Goods and services

GMS PACIFIC PTY LTD – TERMS AND CONDITIONS (GOODS & SERVICES)

This agreement is made between

GMS PACIFIC PTY LTD (ACN 006 109 575) of 278-280 Ferntree Gully Road, Notting Hill VIC 3168 (GMS)

and

the CUSTOMER described in the Quotation (Customer).

BACKGROUND

A. GMS is a supplier of the Goods and the Services.

B. The Customer wishes to purchase the Goods and/or the Services from GMS.

C. GMS has agreed to sell to, and the Customer has agreed to buy, the Goods and/or the Services on the terms set out in this agreement.

OPERATIVE PROVISIONS

1. DEFINITIONS AND INTERPRETATION

1.1. Definitions

Address means the address of the Customer specified in the Quotation.

Price means the total price of the Goods and/or the Services specified in the Quotation.

Confidential Information means this agreement, all related information and documents and information that is by its nature confidential but does not include:

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

b. information in the public domain other than as a result of disclosure by a party in breach of its obligations of confidentiality under this agreement.

Force Majeure Event means any occurrence or omission as a direct or indirect result of which the Party relying on it is prevented from or delayed in performing any of its obligations under this agreement and which is beyond the reasonable control of that Party and could not have been prevented or mitigated by reasonable diligence or precautionary measures, including forces of nature, natural disasters, acts of terrorism, riots, revolution, civil commotion, epidemic, industrial action and action or inaction by a government agency.

Goods means the goods specified in the Quotation.

GST means:

a. the same as in the GST Law;

b. any other goods and services tax, or any tax applying to this agreement in a similar way; and

c. any additional tax, penalty tax, fine, interest or other charge under a law of such a tax.

GST Law means the same as “GST law” in A New Tax System (Goods and Services Tax) Act 1999 (Cth).

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

Quotation means the quotation issued by GMS to the Customer to which these terms and conditions apply.

Services means the services specified in the Quotation.

1.2. Interpretation

Unless the context requires otherwise:

a. a reference to a person includes a corporation or any other legal entity;

b. the singular includes the plural and vice versa;

c. words importing one gender include all other genders;

d. headings are for convenience and do not form part of this agreement or otherwise affect the interpretation of this agreement;

e. the term "includes" (or any similar term) means "includes without limitation"; and

f. a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.

2. AGREEMENT TO BUY AND SELL

In consideration for payment of the Price by the Customer to GMS, GMS sells and the Customer buys the Goods and/or the Services on the terms of this agreement.

3. DELIVERY

a. Notwithstanding anything else in this agreement, the Goods will be delivered by GMS:

i. as set out in the Quotation; or

ii. if not stated in the Quotation, under Ex-Works conditions according to the INCOTERMS® 2020 published by the International Chamber of Commerce in Paris.

b. Freight fees, costs and expenses are not included in the Price and will be charged by GMS to the Customer.

c. GMS will deliver the Goods to the Address.

d. If the Customer is unable or refuses to accept delivery of the Goods and/or provision of the Services:

i. it must fully indemnify GMS for direct or indirect costs incurred by the subsequent delay in delivery of the Goods and/or provision of the Services; and

ii. GMS will have the option of treating the non-delivery as a Terminating Event.

4. PRICE

a. In consideration for the Goods and/or the Services, the Customer must pay to GMS the Price.

b. The Customer must pay GMS the Price upon acceptance of this agreement or as otherwise stated in the relevant credit application.

c. The Price is exclusive of freight, taxes, duties or surcharges relevant to this agreement or to the Goods, the Services or their delivery.

5. TITLE

Title in the Goods will remain with GMS until the Customer makes payment of the full amount of the Price, at which time title in the Goods will pass to the Customer.

6. RISK

a. Risk of loss or damage to the Goods will pass to the Customer immediately upon delivery thereof.

b. GMS will not be liable for defects resulting from improper use of the Goods, whether by the Customer or by a third party.

7. PAYMENTS

a. If payment of any amount is not made on or before the due date:

i. interest will be payable by the Customer on the overdue amount at a rate 2% higher than the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic) as at the date of the default; and

ii. interest will accrue daily from the due date for payment until the outstanding amount is paid in full;

iii. GMS will be entitled to suspend its remaining obligations under this or any related agreement;

iv. GMS may grant an extension of time for payment or, at its option, treat the failure to pay as a Terminating Event.

b. GMS can apply amounts it receives from the Customer towards amounts owing to it in such order as GMS chooses.

c. GMS may off-set against any money owing to the Customer amounts owed to GMS by the Customer on any account whatsoever.

d. The Customer is liable for all reasonable expenses (including contingent expenses such as debt collection commission) and legal costs (on a full indemnity basis) incurred by GMS for enforcement of obligations and recovery of monies due from the Customer to GMS.

8. GST

a. Words defined in the GST Law have the same meaning in this clause, unless the context makes it clear that a different meaning is intended.

b. All amounts payable under this agreement are expressed exclusive of GST.

c. In addition to paying any and all amounts payable under or in connection with this agreement (which are all exclusive of GST), the Customer must:

i. pay to GMS an amount equal to any GST payable from any supply by GMS in respect of which the relevant amount is payable under or in connection with this agreement; and

ii. make such payment on or before the date when the relevant amount payable under or in connection with this agreement is due.

d. GMS will issue a tax invoice to the Customer for any supply under or in connection with this agreement.

9. LIABILITY

a. Except in relation to liability for personal injury (including sickness and death), property damage or an infringement of confidentiality or Intellectual Property Rights, and subject to any non-excludable statutory liability, the liability of GMS for damages in respect of any act or omission of GMS in connection with its obligations under this agreement will not exceed the amount (if any) paid by the Customer to GMS under or in connection with this agreement, even if GMS has been advised by the Customer as to the possibility of such losses being incurred.

b. In respect of any claim between the parties under or in connection with this agreement, the parties agree that to the maximum extent permitted by law, the operation of Part IVAA of the Wrong Act 1958 (Vic) or of any laws having a similar effect in the Commonwealth and other states and territories of Australia with respect to proportionate liability, are excluded and have no application or effect.

c. To the full extent permitted by law, GMS will not be liable for any indirect, incidental, or consequential damages, such as but not limited to any loss of profit, loss of anticipated savings, loss of data, or any other economic advantage arising out of or in connection with this agreement.

d. Either party's liability for any claim relating to this agreement will be reduced to the extent to which the other party contributed to the damage arising from the claim.

10. WARRANTIES

Except for any warranties which by law cannot be excluded, to the full extent permitted by law, GMS makes no representation or warranty of any kind or nature, either in fact or by operation of law, statutory or otherwise, express or implied, (including by way of example and without limitation, any warranty of merchantability, fitness for a particular purpose, or non-infringement) all of which warranties are expressly disclaimed

11. IMPLIED TERMS AND CONSUMER GUARANTEES

a. Subject to clause 11(b), any condition or warranty which would otherwise be implied in this agreement is excluded.

b. Liability of GMS for breach of a guarantee conferred by the Australian Consumer Law (ACL) (other than those conferred by sections 51 to 53 of the ACL) is limited:

i. in the case of goods, to any one of the following as determined by GMS in its sole and absolute discretion:

A. the replacement of the goods or the supply of equivalent goods;

B. the repair of the goods;

C. the payment of the cost of replacing the goods or of acquiring equivalent goods; or

D. the payment of the cost of having the goods repaired; and

ii. in the case of services, to any one of the following as determined by GMS in its sole and absolute discretion:

A. the supplying of the services again; or

B. the payment of the cost of having the services supplied again.

12. TERMINATION

a. For the purpose of this clause, each of the following is a Terminating Event:

i. the breach or threatened breach by either party of any of its material obligations under this agreement;

ii. the appointment of any type of insolvency administrator in respect of the property or affairs of either party;

iii. an insolvency event occurs, other than an internal reconstruction with notice to the other party;

iv. the entry or proposed entry by either party into any scheme, composition or arrangement with any of its creditors;

v. the merger with or the takeover of either party by another person; and

vi. any event described in this agreement as a Terminating Event.

b. Subject to clause 12(c), this agreement may be terminated immediately upon the happening of a Terminating Event at the option of the affected party.

c. If a Terminating Event occurs, the affected party must give to the other party notice of the happening of the Terminating Event and require the breach to be remedied or a written undertaking to be given that the breach will not occur, as the case may be. If the breach is not remedied or the undertaking not given (as the case may be) within ten (10) business days, the affected party may agree to waive or suspend its rights under this clause at its sole discretion.

d. Neither party will be liable for the consequences of an occurrence of any event beyond its reasonable control.

e. Nothing in this clause affects the right of the terminating party to pursue any other remedy available to it at law arising out of the Terminating Event, subject where applicable to any cap on, or exclusion of, liability set out in this agreement.

f. Exercise of the right of termination afforded to either party under this clause will not prejudice the legal rights or remedies which either party may have against the other in respect of a breach of any term, condition or warranty of this agreement.

g. Any termination of the agreement will not affect any accrued rights or liabilities of either party, nor will it affect any provision of this agreement which is expressly or by implication intended to continue in force after such termination.

h. The obligations of the parties that by their nature could reasonably be construed as being intended to continue to apply beyond the termination of this agreement will continue to apply.

13. CONFIDENTIALITY

a. A party must not, without the prior written approval of the other party, use or disclose the other party’s Confidential Information.

b. A party will not be in breach of clause 13(a) in circumstances where it is legally compelled to disclose the other party’s Confidential Information.

c. Each party must take all reasonable steps to ensure that its employees and agents, and any sub-contractors engaged for the purposes of this agreement, do not make public or disclose the other party’s Confidential Information.

d. Regardless of any other provision of this clause, a party may disclose the terms of this agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

e. This clause will survive the termination of this agreement.

14. FORCE MAJEURE

a. If the performance of this agreement or any obligation under it is prevented, restricted or interfered with by reason of a Force Majeure Event, the party so affected (upon giving prompt notice to the other party) is excused from performance to the extent of the prevention, restriction or interference.

b. The party so affected must use its best endeavours to avoid or remove the causes of non-performance and must continue performance under this agreement whenever such causes are removed or diminished.

15. RELATIONSHIP AND REPRESENTATIONS

a. Nothing contained in this agreement creates any relationship of partnership or agency between the parties

b. Each party represents and warrants that:

i. the execution and delivery of this agreement has been properly authorised;

ii. it has full corporate power to execute, deliver and perform its obligations under this agreement;

iii. this agreement constitutes a legal, valid and binding obligation of it enforceable in accordance with its terms by appropriate legal remedy;

iv. this agreement does not conflict with or result in the breach of or default under any provision of its constitution, or any material term or provision of any law or regulation to which it is a party or a subject or by which it is bound;

v. there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware, and which may have a material effect on the subject matter of this agreement; and

vi. it has not relied on any representation made by or on behalf of the other party, other than as expressly set out in this agreement.

16. ENTIRE AGREEMENT

a. This agreement supersedes all prior agreements, arrangements and undertakings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof.

b. By receiving delivery and/or supply of all or a portion of the goods and/or services supplied by GMS under this agreement, the Customer is deemed to have accepted (and agrees to be bound by) the terms and conditions of this agreement.

17. NOTICES

All notices which are required to be given under this agreement must be in writing and must be sent to the address of the recipient set out in the Quotation or such other address as the recipient may designate by notice given in accordance with this clause. Any notice may be delivered by hand or by prepaid letter or email. Any such notice will be deemed to have been served when delivered (if delivered by hand) or 48 hours after posting (except by prepaid letter) or on transmission by the sender (if sent by facsimile) or (if sent by email and unless agreed otherwise), when the email enters the recipient’s mail server.

18. ASSIGNMENT

a. GMS reserves the right to assign this agreement and to subcontract all or any of its obligations.

b. This agreement is personal to the Customer and the Customer may not without GMS’s prior written consent:

i. assign or dispose of;

ii. part with any interest in; or

iii. grant any lease or licence or delegate any of the rights conferred by,

this agreement, the benefit thereof or any rights or obligations under this agreement, whether in whole or in part.

19. GOVERNING LAW

This agreement will be governed by and construed in accordance with the laws for the time being in force in the State of Victoria and the parties agree to submit to the jurisdiction of the courts and tribunals of that state.

20. VARIATION

No addition to or variation/modification of this agreement will be effective or binding upon the parties unless made by written instrument signed by a duly authorised representative of the party.

21. WAIVER

a. No forbearance, delay or indulgence by a party in enforcing the provisions of this agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

b. No waiver of any rights under this agreement shall be valid unless made in writing and signed by an executive officer of that party.

22. SEVERABILITY

Should any part of this agreement be or become invalid, that part will be severed from this agreement. Such invalidity will not affect the validity of the remaining provisions of the agreement.

23. ELECTRONIC EXECUTION

This agreement may be accepted by the Customer by email or by electronic signature (regardless of the form of electronic signature utilised) and that this method is conclusive of the parties’ intention to be bound by this agreement.

24. DISPUTE RESOLUTION

a. A party claiming that a dispute, controversy or claim (Dispute) has arisen must notify the other party in writing giving details of the Dispute (Notice).

b. The parties must negotiate in good faith to settle, as soon as possible, any Dispute after Notice has been given.

c. If the parties are unable to resolve the Dispute within 20 days of the Notice referred to in clause 24(a), the parties must appoint a mediator or refer the Dispute to a mediator nominated by the chairperson of the Resolution Institute (ACN 008 651 232) or the chairperson’s nominee.

d. Unless the parties otherwise agree, any mediation will take place in Melbourne, Victoria in accordance with any mediation rules or guidelines of the Resolution Institute’s Mediation Rules then in force.

e. The parties will share equally the mediator’s fees and disbursements and all other costs of the mediations. Otherwise, each party will meet its own costs of and in connection with the mediation.

f. Nothing in this clause prevents a party to the agreement from seeking urgent injunctive relief or similar interim relief from a court.

g. This clause will remain operative after the contract has been performed and despite its termination.