APPLICATION OF TERMS AND CONDITIONS

1. These Terms and Conditions apply to all Quotations issued by White Spot Group.

2. The Client is taken to have accepted these Terms and Conditions and a binding contract is taken to have come into existence if both Parties execute this Agreement.

TERM OF AGREEMENT

3. This Agreement will commence on the Commencement Date.

4. Where the Quotation provides that this Agreement is to be for a fixed Term,

• this Agreement will continue in force until the Expiry Date (unless earlier terminated in accordance with clauses 16, 47 or 48).
• this Agreement will automatically renew at the end of each Agreement Period unless either party gives the other party written notice of termination in accordance with clause 52.

5. This Agreement will otherwise continue in force until such time as:

• (where the Quotation provides that White Spot Group is to provide Services on one or more occasions (but otherwise not on a recurring basis)):

• the Services have been completed; or
• this Agreement is terminated in accordance with clauses 47 or 0.

• (where White Spot Group has been engaged to provide Services on a recurring basis with no fixed end date):

• this Agreement is terminated in accordance with clause 16; or
• this Agreement is terminated in accordance with clauses 47 or 0.

SERVICES

6. White Spot Group will provide the Services to the Client, subject to the provisions of this Agreement.

7. The Parties will agree to the time and place for the performance of the Services.

8. Unless specified otherwise in the Quotation, White Spot Group will supply everything necessary to perform the Services (including, without limitation, equipment and consumables).

9. The Services will be performed by those Personnel of White Spot Group that White Spot Group chooses as being most appropriate to perform the Services, unless otherwise agreed between the Parties in writing.

10. The Client acknowledges and understands that any estimate for the provision or completion of the Services is an estimate only and is not a contractual commitment. Unless otherwise agreed in writing, White Spot Group provides no warranty that any result or objective can or will be achieved or attained at all or by a given completion date.

SECURITY

11. The Client must keep White Spot Group informed of all security procedures in operation at the Site with which it reasonably requires White Spot Group’s Personnel to comply.

12. The Client must provide White Spot Group with any Security Items required to access the Site to perform the Services prior to White Spot Group commencing the Services.

CHARGES

13. In consideration for White Spot Group performing the Services in accordance with this Agreement, the Client will pay White Spot Group the Charges.

14. Where White Spot Group’s charges are based on an hourly rate, any time spent which is less than an hour is charged on a pro-rated basis.

15. Unless stated otherwise in the Quotation, the Client acknowledges that the Charges are exclusive of GST. The Client must pay GST on any taxable supply made by White Spot Group to the Client under this Agreement.

16. White Spot Group may increase the Charges by giving ninety (90) days' written notice to take effect on the next due invoice after that period. If the Client does not agree with the increase to the Charges, the Client may elect to terminate this Agreement by giving sixty (60) days' notice in writing following written notification of intent to increase the Charges.

PAYMENT TERMS

17. Unless stated otherwise in the Quotation, the terms of payment are strictly cash on delivery.

18. Payment shall be made by way of electronic funds transfer into the bank account nominated by White Spot Group’s invoice (or by any other payment method accepted by White Spot Group from time to time). If White Spot Group agrees to accept payment by way of credit card, the Client acknowledges that White Spot Group shall be at liberty to charge a surcharge for credit card transactions equal to White Spot Group’s costs of processing such transactions.

19. The Client must check all invoices and advise White Spot Group of any errors or omissions within seven (7) days of receipt. Failing advice from the Client that the invoice contains any errors or omissions, the invoice may be deemed accepted by White Spot Group.

20. Any sums owed to White Spot Group by the Client under this Agreement will be made free of any set-off, or counterclaim, and without deduction or withholding, unless agreed to otherwise by the Parties in writing or as required by law.

21. If the Client fails to make payment of White Spot Group’s invoice by the date stated in the invoice, White Spot Group is entitled to do any or all of the following:

• charge interest on the outstanding amount at the rate of ten (10) percent per annum (which interest will accrue and will be recoverable for each day or part thereof that the debt remains outstanding);

• require the Client to pay, in advance, for any Services (or any part of the Services); and
• suspend performance of the Services (or any part of the Services).

COMPLAINTS

22. Any complaint about the performance of the Services must be made in writing to White Spot Group within two (2) business days of the occurrence.

23. White Spot Group will take reasonable action, at no cost to the Client, to investigate and (unless it reasonably considers that the complaint was not justified) take reasonable remedial action.

24. In the absence of any complaint, it will be assumed that the Client is satisfied with White Spot Group’s performance of the Services.

25. Nothing in clauses 22 to 24, will act so as to waive or limit any right or remedy either Party may have under this Agreement or as may be provided by applicable law.

VARIATIONS

26. White Spot Group acknowledges and agrees that:

• it must not vary the Services without the Client’s prior written consent;
• all Variations must be agreed to by the Client; and
• the Client will not be required to pay for any Variation where the Variation has not been agreed to by the Client.

27. The Client may from time to time give White Spot Group a written or verbal direction to carry out a Variation of the Services, in which case White Spot Group must carry out such Variation within the timeframe agreed between the Parties in writing.

28. If the Client directs White Spot Group to carry out a Variation of the Services in accordance with clause 27, White Spot Group shall be entitled to vary the Charges, in which case the Charges will be adjusted as follows:

• if the Parties have agreed upon an amount for the Variation, by that amount; or
• if the Variation results in an increase to the Charges, the reasonable value of the Variation (including a reasonable allowance for profit and overheads) having regard to the pricing set out in the Quotation.

29. Unless provided for in the Quotation, the rate or price for each Variation must be determined before the Variation is effected.

WHITE SPOT GROUP’S WARRANTIES

30. White Spot Group represents and warrants that to the Client that the Services:

• will be carried out in accordance with this Agreement and to the reasonable satisfaction of the Client;
• will be performed in a proper and professional manner in accordance with generally accepted industry standards; and
• will be performed by appropriately qualified, competent, and skilled Personnel (including adequate supervision) of White Spot Group.

CLIENT’S OBLIGATIONS

31. During the continuance of this Agreement, the Client shall:

• cooperate with White Spot Group (and its Personnel) as White Spot Group reasonably requires to perform the Services; and
• provide such information that White Spot Group reasonably requires to perform the Services.

32. The Client must, on each occasion the Services are to be performed, give White Spot Group sufficient access to, and possession of, the Site (or enough of the Site) to enable White Spot Group to perform the Services.

33. Where requested by White Spot Group, the Client must provide adequate and secure space at the Site for the storage of White Spot Group’s equipment and consumables.

WORK HEALTH AND SAFETY

34. The Client represents and warrants that the Site:

• is safe for work; and
• complies with all work health and safety requirements at law.

35. The Client acknowledges that White Spot Group may suspend the performance of the Services if White Spot Group, in its sole discretion, acting reasonably, considers that the Site (or any part of the Site) may expose White Spot Group’s Personnel to undue risk or danger.

INSURANCE

36. White Spot Group must effect all insurance required to be effected by law including worker's compensation insurance for White Spot Group and its Personnel, and public liability insurance that White Spot Group considers appropriate.

INDEMNITY

37. The Client agrees to hold harmless and indemnify White Spot Group and White Spot Group’s Personnel (for each of whom White Spot Group holds the benefit of this indemnity upon trust), and must keep each of the abovenamed persons indemnified from any Loss or Claim directly or indirectly arising out of, or relating to:

• the Client’s breach of this Agreement; and
• any negligent, fraudulent, or criminal act or omission of the Client (or the Client’s Personnel).

38. The Client’s liability to indemnify White Spot Group will be reduced proportionally to the extent only that any negligent act or omission by White Spot Group or a breach of White Spot Group’s obligations under this Agreement has contributed to the Loss or Claim which is the subject of the indemnity.

39. It is not necessary for White Spot Group to incur any expense or make any payment before enforcing its rights of indemnity conferred by this Agreement.

40. The Client’s liability to indemnify White Spot Group is a continuing obligation separate and independent from the Client’s other obligations and survives the termination or expiry of this Agreement.

LIMITATION OF LIABILITY

41. In relation to the supply of Services, to the fullest extent permitted by law, White Spot Group’s liability to the Client for any loss, damage, or injury, whether under contract, in tort (including negligence), pursuant to statute or otherwise, is limited to, at White Spot Group’s discretion, to any one or more of the following:

• the supply of the Services again; or
• providing for the cost of having the Services supplied again.

42. For the avoidance of any doubt, except in the case of death or personal injury caused by White Spot Group’s negligence, the liability of White Spot Group under or in connection with this Agreement, howsoever arising, whether under contract, in tort (including negligence), pursuant to statute or otherwise, will not exceed the Charges paid by the Client to White Spot Group under this Agreement.

43. To the maximum extent permitted by law, in no circumstances will either Party be liable to the other Party for any Consequential Loss arising out of or in connection with this Agreement, including any breach by White Spot Group of this Agreement, howsoever arising, whether under contract, in tort (including negligence), pursuant to statute or otherwise.

44. White Spot Group shall have no liability to the Client for any loss or damage to the property of the Client, except to the extent that the loss or damage is proven to have been caused by White Spot Group’s Personnel’s negligence.

45. All terms, conditions, warranties, indemnities, and statements (whether express, implied, written, oral, collateral, statutory, or otherwise) which are not expressly set out in this Agreement are hereby expressly excluded and, to the extent they cannot be excluded, White Spot Group disclaims all liability in relation to them.

46. Nothing in this Agreement shall be read or applied so as to purport to exclude, restrict, or modify or have the effect of excluding, restricting, or modifying the application any relevant State or Federal Legislation which by law cannot be excluded, restricted, or modified.

TERMINATION

47. White Spot Group may terminate this Agreement in whole or in part by notice in writing:

1. for convenience, by giving the Client not less than thirty (30) days' written notice;
2. immediately, if the Client breaches this Agreement and such breach is not remedied within fourteen (14) days of written notice by White Spot Group; or
3. immediately, if the Client (or its Personnel) infringes any law in connection with the performance of this Agreement.

48. The Client may terminate this Agreement in whole or in part by notice in writing:

1. for convenience, by giving White Spot Group not less than thirty (30) days' written notice, fail to provide notification within this clause, then without prejudice to any other rights of White Spot Group, the Client agrees to pay

1. White Spot Group an administration charge calculated as an amount equal to 10% of the annual Charges; and

• any reasonable costs in connection with any losses associated with third party agreements (e.g. services which White Spot Group were providing, through this Agreement).

2. immediately, if White Spot Group breaches this Agreement and fails to remedy such breach within fourteen (14) days of written notice by the Client; or

3. immediately, if White Spot Group (or its Personnel) infringes any law in connection with the performance of this Agreement.

49. If the Client terminates this Agreement under clause 0, the Client shall be liable to pay White Spot Group reasonable compensation on a pro-rated basis equal to the agreed Charges apportioned to the Services already rendered by White Spot Group (together with all costs and expenses incurred by White Spot Group as a result of the termination) up until and including the date of termination.

50. Upon the termination or expiry of this Agreement, White Spot Group shall return to the Client all Security Items in its possession as soon as reasonably practicable.

51. For the avoidance of doubt, termination of this Agreement will not affect the rights and remedies which have already accrued to a Party at the time of termination, whether under this Agreement or otherwise.

NOTICES

52. A notice or other communication connected with this Agreement has no legal effect unless it is in writing. In addition to any other method of service provided by law, a notice or other communication may be sent be pre-paid post to the address of the addressee as set out in this Agreement, or sent by email or fax to the email or fax number of the addressee.

RELATIONSHIP BETWEEN THE PARTIES

53. White Spot Group shall perform its obligations under this Agreement as an independent contractor. Nothing in this Agreement is to be construed as creating a relationship of employment, joint venture, agency, or partnership.

CONFIDENTIALITY

54. Each Party must not:

1. use the other Party’s Confidential Information other than as strictly necessary to undertake its obligations under this Agreement;
2. directly or indirectly, disclose to any other person, or exploit, the other Party’s Confidential Information other than with the prior written approval of that Party,

except to the extent that:

3. disclosure is permitted by the express terms of this Agreement;
4. the information is available to the public generally (except as a result of a previous breach of this clause);
5. the Party is required to make the disclosure by operation of law; or
6. the disclosure is made on a confidential basis to the representatives or professional advisers of the Party for the purpose of obtaining professional advice.

55. Clause 54 survives the termination or expiry of this Agreement.

FORCE MAJEURE

56. In the event that a Party is prevented from performing or is unable to perform any of its obligations under, or in connection with, this Agreement (other than a payment obligation) due to any act of God, acts, decrees, or regulations of governmental authorities, casualty, fire, storm, flood, earthquake, war, strike, lockout, civil commotion, industrial action, disease or epidemic, destruction of facilities, riot, insurrection, materials or goods unavailability, equipment or mechanical breakdown, or any other cause beyond the reasonable control of the Party invoking this section (each, a “Force Majeure Event”), and if such Party shall have used its commercially reasonable efforts to mitigate its effects, and provided such Party gives prompt written notice to the other Party as soon as it becomes aware of the Force Majeure Event, its delay or failure to perform shall be excused, and the time for the performance shall be extended for the period of the delay or inability to perform due to such Force Majeure Event.

57. In the event that either Party’s performance is prevented or delayed by a Force Majeure Event for a period of fourteen (14) days or more after such Force Majeure Event, the other Party may either:

1. agree to an extension of the time for performance; or
2. terminate the Agreement (to be effective immediately) by providing written notice to Party affected by the Force Majeure Event.

COSTS

58. Each Party must pay for its own legal, accounting, and business costs relating to the preparation and negotiation of this Agreement.

59. The Client will pay White Spot Group’s costs and disbursements incurred in pursuing any Claim against the Client under, or in connection with, this Agreement, including collection costs, debt recovery fees, and legal costs on an indemnity basis.

SUBCONTRACTING

60. White Spot Group may engage other Subcontractors to carry out any part of the Services with or without the Client’s prior consent but is not relieved from its obligations under this Agreement.

ASSIGNMENT

61. Neither Party may assign, pledge, or transfer its interest under this Agreement, or any right or obligation hereunder, without the prior written consent of the other Party (which shall not be unreasonably withheld).

VARIATION

62. No variation of this Agreement shall be effective unless in writing, signed by the Parties. Numerical errors or clerical errors (such as spelling mistakes or grammatical errors) may be subject to correction by White Spot Group without notification.

WRITTEN WAIVER

63. A waiver of any provision or breach of this Agreement shall only be effective if made by the affected Party in writing. If a Party elects not to enforce its rights arising as a result of a breach of this Agreement, that will not constitute a waiver of any rights in relation to any subsequent or other breach.

SEVERANCE

64. If any part of this Agreement is not enforceable in accordance with its terms, other provisions which are self-sustaining are, and continue to be, enforceable in accordance with their terms. If any part of this Agreement is invalid or unenforceable, that part is deleted and the remainder of this Agreement remains effective.

GOVERNING LAW

65. This Agreement will be governed by the laws of the state or territory in which the Services are performed, and the laws of the Commonwealth of Australia which are in force in that state or territory.

ENTIRE AGREEMENT

66. This Agreement constitutes the entire agreement between the Parties relating in any way to its subject matter, unless otherwise agreed between the Parties in writing. All previous negotiations, understandings, representations, warranties, memoranda, or commitments about the subject matter of this Agreement are merged herein and are of no further effect. For the avoidance of any doubt, the only terms binding on White Spot Group are those contained herein or otherwise agreed to in writing by the Parties and those, if any, which are imposed and which cannot be excluded by law.

DEFINITIONS

67. In these Terms and Conditions:

1. Agreement means the Quotation and these Terms and Conditions. ‍
2. Charges means the charges set out in the Quotation, based on or calculated in the manner set out in the Quotation. ‍‍
3. ‍Claim means a claim, notice, demand, action, proceeding, litigation, investigation, judgment, or award, howsoever arising, whether present, unascertained, immediate, future, or contingent, whether based in contract, tort, pursuant to statute, or otherwise and whether involving the Client or a third-party. ‍
4. Client means the person, corporation, firm, partnership, governmental body, or other entity to whom White Spot Group has agreed to provide Services, as described in the Quotation. ‍
5. Commencement Date means the date the last Party executes this Agreement. ‍
6. Confidential Information means:

1. the terms of this Agreement and all negotiations leading to its formation;
2. all information in any form disclosed or made available by a Party that:

1. is by its nature (or the circumstances in which it is disclosed) confidential;
2. is designated by a Party to be confidential; or
3. a Party knows or ought reasonably to know is confidential,

including, without limitation, confidential information relating to either Party’s business not in the public domain, including trade secrets, industrial practices, know-how, scientific, technical, product, market, or pricing information.

(e) Consequential Loss means indirect, economic, special, or consequential loss or damage not arising as a natural consequence of a breach or other event giving rise to liability of a Party and includes, but is not limited to, any loss of actual or anticipated profit or revenue, loss of contract, loss of opportunity, loss of business, loss of data, or loss of goodwill.

7. Expiry Date means the date this Agreement expires (where specified in the Quotation). ‍
8. GST means GST as that term is defined in the GST law. ‍
9. GST law means A New System (Goods and Services Tax) Act 1999 (Cth) and any rulings and regulations made thereunder. ‍
10. Loss means any damage, loss, liability, cost, charge, expense, penalty, outgoing, or payment (whether direct or indirect, consequential, or incidental) and includes collection agency costs, debt recovery fees, and legal costs and expenses on a full indemnity basis. ‍
11. Goods means all goods supplied by White Spot Group in connection with this Agreement. ‍
12. Parties means White Spot Group and the Client, and Party means either one of them. ‍
13. Personnel means officers, employees, agents, and contractors engaged by each Party (but does not include the other Party) and, in the case of White Spot Group, includes its Subcontractors (and any employee of those Subcontractors (where applicable)). ‍
14. Security Items means any keys, access cards, remotes, or anything else required by White Spot Group to access the Site. ‍
15. Services means the cleaning, gardening, facility management, and/or other services to be provided by White Spot Group under this Agreement, as described in the Quotation (and where the context permits shall include the supply of any Goods). ‍
16. Site means the location or premises where the Services are to be performed, as described in the Quotation. ‍
17. Subcontractor means an independent contractor, which is suitably qualified to perform the Services, and has been engaged by White Spot Group in performance of the Services. ‍
18. Term means the term of this Agreement (where applicable). ‍
19. Terms and Conditions means these terms and conditions. ‍
20. Quotation means the written document issued by White Spot Group to the Client for the supply of Services (together with any documents attached to the quotation). ‍
21. Variation means a variation in the scope of the Services. ‍
22. White Spot Group means White Spot Group Pty Ltd ACN 168 312 043.

INTERPRETATION

68. Unless the contrary intention appears, a reference to:

1. this Agreement or another document includes any variation or replacement of it, notwithstanding any change in the identity of the Parties;
2. person, firm, corporation, association, or government body includes any other of them;
3. one gender includes all other genders;
4. the singular includes the plural and vice versa;
5. a right includes a benefit, remedy, authority, discretion, or power; and
6. any statute, ordinance, code, or other law includes regulations and other statutory instruments under any of them and consolidations, amendments, re-enactments, or replacement of any of them.

69. Headings are for convenience only and shall not affect the interpretation of this Agreement.

70. Examples given are non-exhaustive and exist for illustrative purposes only.

71. Where two or more persons are defined as a Party to this Agreement, this Agreement shall apply to each of them severally and all of them jointly.

72. Unless specified otherwise, all reference to sums of money shall be in terms of Australian currency (AUD), and all communications shall be in the English language.

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