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Standard Maintenance Terms & Conditions

 Global Coffee Solutions Pty Ltd (ABN 35 112 300 277), 93 Jardine Street, Fairy Meadow, NSW 2519 Commercial in Confidence Page

 

 1 DEFINITIONS AND INTERPRETATION

In this Agreement (being these Terms and Conditions for Maintenance Services, the Scope of Works (Services) and any Schedules) the following words shall have the meanings set out below unless the context requires otherwise. If and to the extent of any inconsistency between these Terms and Conditions and the Scope of Works and any Schedules of this Agreement, these Terms and Conditions shall prevail.

Business Hours: 8.00 am to 5.00 pm, Monday to Friday (inclusive) excluding bank and public holidays in the applicable State where the Maintained Equipment is located;

Commencement Date: the date set out in the Scope of Works (Services);

Customer Contact(s): where applicable, the individual(s) named by the Customer for the purposes of liaising with GCS and facilitating access to the Customer’s premises whose details are provided to GCS in writing;

Customer Support Centre: the Customer contact telephone number or email address provided by GCS to the Customer where Faults are reported, logged and relevant information can be conveyed;

Customer Support Request: any request properly made by the Customer under this Agreement;

GCS Documentation: all drawings, designs, diagrams, specifications, manuals, reports and other information and documentation (whether in paper, electronic or other format) supplied to the Customer by GCS for the purposes of this Agreement;

Fault: a failure of a part and/or the Maintained Equipment resulting in materially decreased operating performance. Faults will be classified as per definitions in the Scope of Works;

Initial Term: the initial term of this Agreement set out in the Scope of Works (Services);

Intellectual Property Rights: all inventions, patents, trade marks, designs, design rights, trade secrets, copyright, database rights, trade, business or company names and other similar rights, whether registered, applied for or unregistered anywhere in the world, whether existing at the date of or during the term of this Agreement; and “Intellectual Property” shall have the corresponding meaning;

Invoicing: each date on which payment is due and payable as set out in the Scope of Works (Services);

Maintained Equipment: all hardware to be maintained by GCS pursuant to this Agreement and which is listed in the Scope of Works (Services);

Parties: GCS and the Customer, and “Party” means either of them;

Price: all sums payable for the Services, as specified in the Scope of Works (Services) (and as may be amended from time to time in accordance with this Agreement);

Services: means the services to be provided by GCS to the Customer under this Agreement as set out in the Scope of Works (Services);

Scope of Works (Services): the detailed description of the Services to be provided under this Agreement or in the absence of a specific Scope of Works, the corresponding GCS quotation.

Variation: an amendment to this Agreement;

Year: the period of 12 consecutive calendar months from the end of the Initial Term and each subsequent 12 month period.

 

2 SERVICES

2.1 Subject to the terms of this Agreement, GCS shall, where applicable:

2.1.1 ensure that the Services are performed by employees, agents or sub-contractors of GCS and that such employees, agents or sub-contractors possess suitable skills and experience and perform the Services with reasonable care and skill;

2.1.2 provide the Customer with occasional telephone and email advice on the use and operation of the Maintained Equipment as set out in the Scope of Works (Services);

2.1.3 agree with the Customer the Priority classification of any Fault in Maintained Equipment in accordance with the performance targets set out in the Scope of Works (Services);

 

3 COMMENCEMENT AND DURATION

3.1 This Agreement will commence on the Commencement Date and, subject only to earlier termination in accordance with its terms, shall continue in effect for the Initial Term and thereafter for 12 month periods unless and until terminated by either Party by at least 60 clear days’ prior written notice to the other, such notice to expire not before the end of the Initial Term or any subsequent Year period.

 

4 CUSTOMER OBLIGATIONS

4.1 The Customer shall, at its own expense, without prejudice to the specific obligations set out in the Scope of Works (Services), do the following:

4.1.1 secure all wayleaves, permissions, licences, waivers, consents, registrations and approvals necessary for GCS, its agents and sub-contractors to provide the Services;

4.1.2 provide a suitable supply of electricity & water, and any other services as GCS shall reasonably require from time to time;

4.1.3 operate the Maintained Equipment in accordance with the relevant manufacturer’s instructions and recommendations, including following the prescribed cleaning procedures;

4.1.4 provide or procure the provision of free, safe and unimpeded access to the Customer’s premises to GCS, its employees, agents and sub-contractors for the purposes of providing the Services. To enable access, the Customer shall provide GCS with a list of Customer Contacts who can be reached during Business Hours;

4.1.5 where applicable, and except as specifically provided in the Scope of Works (Services), not permit anyone except representatives of GCS and/or its subcontractors to perform maintenance, attempt repairs or undertake any works on the Maintained Equipment;

4.2 GCS will not be liable for any breach of this Agreement that is as a result of any failure by the Customer to comply with the obligations set out at clause 4.1 above.

 

5 PAYMENT

5.1 In consideration of GCS providing the Services, the Customer shall pay to GCS the Price in the instalments and on the dates specified in the Scope of Works (Services).

5.2 GCS may increase the Price with effect from any anniversary of the Commencement Date by an amount equivalent to the increase in the Consumer Price Inflation (CPI) for the immediately preceding period of twelve months. Should the cost of labour, transport or materials  increase by more than CPI,GCS may add the amount of this increase to the Price.

5.3 Any additional charges made by GCS to the Customer under this Agreement shall be payable within 14 days from the date of the invoice.

5.4 The Price and any other sums payable under this Agreement are exclusive of Goods & Services Tax (GST) and where appropriate, GST shall be added and payable at the then applicable rate. All payments made under this Agreement shall be made without any deduction, withholding or set-off.

5.5 Without prejudice to any other rights and remedies of GCS, if payment of any sum due under this Agreement by the Customer is delayed by more than 14 days from the relevant payment date, GCS shall be entitled to charge interest from the relevant payment date at a rate equivalent to its banker’s current bank overdraft rate plus 2% p.a. on the outstanding amount, calculated daily and compounded monthly, and GCS shall be entitled to suspend provision of the Services until payment is made in full.

 

6 VARIATIONS

6.1 Any Variation to this agreement must be agreed in writing and signed by an authorised signatory for and on behalf of each Party.

 

7 INTELLECTUAL PROPERTY

7.1 The parties agree and acknowledge that:-

7.1.1 Any Intellectual Property created by GCS during the course of this Agreement will vest in it absolutely and where applicable will be licensed to the Customer on a non-transferable, non-exclusive basis.

7.2 All copyright and other Intellectual Property Rights in the GCS Documentation shall remain the sole and exclusive property of GCS. The Customer shall have no rights in such, except that the Customer will have a non-transferable, non-exclusive licence to use such GCS Documentation as may be reasonably necessary to perform its obligations and exercise its rights under this Agreement. The Customer will not modify or change or translate any of the GCS Documentation or any part thereof without GCS's prior written consent and will not make any copies of the GCS Documentation except as may be reasonably necessary for back up purposes. The Customer agrees that it will not alter or obscure any ‘confidential information’ (or equivalent), copyright or trade mark notices which appear on the GCS Documentation. The Customer will ensure that any copies of the GCS Documentation made by it will contain the same ‘confidential information’ (or equivalent), copyright and trade mark notices as appear on the original.

7.3 Except as specifically authorised in this Agreement, neither Party shall use the other Party’s Intellectual Property Rights without the prior written consent of the other.

 

8 NEW LAW

8.1 Should new legal requirements (collectively “Change of Law”) come into force that affect any aspect of the Services.

8.2 The additional work occasioned by the Change of Law shall be treated as a Variation, with the consequences as to cost described in Clause 6.

8.3 GCS shall endeavour to complete the agreed modifications expeditiously, but nothing in this Agreement shall oblige it to complete them in time for the coming into force of the Change of Law.

 

9 EQUIPMENT

Maintained Equipment

9.1 The Customer acknowledges that the relevant supplier may not continue to support and provide parts for the Maintained Equipment during the term of this Agreement and accordingly the Services may be affected.

9.2 If the relevant third party supplier (or nominee) ceases to provide either support or spare parts for any of the Maintained Equipment during the term of this Agreement, GCS shall notify the Customer in writing with as much advance notice as is reasonably practicable and shall propose to the Customer alternative arrangements, for example:

9.2.1 a fixed price quotation for upgrading to the latest Maintained Equipment;

9.2.2 replacement equipment offering functionality not materially different from the Maintained Equipment; or and shall state whether the Price is to be adjusted as a result.

9.3 If GCS makes a proposal to the Customer under the preceding subclause, the Customer shall respond within 28 days and if appropriate may select the alternative offered that it prefers. If the Customer fails to respond or declines the proposal, GCS shall have no further obligation to the Customer to the extent of the impact of the relevant Maintained Equipment on the Maintained Equipment or any part of it.

10 CUSTOMER SUPPORT REQUEST

10.1 The Customer may make Customer Support Requests from time to time in accordance with the Scope of Works (Services).

10.2 The Customer shall ensure that the Fault is correctly designated as per definitions in the Scope of Works.

10.3 On receiving a Customer Support Request, GCS shall, subject to Clause 4, provide the Services as agreed. It shall do so during the contracted working hours set out in the Scope of Works (Services). Where it provides replacement parts to restore the Maintained Equipment to proper working order the parts removed will become the property of GCS and the replacement parts installed the property of the Customer.

10.4 GCS shall keep a service record of the Maintained Equipment, and shall make it available to the Customer upon the Customer’s written request. The service record will cover the immediately preceding period of up to 12 months, during which the Services were provided.

11 FORCE MAJEURE

11.1 In this Agreement, “Force Majeure” means any cause preventing either Party from performing all or any of its obligations which arises from, or is attributable to, acts, events, omissions or accidents beyond the reasonable control of the Party so prevented, including, but not limited to, war, civil disturbance, riot, embargo, any labour dispute (whether involving the workforce of the Party so prevented or any other party), malicious damage, failure of suppliers or subcontractors or inability to obtain supplies, fire, flood, act or omission of Government.

11.2 If either Party is prevented or delayed in the performance of any of its obligations under this Agreement by Force Majeure, that Party shall forthwith serve notice in writing on the other Party, specifying the nature and extent of the circumstances giving rise to Force Majeure. Subject to the provisions of this clause 14, that Party shall have no liability in respect of the performance of such of its obligations as are prevented by Force Majeure during the continuation of the events and for such time after they cease as is necessary for that Party, using its reasonable endeavours, to recommence its affected operations in order for it to perform its obligations.

11.3 If either Party is prevented from performing its obligations for a continuous period in excess of 3 months, the other Party may terminate this Agreement forthwith on service of written notice. In such circumstances, neither Party shall have any liability to the other, except that rights and liabilities which accrued prior to such termination (other than those arising directly from or attributable to the Force Majeure) shall continue to subsist.

11.4 The Party claiming to be prevented or delayed in the performance of any of its obligations under this Agreement by reason of Force Majeure shall use all reasonable endeavours to bring the Force Majeure to a close or to find a solution by which the Agreement may be performed, despite the continuance of the Force Majeure.

11.5 Force Majeure does not release either Party from any obligation to pay money under this Agreement.

 

12 LIMITATION OF LIABILITY

12.1 Each Party shall be liable to the other for loss of or damage to the other Party’s premises caused by the negligence of its employees, subcontractors or agents provided that the total aggregate liability of each Party in respect of all such loss or damage shall be limited to $1,000,000.

12.2 Subject to clauses 12.1, the entire aggregate liability of each Party to the other in connection with this Agreement, including for any breach of its contractual obligations (including but not limited to claims arising in respect of a breach of warranty); breach of statutory duty; and for any representation, statement or tortious act or omission, including negligence, shall be limited to the greater of $50,000 or an amount equal to the Charges paid by the Customer to GCS, save that nothing in this clause shall be taken to limit the liability of the Customer to pay the Charges.

12.3 Neither Party will have any liability to the other pursuant to this Agreement for any loss of profits or goodwill, loss of business, business interruption, loss of data, loss of anticipated savings, in each case whether direct or indirect, or for any type of special, indirect, or consequential loss or damage, or loss or damage suffered by the other Party as a result of any action brought by a third party, even if the loss or damage was reasonably foreseeable or that Party had been advised of the possibility of the other Party incurring it. If, and to the extent, a Party is found liable for any such loss, that Party’s liability will be limited as specified under clause 12.2.

12.4 Each Party shall maintain, with a reputable insurer carrying on business in Australia, a comprehensive insurance policy in respect of their respective liabilities under this clause 12.

 

13 TERMINATION

13.1 Each Party shall have the right (without prejudice to its other rights and remedies) to terminate this Agreement immediately by giving notice in writing to the other Party in any of the following circumstances:

13.1.1 a liquidator, administrator or receiver is appointed in respect of the whole or part of the assets or undertakings of the other Party, or the other Party enters into an arrangement with all or a class of its creditors, or it becomes unable to pay its debts when they fall due or winding up order is lodged with the Court in relation to the other Party, or, being an individual or firm, the other Party enters into bankruptcy, or

13.1.2 the other Party defaults in the due performance or observance of any material obligation under this

Agreement and (in the case of a breach capable of remedy) fails to remedy it within 30 days of the date of a written notice by the non-breaching Party requiring it to do so.

13.1.3 in the case of GCS only, licences granted to GCS and required for the purposes of the Works, or GCS's agency in respect of them, expire or are revoked, in which event GCS shall give to the Customer the maximum period of notice of termination reasonably practicable in the circumstances, or

13.1.4 In the case of GCS only, the Customer fails to make any payment when it becomes due to GCS.

13.2 Any termination of this Agreement shall be without prejudice to any other rights or remedies a Party may be entitled to under this Agreement or at law and shall not affect any accrued rights or liabilities of either Party nor the coming into or continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after termination.

13.3 In the event that this Agreement or any of the equipment listed in the Scope of Work is/are terminated during the Initial Term or prior to the expiry of any subsequent renewal period (otherwise than by either party for convenience pursuant to clause 3.1 or by the Customer pursuant to the limitations of this clause 13, the amount payable by the Customer by way of a premature termination fee shall be equal to any unpaid fees relating to the un-elapsed period.

 

14 SUSPENSION OF SERVICES

14.1 GCS may at its sole discretion suspend provision of the Services either in whole or in part until further notice on notifying the Customer in writing if:

14.1.1 GCS shall be entitled to terminate this Agreement in accordance with Clause 13.1; or

14.1.2 The Customer fails to make payments due under Clause 5 within 30 days of the relevant Payment Date

14.2 Any exercise or non-exercise by GCS of its right of suspension in respect of an event referred to in this Clause shall be without prejudice to GCS's right to terminate this Agreement subsequently in respect of the same or any other event.

14.3 The Customer shall reimburse GCS all costs and expenses incurred through the implementation of any such suspension or the recommencement of the provision of the Services as appropriate arising out of an event referred to in Clause 16.1.1.

14.4 If GCS duly suspends the Services in circumstances of the Customer misusing the Equipment contrary to the provisions of this Agreement, GCS may refuse to restore the Services until it receives an assurance from the Customer acceptable to GCS that there will be no further relevant contravention of this Agreement by the Customer, its officers, employees or agents.

 

15 CONFIDENTIALITY

15.1 Neither Party shall use, copy, adapt, alter, disclose or part with possession of any information or data of the other that is disclosed or otherwise comes into its possession directly or indirectly as a result of this Agreement and that is of a confidential nature (“Confidential Information”) except as strictly necessary to perform its obligations or exercise its rights under this Agreement, provided that this obligation shall not apply to Confidential Information that:

15.1.1 the receiving Party can prove was already in its possession at the date it was received or obtained; or

15.1.2 the receiving Party obtains from some other person without any breach of confidentiality; or

15.1.3 comes into the public domain otherwise than through the default or negligence of the receiving Party or that is independently developed by or for the receiving Party.

15.2 Nothing in this Clause shall prevent either Party disclosing any Confidential Information to the extent that it is required to disclose it by law or by order of any court or is under an obligation to disclose it to any government body, agency or regulatory body, provided that the Party seeking to rely on this Clause 15.2 gives to the other Party reasonable written notice of its intention to disclose.

15.3 The Parties shall ensure that their respective employees, agents and subcontractors comply with the provisions of this Clause 15 and the Parties shall be liable to each other for any breach of the provisions of Clause 15 by their respective employees, agents or subcontractors.

15.4 The obligations in this Clause shall continue in force notwithstanding termination of this Agreement for any reason.

 

16 GENERAL

16.1 Any failure or delay on the part of either Party to exercise any power or right under this Agreement shall not operate as a waiver of it, nor shall any single or partial exercise of any such right or power preclude any other or further exercise of the right or power.

16.2 The Customer shall not be entitled to assign or otherwise transfer or dispose of this Agreement or any of its rights or obligations under it without GCS’s prior written consent. GCS shall be entitled to assign or otherwise transfer or dispose of this agreement and any of it’s rights or obligations under it and shall be entitled to sub-contract all or any of it’s obligations under this agreement to a third party.

16.3 This Agreement constitutes the entire agreement between the Parties relating to the Works and supersedes all prior oral or written proposals, understandings or communications

16.4 This Agreement shall be governed by and construed solely in accordance with the laws of the state of N.S.W. Any dispute arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the N.S.W. Courts.


17 Non-Solicitation of Employees and Non-competition

During the term of this Agreement and for a period of 12 months thereafter the Customer shall not on its own behalf or on behalf of any person directly or indirectly entice or endeavour to entice away from GCS any employee who was at any time during the term of this Agreement directly involved in the supply of the Services.

17.1 In the event of any breach of Clause 17 by the Customer, the Customer shall:

17.2 promptly pay to GCS as liquidated damages a sum equal to 50% of the annual salary of the employee.

17.3 The Customer undertakes that it will not either directly or indirectly solicit or endeavour to solicit the supply of Products or Services of any Supplier of GCS from whom the Customer has received products or Services pursuant to this Agreement, that are the same as or compete with the Products and Services sold, provided or performed pursuant to this Agreement, for a period of 12 months from the termination of this agreement.

Severance Clause

18 If any provision of this agreement (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

If any invalid, unenforceable or illegal provision would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties