Terms & Conditions

Allcranes & Equipment Inspections Pty Ltd

All services provided by Allcranes & Equipment Inspections Pty Ltd (All Cranes) will be undertaken in accordance with these Terms and Conditions (Contract).

The Contract comprises the entire understanding and agreement between the parties as to the subject matter of the Contract and all previous agreements, negotiations, warranties, understandings or representations, express or implied, in relation to the Project (except those required by law) are superseded by the Contract and have no effect, and no Party shall be liable to the other Party in respect of same.

The Contract comes into effect on the earlier of the date: (1) the Client signing the Contract; or (2) the Client communicating acceptance of the Contract; or (3) the Client directing Allcranes to provide services under the Contract, notwithstanding the Contract has not been signed by either Party.

The Client may wish to engage All Cranes from time to time on various projects in which it is involved, and All Cranes has agreed to undertake works as required by the Client.

The Parties agree that this Contract shall apply to all services requested by the Client until terminated pursuant to Clause 14 or 15.

1. Definitions

Approvals means certificates, licences, consents, permits, approvals and requirements made or authorised by a Commonwealth, State, Territory or local government, or by a Legislative Requirement.

Client means the person identified on page 1.

Client Information means all information supplied to Allcranes in a Document for the purposes of this Contract.

Consequential Loss means any loss of income, loss of revenue, loss of profit, loss of financial opportunity, loss of business or loss of business opportunity, loss of contract, loss of goodwill, loss of use, loss of production or failure to realise anticipated savings (whether the loss is direct or indirect).

CraneSafe Assessment Program means the program developed for crane owners and suppliers for third party visual assessment of the condition of material components of their cranes, that contribute to the safety of their cranes. It provides a process for third party assessment of the safety aspects of cranes that complies with the requirements of Parts 1, 3, 4, 5, 11, 19 and 20 of AS 2550.10—2006 Cranes, hoists and winches—Safe use.

CraneSafe Green Sticker means a certificate that Allcranes will provide to the Client following the Equipment satisfying the assessment checklist required by the Cranesafe Assessment Program.

Direction means any approval, assessment, authorisation, decision, determination, explanation, instruction, order, permission, rejection, request or requirement given or made by the Client.

Documents includes information stored by electronic and other means.

Equipment means the equipment identified in this Contract - Purchase Order or the equipment requested to be inspected by the Client.

Fee or Fees means the money payable under this Contract for the performance of the Services as adjusted in accordance with this Contract and further detailed in the Pricing Notes section.

Legislative Requirements means legislation and subordinate legislation of the Commonwealth of Australia or the State or Territory applicable to the Services, and any instruments made under such legislation or subordinate legislation.

Liability means any legal liability or obligation (whether actual, contingent or prospective) including:

(a) irrespective of when the acts, events or things giving rise to the liability or obligation occurred; and

(b) any liability to Personnel onsite.

Loss includes any loss, damage, cost, charge liability (including tax liability) or expense (including legal costs and expenses).

Overseas Recipient means any person or entity located outside Australia to whom Personal Information is disclosed.

Party means either the Client or Allcranes. Parties mean both the Client and Allcranes.

Personal Information has the meaning given in the Privacy Act 1988 (Cth).

Contract means this document.

Scope is described in Section B – Scope of Works (as varied from time to time in accordance with this Contract).

Services means the services described in or reasonably inferred from the scope of works.

Variation means a change to the Services whether or not it is a change to the scope.

2. Insurance

Allcranes must effect a professional indemnity insurance policy covering Allcranes’s legal liability arising from an error, act or omission in relation to the performance of its professional activities in connection with the Services, with a limit of liability per claim of not less than the amount specified in Item 5 of Schedule 1 for any one claim and in the aggregate.

The Client and Allcranes must each effect public liability insurance against liability to third parties for loss or damage to property and death or injury to any person, with a per occurrence limit of not less than $20 million.

Allcranes shall ensure that its public liability insurance covers:

(a) any liability for loss or damage to the Equipment during any period for which it directs the operation of Equipment; and

(b) liability to third parties for loss or damage to property (including loss of use thereof) and death of or injury to any person arising out of or resulting from the use or operation of the Equipment where the loss, damage, injury or death is due to Allcranes’s act, default or omission.

The Client and Allcranes must each effect and maintain Workers Compensation insurance in accordance with Legislative Requirements.

Whenever requested in writing by a Party, the other Party must provide a certificate of currency in respect of each insurance policy required to be effected by the other Party under clause 3, showing:

(a) the insurance policy numbers;

(b) the expiry date of each policy; and

(c) the amount of insurance cover required to be held under this Contract.

3. Indemnity

To the extent permitted by law, each Party indemnifies the other from and against all Liability and Loss, due to:

(a) loss of, damage to, or destruction of any property; or

(b) personal injury (including psychological injury) or death;

arising out of its breach of this Contract or its negligent or unlawful act or omission (including by its officers, employees or agents).

Clause 4.1 does not apply to the extent that:

(a) the Party seeking indemnification in relation to any Liability or Loss, caused or contributed to such Liability or Loss, by its act or omission.

4. Information

The Client must promptly provide Allcranes with Client Information sufficient to enable Allcranes to perform the Services.

5. Directions

The Client must give Allcranes Directions necessary for the performance of the Services in a timely manner.

Allcranes must comply with all Directions given under this Contract.

If Allcranes in writing requests the Client to confirm an oral direction, Allcranes is not bound to comply with the Direction until the Client confirms it in writing.

6. Variations

The Client may direct Allcranes to perform a Variation. All such Directions must be in writing and specify that they direct a Variation.

If Allcranes considers any Direction requires a Variation but the Direction is not in writing or does not specify that it directs a Variation, then Allcranes must promptly notify the Client in writing setting out why Allcranes considers the Direction requires a Variation. In that case Allcranes must not comply with the Direction unless Allcranes receives a written:

(a) Direction specifying a Variation; or

(b) notice that the Client disagrees that the Direction is a Variation, stating its reasons.

If a notice is issued under clause 7.2(b), Allcranes must comply with the Direction but may, within 20 Business Days, dispute the Client’s notice under clause 7.2(b) by notice given under clause 13.

The Fee must be adjusted for each variation. Unless the amount of the adjustment is agreed, the adjustment must be calculated by the Client on the basis of applicable rates or fees in this Contract or, if none, then reasonable rates or fees.

Allcranes is not obliged to perform a variation that is outside the general Scope of the Services.

7. GST

If the Fee is stated to be GST exclusive, the Client must pay the Fee plus the applicable GST.

8. Law and Approvals

Each Party must comply with all Legislative Requirements and Approvals in relation to their respective obligations under this Contract.

9. Limitation of liability

The Liability of Allcranes to the Client arising under or in connection with this Contract including:

(a) in tort (including for negligence);

(b) under statute; or

(c) otherwise,

to the extent permitted by law, is limited in the aggregate to the amount of $5 million.

To the maximum extent permitted by law, neither Party will be liable to the other Party for any Consequential Loss suffered or incurred by the other Party under or in connection with this Contract, whether arising in contract, tort (including negligence), equity, statute, implied duties or on any other basis.

Clause 10.1 and 10.2 does not limit Allcranes’ liability:

(a) in respect of any Liability that:

(i) cannot be limited at Law; or

(ii) is due to Allcranes’ fraud, wilful misconduct or criminal

conduct.

All Cranes will not be liable for any claim for damages arising from or in relation to delay in providing the Services where the delay is not caused or contributed to by the All Crane’s breach of the Contract.

10. Confidentiality

The Parties must treat this Contract as confidential and all other information which, by its nature, is confidential or which the parties ought reasonably to know is confidential.

The obligation of confidentiality does not apply to the extent:

(a) the information is in the public domain otherwise than as a result of a breach of this Contract;

(b) disclosure is required by law;

(c) disclosure is necessary to procure goods or services in connection with the Services, provided that the recipient of the information is also subject to an obligation of confidentiality; or

(d) disclosure is agreed in writing by the parties.

11. Severability

If anything in this Contract is unenforceable, illegal or void then it is severed and the rest of this Contract remains in force.

12. Dispute Resolution

If a dispute between the parties arises in connection with this Contract, then either Party may give the other Party a written notice of the dispute, adequately identifying and providing details of the dispute.

Notwithstanding the existence of a dispute in relation to any matter other than the exercise of a right to terminate this Contract, the parties must continue to perform the Contract unless permitted to suspend performance under this Contract.

Within 10 Business Days after service of a notice of dispute, the parties must confer at least once to resolve the dispute or to agree on methods of doing so. Each Party must be represented by a person having authority to agree to such resolution or methods of resolution. All conferences under this clause 13.3 must be conducted in good faith and without prejudice.

If the dispute has not been resolved within 20 business days of service of the notice of dispute, either Party may commence legal proceedings or, if agreed in writing by the parties, commence alternative dispute resolution proceedings.

13. Amendment

This Contract may only be amended in writing where that amendment is executed by both Parties.

14. Governing Law and Jurisdiction

This Contract and, to the extent permitted by law, all related matters including non- contractual matters are governed by the laws of the State of Victoria. In relation to such matters each Party irrevocably accepts the non-exclusive jurisdiction of courts with jurisdiction there and waives any right to object to the venue on any ground.

15. Disclosure of Personal Information

Compliance with Privacy Laws

The Parties agree to comply with all applicable privacy laws, including the Privacy Act 1988 (Cth) and the Australian Privacy Principles, in relation to the collection, use, storage, and disclosure of Personal Information.

Cross-Border Disclosure

Allcranes may disclose Personal Information to an Overseas Recipient only if:

(a) All cranes has taken reasonable steps to ensure that the Overseas Recipient complies with privacy obligations equivalent to the Australian Privacy Principles; or

(b) The individual to whom the Personal Information relates has provided explicit consent, after being expressly informed that the information may be disclosed to an Overseas Recipient who may not be subject to equivalent privacy laws.

The Allcranes must ensure that any Overseas Recipient agrees to:

(a) Handle the Personal Information in a manner consistent with the Australian Privacy Principles; and

(b) Implement appropriate technical and organizational measures to protect the Personal Information against unauthorized access, loss, or disclosure.

16. Consent to Collection

The Client expressly consents to Allcranes collecting Personal Information about the Client from third parties, including but not limited to the Crane Industry Council of Australia and CraneSafe, where such collection is necessary for the purposes of fulfilling contractual obligations between the Client and Allcranes.

Scope of Collection

The Client agrees that any Personal Information collected from third parties will:

Be relevant to the stated purposes of collection;

(a) Be collected in a manner that is lawful, fair, and not unreasonably intrusive; and

(b) Be used, stored, and disclosed in accordance with the Privacy Act 1988 (Cth) and the APPs.

17. Right to Withdraw Consent

The Client acknowledges that it has the right to withdraw this consent at any time by providing written notice to Allcranes. Upon receipt of such notice, Allcranes must cease collecting Personal Information from third parties, except as required or authorised by law.

18. Use and Disclosure of Information

Allcranes agrees to use and disclose any Personal Information collected under this clause only for the purposes stated in this Contract, unless otherwise required or authorised by law.

19. Termination Without Cause

19.1. This Services Agreement may be terminated:

(a) at any time by the Client after giving reasonable written notice to the Consultant.

19.2. If this Services Agreement is terminated under clause 19.1, the Client must pay to the Consultant:

(a) the applicable portion of the Fee for the Services performed prior to the date of termination;

(b) all disbursements incurred by the Consultant prior to the date of the termination which would have been payable had this Services Agreement not been terminated; and

(c) any costs and expenses reasonably incurred by the Consultant by reason of termination.

20. Termination due to default by either Party

If either Party commits a substantial breach of this agreement, the other Party may:

(a) give to the Party who committed the breach a written notice to show cause;

(b) specify the alleged breach with reasonable details;

(c) require the Party who committed the breach to show cause in writing why the Party giving the notice should not exercise a right referred to in this clause 16; and

(d) specify a date (which must not be less than 5 Business Days after the notice is served) by which the Party who committed the breach must show cause.

Substantial breaches include but are not limited to:

(a) failure to provide evidence of insurance;

(b) failure of the Client to pay the Consultant in accordance with Clause 5.

If the recipient of a notice to show cause fails to show reasonable cause:

(a) The other Party may terminate this Agreement; or

(b) If the breach is a failure of the Client to pay the Consultant under clause 5, the Consultant may suspend performance of the Services until payment is made.

If the consultant suspends performance of this agreement under clause 16.3(b), The Consultant must promptly lift the suspension after the Client remedies the breach, unless the consultant has terminated the Services Agreement.