OPERATIVE PROVISIONS

1. Definitions and Interpretation
1.1. Definitions

Access Times means the hours specified in item 3 of Schedule 1;

Asphalt means the bitumen surface or tarmac being the uppermost surface of the Sub-base onto which the Product will be laid as part of the Works;

Claim means any present or future action, complaint, suit, proceeding, claim, cross-claim, set-off, demand, cause of action, liability and cost of any kind in respect of any Loss;

Commencement Date means the date for commencement of the Works as provided for in clause 3.4;

Defect means a material defect in the Works that has not been caused by or contributed to by you, as determined in the reasonable opinion of West Coast Sporting Surfaces;

Defect Rectification Period means the period specified in item 4 of Schedule;

Goods means all goods supplied by West Coast Sporting Surfaces to you pursuant to the Scope of Works;

Force Majeure Event means any occurrence or event:
a) 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;
b) which is beyond the reasonable control of that party; and
c) which could not have been prevented or mitigated by reasonable diligence or precautionary measures on the part of that party;

GST has the meaning given to that term in the GST Act;

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Product means surface to be laid by West Coast Sporting Surfaces as specified in item 11 of the Schedule;

Location means the location where the Works are to be performed as specified in item 2 of the Schedule;

Loss means in relation to a party, any damage, loss, cost, expense or liability incurred by the party, however arising and whether present or future, fixed or undetermined, actual or contingent;

Manufacturer’s Warranty means the warranty issued by the manufacturer to you in relation to the Product;

Order means any order by you to West Coast Sporting Surfaces for the performance of Works;

Payment Due Date: means the period specified in clause 4 of the Operative Provisions;

Practical Completion has the meaning specified in clause 3.6(a);

Purchase Price means the Purchase Price specified in item 1 of Schedule;

Quote means the estimate of the costs of the Works specified in Annexure A;

Schedule means a schedule to these Terms;

Scope of Works means the information contained in the documents and plans set out in Annexure A;

Sub-base means ground that is prepared onto which asphalt is laid, prior to the performance of the Works;

Works means the services to be supplied by the West Coast Sporting Surfaces to you, as set out in the Scope of Works; and

Term means the term of this agreement as specified in clause 2.

1.2. Interpretation

In this agreement, headings are for ease of reference only and do not affect the interpretation of this agreement, and unless the context otherwise requires:

a) words importing any gender include every gender;

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

c) words importing persons include individuals, firms, partnerships, trusts, associations, companies and corporations;

d) references to clauses, paragraphs and schedules are references to the relevant clause or paragraph in, or schedule to, this agreement;

e) any reference to a party is to a party to this agreement and includes that party’s personal representatives, successors and permitted agents;

f) a reference to a monetary amount, $, AUD or AUD$ is a reference to Australian dollars;

g) any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or bylaw made under that enactment; and

h) the word “including” (and related forms including “includes”) means “including without limitation”.

2. Term

This agreement commences on the Commencement Date and continues until the earlier of:

a) the date of termination of this agreement by West Coast Sporting Surfaces or you; and

b) the expiry of the Defects Rectification Period, whichever is the first to occur.

3. Scope of Works and Services

3.1. Consideration

a) In consideration of you paying to West Coast Sporting Surfaces the Purchase Price for the Works and the Goods, West Coast Sporting Surfaces agrees to perform the Works and provide the Goods to you on the terms and conditions set out in this agreement.

3.2. Your Responsibilities

a) Mobilisation You will provide West Coast Sporting Surfaces with clear access to the whole of the site and ensure the site is ready for West Coast Sporting Surfaces mobilisation before the date of commencement of the Works.

b) Fencing You accept that it is your responsibility to ensure that the site is adequately fenced.

c) Storage: You will provide a safe, lockable location for storage of West Coast Sporting Surfaces’ materials and equipment to which West Coast Sporting Surfaces will have access at all times during the period of their mobilisation.

d) Utilities: You will ensure that power and water are available within 30 metres of the area where the courts are to be laid. You will ensure that West Coast Sporting Surfaces have access to existing site amenities for ablutions.

e) Irrigations: You will ensure that all irrigation systems near the area where the courts are to be laid are turned off at least 24 hours before the Works commence, and remain off during the Works to avoid damage to the Goods, delays and additional costs.

f) Existing Sub-base:

• You must ensure that the Sub-base meets industry standards before Works commence.

• Prior to commencing the Works, West Coast Sporting Surfaces may offer such observations of the Sub-base as are possible to be made from visual inspection, but you agree that no observation from West Coast Sporting Surfaces will constitute any representation as to the suitability of the Sub-base or the extent of compliance with industry standards in the preparation of the Sub-base.

• If in the reasonable opinion of West Coast Sporting Surfaces the Sub-base or Asphalt is wholly unsuitable for the application of the Product, West Coast Sporting Surfaces may in its sole discretion decline to perform the Works until the Sub-base and/or Asphalt has been rectified to as to meet industry standards.

3.3. Location of Services

West Coast Sporting Surfaces will perform the Works for you at the location[s] specified at item 2 of the Schedule or as otherwise agreed by the parties in writing.

3.4. Commencement of Works

a) Acrylic surfacing is a temperature-sensitive activity, and the date of commencement of Works will be considered and agreed upon taking into account weather patterns and forecasts. On any given day, works will be carried out only after the minimum required surface temperature is reached, which may impact on the time taken to achieve Practical Completion.

b) West Coast Sporting Surfaces will provide written notice to you of the commencement date, which will be within 30 days from the date of the notice, but will remain subject to weather or other agreed factors.

c) You must notify West Coast Sporting Surfaces of any issues that may prevent the commencement of Works.

d) You will grant West Coast Sporting Surfaces, its employees and contractors access within the Access Times, and where reasonably requested by West Coast Sporting Surfaces.

e) The project must be completed in one mobilisation without interruptions. In the event that this is not possible for any reason other than one for which West Coast Sporting Surfaces is responsible, you will pay to West Coast Sporting Surfaces the additional costs incurred in remaining on site or returning to site in order to complete the Works.

f) If West Coast Sporting Surfaces has mobilised to the Location in order to commence Works, but commencement is delayed for any reasons attributable to you for a period of 4 hours or more, you will pay compensation to West Coast Sporting Surfaces at the rate of $100 per hour per person mobilised until work can commence. For the avoidance of doubt, this compensation is in addition to any remobilisation costs as provided by clause 3.4(d).

3.5. Variations

a) Not less than 14 days prior to the scheduled commencement of Works, you may request a variation to the Scope of Works by providing a written request to West Coast Sporting Surfaces detailing the proposed changes and the reasons for such changes.

b) West Coast Sporting Surfaces will review the request and respond within 7 days. West Coast Sporting Surfaces reserves the right to provide you with a revised quote indicating how (if at all) the variation can be accommodated and the revised cost of the Works if the variation were to proceed.

c) After commencement but before completion of Works, West Coast Sporting Surfaces may, acting reasonably, identify that a variation to the Scope of Works is required for the proper performance of the Works. In such circumstances, West Coast Sporting Surfaces may provide you with a revised quote indicating the variation required and the revised cost of the Works if the variation were to proceed.

d) If you wish to proceed with the revised Scope of Works identified in a revised quote given by West Coast Sporting Surfaces under either clause 3.5(b) or clause 3.5(c), you may do so by accepting the revised quote in writing within 7 days of receipt of it from West Coast Sporting Surfaces. West Coast Sporting Surfaces is not obliged to commence or continue work until you have accepted the revised quote.

e) Upon your acceptance of the revised quote, the Purchase Price and the Scope of Works will be varied in accordance with the revised quote.

f) In the event that you do not wish to proceed with a variation that you proposed to West Coast Sporting Surfaces, you need take no further action and this Agreement will continue without variation.

g) In the event that you do not wish to proceed with a variation identified as required by West Coast Sporting Surfaces under clause 3.5(c) and West Coast Sporting Surfaces forms the view, acting reasonably and in good faith, that the works cannot proceed without the variation, West Coast Sporting Surfaces may terminate this agreement by notice in accordance with clause 9.1(b).

h) In the event of termination under this clause, West Coast Sporting Surfaces will be entitled to payment for Works undertaken up to the date of notice of termination.

3.6. Practical Completion

a) Practical Completion is deemed to occur when in the reasonable opinion of West Coast Sporting Surfaces, the Scope of Works has been completed.

b) West Coast Sporting Surfaces will give written notice to you that Practical Completion has occurred.

4. Invoicing and Payment

4.1. Invoices

West Coast Sporting Surfaces may issue an invoice to you in the amount of the Purchase Price at any time after Practical Completion has occurred.

4.2. Payment of invoices

You must pay the amount set out in any invoice issued in relation to the Works:

a) within 30 Business Days after receipt of the invoice;

b) in full, without deduction or set-off of any kind;

c) in cleared funds;

d) to the bank account nominated by West Coast Sporting Surfaces; and

e) quote the invoice number and any relevant Supplier reference numbers when making such a payment.

4.3. Failure to pay

Without limiting West Coast Sporting Surfaces’ other rights, if you do not pay an invoice by the time specified in clause 4.2, the West Coast Sporting Surfaces may charge interest on the outstanding amount from the date of the invoice until the date of payment at the rate or 6% per annum or at the same rate that the West Coast Sporting Surfaces’ bankers charge West Coast Sporting Surfaces in respect of any line of credit, whichever is the greater.

4.4. GST

a) You and West Coast Sporting Surfaces agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and any other applicable legislation governing GST.

b) If a payment due under this agreement is a reimbursement or indemnification by one party of an expense, loss or liability incurred or to be incurred by the other party, then that payment will exclude any GST forming part of the amount to be reimbursed or indemnified to the extent to which that other party can claim an input tax credit.

c) If West Coast Sporting Surfaces becomes liable for any penalties or interest as a result of late payment of GST due to Your failure to comply with the terms of this clause, you must pay to West Coast Sporting Surfaces on demand an additional amount equal to the amount of those penalties and interest.

d) Each party warrants that it is registered for GST at the time of entering into this contract and will notify the other party if it ceases to be registered for GST.

5. Title and risk

a) Risk in Goods passes to you immediately upon West Coast Sporting Surfaces mobilising to the Location.

b) Title to the Goods remains with West Coast Sporting Surfaces until payment in full of all sums due to West Coast Sporting Surfaces in accordance with clause 4of this Agreement, after which time title passes to you.

c) You grant an irrevocable licence to West Coast Sporting Surfaces or its agent to enter the Location in order to recover possession of Goods pursuant to this paragraph. You indemnify West Coast Sporting Surfaces for any damage to property or personal injury which occurs as a result of West Coast Sporting Surfaces entering the Location.

6. Warranties

6.1. General warranties

Each party warrants to the other party that:

a) it is authorised, and has the legal power and capacity, to enter into and perform this agreement; and

b) this agreement constitutes legal and binding obligations that are enforceable against it in accordance with the provisions of this agreement.

6.2. Your Warranties

You warrant and represent to the West Coast Sporting Surfaces that:

a) you have obtained or will obtain no less than 2 weeks prior to commencement of the Works all necessary environmental, planning and local laws permits and satisfied all legal requirements for the carrying out of the Works at the Location;

b) there are no public utilities (including electricity or telecommunications cabling, water or sewerage pipes or any other form of drainage) present on, or connected to, the Location that may prevent the performance of the Works for any reason;

c) there are no above or below ground conditions at the Location which would be detrimental to the performance of the Product once laid (including but not limited to harmful soil composition, tree and other vegetation roots, rocks, buried debris or water, and public or private utilities, cables, pipes and infrastructure); and

d) you have disclosed all facts and matters to West Coast Sporting Surfaces that a reasonable person would consider material to the performance of the Works.

6.3. West Coast Sporting Surfaces Warranties in relation to Works

West Coast Sporting Surfaces warrants to you that:

a) the Works will conform to the descriptions and specifications set out the Scope of Works; and

b) all Goods will

• • comply with all applicable laws and good industry practice relating to the quality, standards, and manufacture; and
  • be reasonably fit for the Purpose specified in Item 11 of the Schedule

6.4. Manufacturer’s Warranty

Within 7 days of full payment by you of all sums due pursuant to clause 4, West Coast Sporting Surfaces will apply to the manufacturer of the Product for a Manufacturer’s Warranty to be issued to you.

7. Exclusions and Limitations of Liability

7.1. Sub-Base and Asphalt Preparation

You agree that West Coast Sporting Surfaces will not be liable for any issues or Loss of any kind howsoever arising from the condition or preparation of the Sub-base or Asphalt during or after practical completion, including but not limited to:

a) the presence of spores, puffballs and other substances in the soil that may have deleterious effects on the Sub-base, Asphalt or the Goods supplied by West Coast Sporting Surfaces; or

b) cracking to the Product caused by ground heave, subsidence or other movement or deficiency in the Sub-base or Asphalt occurring during or after completion of the Works.

7.2. Damage arising from improper use or maintenance

West Coast Sporting Surfaces is not liable for any Loss or damage to the Goods:

a) where such failure arises whether wholly or in part as a result or consequence of an act or omission of you or any of your employees or agents;

b) to the extent caused whether wholly or in part by your (or any of your employees’ or agents’) failure to comply fully with West Coast Sporting Surfaces’ reasonable instructions in relation to the Goods, including instructions regarding their use, storage and maintenance; or

c) where you significantly modify the Goods without West Coast Sporting Surfaces’ prior written consent, or having received such consent, in a manner which is not in accordance with the West Coast Sporting Surfaces’ instructions.

7.3. Defects

a) If you become aware of and provided written notification to West Coast Sporting Surfaces of an issue that may be a Defect during the Defect Rectification Period, West Coast Sporting Surfaces will use its best endeavours to attend to inspect the issue within 21 days of notification and if possible and acting reasonably and in good faith determine whether the issue amounts to a Defect.

b) West Coast Sporting Surfaces will be liable to rectify at no cost to you, any issues that amount to Defects that occur and are notified to it during the Defect Rectification Period.

7.4. Exclusions and Limitation of Liability

a) To the fullest extent permitted by law, other than as expressly set out in clause 6.3 all warranties and conditions, whether express or implied by statute, common law or otherwise, are excluded.

b) Any advice, recommendation, information, assistance or service given by West Coast Sporting Surfaces in relation to the Goods or the Works or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. West Coast Sporting Surfaces does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.

c) To the fullest extent permissible at Law, other than

• liability arising with respect to Defects within the Defect Rectification Period as provided in clause 7.3; or
• as provided in subclause (d) of this clause,
• in no case shall West Coast Sporting Surfaces, its directors, officers, employees or agents, be liable for any Loss, claim or any direct or indirect, incidental, punitive, special or consequential Loss or damage of any kind including, without limitation, lost profits, lost revenue, lost savings or damages, lost opportunities whether based in contract or tort (including negligence) or restitution or equity or statute or otherwise arising in whatever form from or in connection with the performance of the Works or supply of the Goods.

d) West Coast Sporting Surfaces’ liability for breach of a guarantee conferred by the Australian Consumer Law (the ACL) (under the Competition and Consumer Act 2010 (Cth)), other than those guarantees conferred by sections 51 to 53 of the ACL is limited pursuant to section 64A to the following:

• in the case of goods, to any one of the following as determined by West Coast Sporting Surfaces:
  • the replacement of the goods or the supply of equivalent goods;
  • the repair of the goods;
  • the repayment of the cost of replacing the goods or of acquiring equivalent goods; or
  • the repayment of the cost of having the goods repaired;
• in the case of services, to any one of the following as determined by West Coast Sporting Surfaces:
  • the supplying of the services again; or
  • the payment of the cost of having the services supplied again.

8. Indemnity

a) You indemnity and keep indemnified West Coast Sporting Surfaces, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, you) against West Coast Sporting Surfaces or, for which West Coast Sporting Surfaces is liable, in connection with any Loss arising from or incidental to the provision of Goods or performance of the Works, or the subject matter of this Agreement.

b) This includes, but is not limited to, any legal costs incurred by West Coast Sporting Surfaces in relation to meeting any claim or demand or any party or party legal costs for which the Supplier is liable in connection with any such claim or demand.

c) This provision remains in force after the expiry of the Term or termination of this Agreement.

9. Termination

9.1. Termination for breach

a) Either party can terminate this agreement by written notice to the other party if:

• that other party breaches, materially or otherwise, any provision of this agreement; and either
• a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
• a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
• the entering of a scheme of arrangement (other than for the purpose of restructuring); and
• any assignment for the benefit of creditors; or

b) the other party is subject to:

• a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;
• a receiver, receiver and manager or an administrator under part 5.3A of the Corporations Act 2001 (Cth) being appointed to all or any part of the Customer’s property and undertaking;
• the entering of a scheme of arrangement (other than for the purpose of restructuring); and
• any assignment for the benefit of creditors
• West Coast Sporting Surfaces may terminate this agreement in the circumstances described in clause 3.5(g) of this Agreement by giving you 3 days written notice.

9.2 Termination arrangements

Upon termination of this agreement:

a) each party must promptly return to the other party any materials, equipment and other property, and all related documentation and records (if any), of that other party in its possession, custody or control;

b) You remain liable for and must pay to West Coast Sporting Surfaces:

• the proportion of the Purchase Price representing
  • such of the Works as have been performed or undertaken to the date of termination; and
  • all Goods supplied or which have been consumed in the performance of the Works to the date of termination; and
• any amounts outstanding under any invoices relating to Works completed before the termination date.

10. Force Majeure

a) A party affected by a Force Majeure Event will not have any liability under, or be deemed to be in breach of, this agreement for any delays or failures in performance of this agreement which result from that Force Majeure Event, provided that the party affected by that Force Majeure Event promptly notifies the other party in writing:

• when such circumstances cause a delay or failure in performance; and
• when they cease to do so.

b) If a Force Majeure Event causes a delay or failure in performance of this agreement by a party for a continuous period of more than 3 months, either party may terminate this agreement by written notice to the other party.

11. General Conditions

11.1. Miscellaneous

a) These terms of trade and any Quotes and written variations agreed to in writing by West Coast Sporting Surfaces represent the whole agreement between the parties relating to the subject matter of this Agreement.

b) These terms of trade supersede all oral and written negotiations and communications by and on behalf of either of the parties.

c) In entering into these terms of trade, you have not relied on any warranty, representation or statement, whether oral or written, made by West Coast Sporting Surfaces or any of its employees or agents relating to or in connection with the subject matter of this Agreement.

d) If any provision of this Agreement at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.

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

11.2. Media Use

West Coast Sporting Surfaces may use media associated with the Works on social media and West Coast Sporting Surfaces’ website.

11.3. Notices

a) A notice or other communication to or by a party to this agreement must be:

• in writing addressed to the address or email address of the recipient as shown in the Schedule (or as notified in writing by the recipient to the other party from time to time); and
• signed by the sender or by a director or secretary of the sender.

b) A notice or other communication is taken to have been given (unless otherwise proved) if mailed, on the second Business Day after posting; or if sent by fax or email before 4pm one 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.

11.4. Assignment

Each party acknowledges and agrees that:

a) the rights and duties created by this agreement are personal to the respective parties; and

b) neither party may effect any sale, transfer, assignment, mortgage, charge or any other legal or equitable disposition of any of such rights or duties without the prior written consent of the other party.

11.5. Governing law and jurisdiction

a) This agreement is governed by and must be construed in accordance with the laws of Western Australia.

b) Each party submits to the non-exclusive jurisdiction of the courts of Courts of Western Australia and the courts competent to determine appeals from those courts, with respect to any proceedings which may be brought at any time under or in connection with this agreement.

Acknowledgment and Agreement

I have read, understood, and agree to the terms and conditions outlined in this agreement.