MB GROUP SOLUTIONS - STANDARD TERMS AND CONDITIONS OF SALE

Introduction

These Terms and Conditions are incorporated into any contract between:

Supplier: MBGSHOLDINGS Pty Ltd (ACN 634 654 694) (Supplier)

Email: admin@mbgroupsolutions.com

and the Customer for the provision of Services by the Supplier to the Customer.

1. INTERPRETATION

1.1 In these Terms and Conditions:

(a) Business Day means a day that is not a Saturday, Sunday, public holiday or bank holiday in Melbourne;

(b) Customer means the person or entity to which a Quote is addressed or to whom the Services are provided to.

(d) Fees means the fees to be paid by the Customer to the Supplier as set out in a Quote.

(e) Order is defined in clause 2.3.

(f) Related Body Corporate is as defined in the Corporations Act 2001 (Cth).

(g) Services means the services to be provided by the Supplier to the Customer as expressly described in an Order.

(h) Quote means a quote provided to the Customer by the Supplier which may detail, amongst other things, the Services offered by the Supplier, the applicable Fees and any other necessary information.

1.2 In these Terms and Conditions:

(a) clause headings are inserted for ease of reference only and shall not form part of nor be used in the interpretation of these Terms and Conditions;

(b) words importing the singular shall include the plural and vice versa;

(d) a reference to a person shall be construed as a reference to an individual, firm, body corporate or other entity (whether incorporated or not), or, where a position is nominated, the individual occupying that position;

(e) references to the Schedule is a reference to the Schedule which forms part of these Terms and Conditions.

2. QUOTE

2.1 On the customer’s request, the Supplier will provide the Customer with a Quote specifying the Services, the estimated Fees and completion timeframe for such Services. A Quote is not binding unless and until such time as the Customer has confirmed in writing that it accepts the Quote.

2.2 The Supplier may revise the Quote at any time prior to the Customer’s written acceptance.

2.3 The Customer’s acceptance of the Quote will be deemed to be an order by the Customer (Order) which incorporates and is subject to these Terms and Conditions.

3. VARIATIONS

3.1 Where the Customer requests a variation to the Services, it must submit a written request to the Supplier who shall approve or reject such request within 5 Business Days of request (a rejection must be on reasonable grounds only).

3.2 In response to the written request submitted by the Customer under clause 3.1 above, the Supplier will provide the Customer with a quotation setting out the details of the variation and any additional Fees payable (if applicable).

3.3 The Supplier will be under no obligation to perform any of the variations as requested under clause 3.1 above until the Customer has confirmed in writing that it accepts the revised quotation.

3.4 An Order cannot be cancelled (in part or in full) without the prior written consent of the Supplier. Where an order is cancelled by the Customer, the Customer indemnifies the Supplier against any losses reasonably incurred by the Supplier as a result of such cancellation.

4. FEES AND PAYMENT

4.1 The Customer must pay the Fees for the Services as set out in each Order.

4.2 The Supplier will invoice the Customer for the Services performed on an ad hoc basis as works are undertaken. Unless otherwise stipulated in the relevant Order, all Fees must be paid by the Customer within 7 days of the invoice date.

4.3 The Supplier may charge to the Customer:

(a) any fees for additional work undertaken by the Supplier as a consequence of the Customer’s variation of an Order pursuant to clause 3;

(b) any costs incurred by the Supplier in reliance on incorrect or inadequate information provided by the Customer; and

(c) other reasonable charges, fees or disbursements properly incurred by the Supplier in connection with providing the Services.

5. GOODS AND SERVICES TAX

5.1 In this clause 5, words and expressions which are not defined in these Terms and Conditions but which have a defined meaning in GST Law have the same meaning as in the GST Law and GST Law has the meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999.

5.2 Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under the Agreement are exclusive of GST.

5.3 If GST is payable in respect of any supply made by a supplier under the Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply. Subject to clause 5.4, the recipient will pay the amount referred to in this clause 5.3 in addition to and at the same time that the consideration for the supply is to be provided under these Terms and Conditions.

5.4 The supplier must deliver a tax invoice or an adjustment note to the recipient before the supplier is entitled to payment of an amount under clause 5.3. The recipient can withhold payment of the amount until the supplier provides a tax invoice or an adjustment note, as appropriate.

5.5 If an adjustment event arises in respect of a taxable supply made by a supplier under the Agreement, the amount payable by the recipient under clause 5.3 will be recalculated to reflect the adjustment event and a payment will be made by the recipient to the supplier or by the supplier to the recipient as the case requires.

5.6 Where a party is required under these Terms and Conditions to pay or reimburse an expense or outgoing of another party, the amount to be paid or reimbursed by the first party will be the sum of:

(a) the amount of the expense or outgoing less any input tax credits in respect of the expense or outgoing to which the other party is entitled; and

(b) if the payment or reimbursement is subject to GST, an amount equal to that GST.

6. NON-PAYMENT

6.1 The Customer must reimburse the Supplier for any costs, expenses or losses incurred by the Supplier as a result of the Customer’s failure to pay to the Supplier all sums when due including any debt collection and legal costs (on a full indemnity basis).

6.2 If any amount owed to the Supplier is due but unpaid, the Supplier may in its discretion:

(a) withhold the provision of Services under any Order until the overdue amounts are paid in full;

(b) charge interest at 0.05% per day on the overdue amounts until such time as the overdue amounts are paid in full; and/or

6.3 Until the Customer has paid all amounts outstanding in relation to an Order, title and property in the Goods (if applicable) shall not pass from the Supplier to the Customer.

7. PROVISION OF SERVICES

7.1 The Supplier shall provide the Services in accordance with each respective Order subject to any variations approved under clause 3.

7.2 The Services will be performed during the Supplier’s normal working hours, being 7am to 3pm Monday to Friday (Ordinary Hours), unless otherwise stated in the Order. Should the Customer require the Supplier to perform the Services outside the prescribed hours, or, in the opinion of the Supplier, it is otherwise reasonably necessary to do so, then the Supplier may work outside the Ordinary Hours. In such cases, the Fees will be proportionately increased to reflect any increased operating costs including, without limitation, increased labour rates.

7.3 The Supplier agrees to use reasonable commercial endeavours to complete the Services in accordance with the timeframe specified in the Order (if applicable). However, the parties agree that any timeframe is an estimate only and that the Supplier shall bear no liability whatsoever to the Customer if it does not perform the Services within the specified timeframe.

8. NATURE OF RELATIONSHIP

The Supplier enters into these Terms and Conditions and agrees to perform its obligations as an independent contractor. Nothing in these Terms and Conditions is intended to create, or is evidence of, a relationship of employment, partnership, agency or joint venture between the parties, or their personnel.

9. SUPPLIER’S OBLIGATIONS AND WARRANTIES

The Supplier warrants to the Customer that:

(a) it will provide the Services in a professional manner using reasonable care, diligence and skill (to the extent and degree generally expected of a skilled, technical or professional person, experienced in the provision of services equivalent or similar to the Services);

(b) its personnel are suitably experienced and qualified to perform the Services;

(d) that it holds any relevant licence, authorisation, permit or qualification required to perform the Services.

10. CUSTOMER’S OBLIGATIONS

The Customer must:

(a) provide all reasonable information, assistance and cooperation required by the Supplier to enable it to provide the Services and to perform its obligations under these Terms and Conditions and any Order;

(b) ensure that all of its personnel reasonably support, participate and cooperate with, including following the reasonable direction of, the Supplier in relation to any Order; and

(c) allow reasonable access to the Designated Site and systems to the extent reasonably required by the Supplier to perform the Services, provided that the Supplier will comply with all reasonable security, health and safety requirements in connection with such access, as may be notified by the Customer in advance.

11. LIABILITY

11.1 To the maximum extent permitted by law, the Supplier’s liability to the Customer under these Terms and Conditions and each Order shall be limited to:

(a) reperforming the Services; or

(b) paying the Customer the reasonable cost of having the Services reperformed,

at the election of the Supplier.

11.2 Notwithstanding any other provision of these Terms and Conditions, the Supplier shall not be liable to the Customer or any third party for any indirect or consequential losses or damage (including, without limitation, for loss of revenue or profits, or other commercial or economic loss of any kind) arising from the performance or non-performance by the Supplier of its obligations under these Terms and Conditions.

12. INDEMNITY

The Customer indemnifies and keeps indemnified the Supplier, including its directors, employees, agents and representatives, against any claims, actions, losses, damages, costs (including legal costs on an indemnity basis), and penalties arising from or in connection with:

(a) its breach of this Agreement or any Order; or

(b) its or its personnel’s fraudulent or negligent act or omission,

except to the extent that the Supplier caused or contributed to such loss.

13. TERMINATION

13.1 Early termination by either party

Either party may immediately terminate an Order by providing the other with written notice if:

(a) the other party breaches a material provision of these Terms and Conditions or an Order which is incapable of remedy;

(b) the other party breaches a material provision of these Terms and Conditions or an Order and fails to remedy that breach to the reasonable satisfaction of the non-breaching party within 30 days of notice of such breach; or

13.2 Early termination by the Supplier

The Supplier may terminate an Order at any time where it is in its legitimate interests to do so and without penalty by providing the Customer with not less than 30 days’ prior written notice.

13.3 Effect of termination

(a) If an Order is terminated by the Customer pursuant to clause 10 or the Supplier pursuant to clause 9, the Customer must pay the Supplier any Fees accrued but unpaid for Services performed as of the date of termination.

(b) If an Order is terminated by the Supplier pursuant to clause 9, the Supplier shall be entitled to recover from the Customer all Fees which would have been payable by the Customer under that Order on a percentage-of-completion basis, had the Order not been terminated.

14. DELAYS

14.1 Neither party shall be in breach of this Agreement or any Order nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement or any Order if such delay or failure results from events beyond its reasonable control, including strikes; lock-outs or other industrial disputes; failure of a telecommunications network or the internet; act of God; war; riot; civil commotion; compliance with any governmental order, rule, regulation or direction; the Customer’s failure to comply with clause 10; unavailability of suitable consumable parts; failure of transportation affecting the Supplier or its own suppliers; and fire, flood, or storm (“Force Majeure Event”).

14.2 Where a party is or is likely to be affected by a Force Majeure Event, that party (“Affected Party”) must immediately notify the other party (“Non-Affected Party”) of the fact, such notice to include full particulars of the event, an estimate of its likely duration, the extent to which the event affects delay on the Affected Party’s obligations and the steps (if any) undertaken to rectify or minimise the delay.

14.3 Where an Affected Party has given notice under clause 14.2:

(a) the Affected Party’s obligations under this Agreement and any applicable Order are suspended to the extent they are affected by the Force Majeure Event for so long as the Force Majeure Event continues; and

(b) the Affected Party shall use its best endeavours to minimise, overcome or remove the effects of the Force Majeure Event as quickly as possible.

14.4 If the period of delay or non-performance pursuant to the Force Majeure Event continues for three months, the Non-Affected Party is entitled to terminate this Agreement or any applicable Order by giving 10 days' Notice to the Affected Party.

15. SUBCONTRACTING

The Supplier may subcontract the Services to a subcontractor without the Customer’s prior consent.

16. SURVIVAL OF OBLIGATIONS

Any indemnity or any obligation of confidence under these Terms and Conditions is independent and survives any termination of the Supplier's engagement or these Terms and Conditions. Also, any other item by its nature is intended to survive any expiration or termination of the Supplier's engagement or these Terms and Conditions, survives any such expiration or termination, including but not limited to, obligations concerning return of property or non-solicitation.

17. NOTICES

17.1 A notice or other communication required or permitted to be given by one party to another must be in writing and:

(a) delivered personally;

(b) sent by pre-paid mail to the address of the addressee specified in these Terms and Conditions; or

(c) sent by facsimile transmission to the facsimile number of the addressee with acknowledgment of receipt from the facsimile machine of the addressee.

17.2 A notice or other communication is taken to have been given (unless otherwise proved):

(a) if mailed, on the second Business Day after posting; or

(b) if sent by facsimile before 4 pm on a Business Day at the place of receipt, on the day it is sent and otherwise on the next Business Day at the place of receipt.

17.3 A party may change its address for service by giving notice of that change in writing to the other parties.

18. WAIVER OR VARIATION

18.1 A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

18.2 The exercise of a power or right does not preclude:

(a) its future exercise; or

(b) the exercise of any other power or right.

18.3 The variation or waiver of a provision of these Terms and Conditions or a party’s consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.

19. GOVERNING LAW AND JURISDICTION

19.1 These Terms and Conditions is governed by the laws of Victoria.

19.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria.

20. WHOLE AGREEMENT

In relation to the subject matter of these Terms and Conditions:

(a) these Terms and Conditions is the whole between the parties; and

(b) these Terms and Conditions supersedes all oral and written communications by or on behalf of any of the parties.

21. NO RELIANCE ON WARRANTIES AND REPRESENTATIONS

In entering into these Terms and Conditions, each party:

(a) has not relied on any warranty or representation (whether oral or written) in relation to the subject matter of these Terms and Conditions made by any person; and

(b) has relied entirely on its own enquiries in relation to the subject matter of these Terms and Conditions.

This clause does not apply to warranties and representations that these Terms and Conditions expressly sets out.

22. SEVERANCE

If any part of these Terms and Conditions is invalid or unenforceable, these Terms and Conditions does not include it. The remainder of these Terms and Conditions continues in full force.

23. DECLARATION

23.1 The Customer has carefully read and fully understands these Terms and Conditions.

23.2 The Customer agrees that these Terms and Conditions (as varied by the parties from time to time) are incorporated into every Order for the provision of Services by the Supplier to the Customer, notwithstanding any other agreement or provision to the contrary and override any such other provision.

24. ACCEPTANCE

The Customer hereby accepts it will be bound by these Terms and Conditions.