writing and approved by Cleanaway.

23 Miscellaneous

(a) Any debt due from or moneys payable by the Supplier to Cleanaway, whether under the Agreement or otherwise, may be deducted by Cleanaway from any moneys due or to become due to the Supplier under the Agreement. Cleanaway is entitled to recover from the Supplier any balance that remains owing after such deduction.

(b) A waiver by a party:

(i) In respect of a breach of a provision of the Agreement by the other party will not constitute a waiver in respect of any other breach of that or another provision; and
(ii) Is not effective unless it is in writing, and only relates to the specific purpose for which it is given.

(c) The Agreement is governed by the laws of the state of Victoria, Australia. Each party irrevocably submits to the non-exclusive jurisdiction of courts with jurisdiction in the state of Victoria, Australia, and waives any right to object to the venue on any ground.

(d) The Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one instrument.