General Terms

These General Terms (together with the Key Terms and the Consulting Services Scope & Estimate) form the Agreement between SafetyJourney Pty Ltd (ABN 44 169 395 797) of 2/766-772 Elizabeth Street, Melbourne, Vic 3000, Australia and the Customer (Client), whose name and details appear in the Key Terms and the Consulting Work Scope & Estimate.

1. Definitions and Interpretation

1.1 Definitions

In these terms:

Additional Charge means a charge in accordance with the Consultant’s standard rates in effect from time to time;

Agreement means these General Terms together with the Key Terms and the Consulting Services Scope & Estimate for the provision of consultancy services;

Charges means the charges payable the Customer to the Consultant pursuant to this Agreement;

Confidential Information means the confidential information of a Party which relates to the subject matter of this Agreement and includes:

(a) confidential information relating to the Customer or the Customer’s clientele;

(b) information relating to the personnel, policies, materials or business strategies of the Consultant;

Consultant includes the officers, employees, agents and sub-contractors of the Party so specified in this Agreement;

Commencement Date means the date of execution of the Agreement;

Force Majeure means a circumstance beyond the reasonable control of the Parties which results in a Party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to:

(a) acts of God, lightning strikes, pandemics and epidemics, earthquakes, floods, storms, explosions, fires and any natural disaster;

(b) acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage and revolution; and

Intellectual Property Rights means any copyright, trade mark, design, patent, and includes the Consultant’s Confidential Information;

Materials means the materials used by the Consultant in providing Services pursuant to this Agreement and form part of the Consultant’s Confidential Information;

Party means either the Consultant or the Customer as the context dictates;

Restraint Period means the period, specified in the Key Terms, during which a Party must refrain from soliciting or employing any person who is employed or contracted by the other;

Services means the services to be provided by the Consultant as specified in the Consulting Services Scope & Estimate.

1.2 Interpretation

In this Agreement, unless the context requires otherwise:

(a) the singular includes the plural and vice versa;

(b) a gender includes the other genders;

(c) the index (if any) and the headings are used for convenience only and do not affect the interpretation of this Agreement;

(d) a reference to a thing includes a reference to a part of that thing;

(e) a reference to a document includes the document as modified from time to time and any document replacing it;

(f) if something is to be done on a day which is not a Business Day then that thing must be done on the next or following Business Day;

(g) the word “person” includes a natural person and any body or entity whether incorporated or not;

(h) the word “month” means calendar month and the word “year” means twelve months;

(i) the words “in writing” include any communication sent by letter, telex, facsimile transmission, or telegram;

(j) a reference to any statute, proclamation, rule, regulation or ordinance includes any amendments, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, regulation or ordinance replacing it. A reference to a specified section, clause, paragraph, schedule or item of any statute, proclamation, rule, regulation or ordinance means a reference to the equivalent section of the statute, proclamation, rule, regulation or ordinance which is for the time being in force;

(k) money amounts are stated in Australian currency unless otherwise specified; and

(l) a reference to any agency or body, if that agency or body ceases to exist or is reconstituted renamed or replaced or has its powers or functions removed (“defunct body”), means the agency or body which performs most closely the functions of the defunct body.

2. Services

(a) The Consultant shall provide the Services on the terms set out in the Agreement.

(b) Subject to otherwise complying with its obligations under this Agreement, the Consultant shall exercise its independent discretion as to the most appropriate and effective manner of providing the Services and of satisfying the Customer’s expectations of those Services.

3. Lawful Directions

(a) In the discharge of its duties, the Consultant shall comply with all reasonable resolutions, regulations and directions of the Customer as may lawfully be given from time to time as to the nature and scope of the Services to be provided.

(b) Nothing in clause 3(a) shall affect the Consultant’s right to exercise its own judgement and to utilise its skills as it considers most appropriate in order to achieve compliance with the said resolutions, regulations and directions or otherwise to comply with its obligations under this Agreement.

4. Availability of Services

(a) Subject to compliance with security requirements and access restrictions imposed by the Customer, the Consultant may provide its Services during such hours and on such days as it considers necessary and appropriate to ensure compliance with its obligations under this Agreement.

(b) The Consultant does not warrant that it will be capable of attending the Customer’s premises or of providing the Services at specific times requested by the Customer during the term of this Agreement, except to the extent prescribed in the Consulting Services Scope & Estimate.

5. Access

(a) The Customer shall, where relevant, ensure the Consultant has full and safe access to the Customer’s premises (to the extent relevant to this Agreement) and any necessary equipment, materials and information. The Customer shall also ensure that the Consultant is provided with all facilities, services and accessories (and without limiting the generality thereof a work station, network and internet connection) reasonably required to enable the Consultant to comply with its obligations under this Agreement.

(b) The Customer shall, where relevant, provide on request a suitably qualified or informed representative, agent or employee to accompany the Consultant and to advise the Consultant on project requirements, access, security procedures and any other matter within the Customer’s knowledge or control which will assist the Consultant in complying with its obligations under this Agreement.

(c) The Customer warrants that it complies with all applicable health and safety workplace legislation rules or regulations in relation to its premises.

6. Consultant’s Status and Obligations

(a) The Consultant is an independent contractor without authority to bind the Customer by contract or otherwise and neither the Consultant nor the Consultant’s personnel are agents or employees of the Customer by virtue of this Agreement.

(b) The Consultant acknowledges it has a sole responsibility in relation to payment, if any, of superannuation, workers’ compensation and taxes incidental to employment in respect of its own personnel. The Consultant further acknowledges that neither it nor its personnel have, pursuant to this Agreement, any entitlement from the Customer in relation to any form of employment or related benefit.

(c) For the duration of this Agreement the Consultant must maintain public liability insurance in respect of the Consultant and any employees or sub-contract of the Consultant with no less than AUD$10 million coverage per event.

7. Charges

(a) The Customer shall pay the Charges as stipulated in the Consulting Services Scope & Estimate.

(b) Charges shall be paid in full within 14 days of receipt of invoice.

(b) If the Customer disputes the whole or any portion of the amount claimed in an invoice submitted by the Consultant, the Customer shall pay the portion of the amount stated in the invoice which is not in dispute and shall notify the Consultant in writing (within 7 days of receipt of the invoice) of the reasons for disputing the remainder of the invoice. If it is resolved that some or all of the amount in dispute ought properly to have been paid at the time it was first invoiced, then the Customer shall pay the amount finally resolved together with interest on that amount in accordance with the terms of payment set out in this Agreement.

8. Confidentiality

(a) A Party shall not, without the prior written approval of the other Party, disclose the other Party’s Confidential Information.

(b) A Party shall not be in breach of clause 9(a) in circumstances where it is legally compelled to disclose the other Party’s Confidential Information.

(c) Each Party shall take all reasonable steps to ensure that its employees and agents, and any sub-consultants engaged for the purposes of this Agreement, do not make public or disclose the other Party’s Confidential Information.

(d) A Party may at any time require the other Party to arrange for its employees, agents or sub-consultants engaged in the performance of this Agreement to execute a suitable confidentiality deed. The Party shall arrange for all such deeds to be executed within the timeframe reasonably proposed by the Party that has issued them.

(e) Each Party shall on demand return to the other Party any documents supplied by that Party to the other Party in connection with this Agreement.

(f) Notwithstanding any other provision of this clause, each Party may disclose the terms of this Agreement (other than Confidential Information of a technical nature) to its related companies, solicitors, auditors, insurers and accountants.

(g) This clause shall survive the termination of this Agreement.

9. Employees and Contractors

(a) During the Restraint Period, neither Party shall solicit for employment, either directly or indirectly, any person who is employed or contracted by the other Party.

(b) A Party shall promptly advise the other Party if a person who is employed or contracted by the other Party seeks to be employed or contracted by the first mentioned Party prior to the expiration of the Restraint Period.

10. Ownership of Materials

(a) The Customer acknowledges that, unless and to the extent stipulated to the contrary in the Consulting Services Scope & Estimate, the Consultant retains all Intellectual Property Rights associated with the Materials.

(b) If the Customer has fully complied with this Agreement, and subject to any restrictions specified in the Consulting Services Scope & Estimate or the Key Terms, the Consultant shall grant the Customer a perpetual, non-exclusive and non-transferable licence to use the Materials.

(c) If requested by the Consultant, the Customer shall issue a notice in a form approved by the Consultant to all employees and other authorised users of the Materials under its direction or control, advising such persons of the Customer’s obligations under this clause and also advising of the possible civil and criminal consequences of a breach of this clause.

11. Implied Terms

(a) Subject to clause 12(b), any condition or warranty which would otherwise be implied in this Agreement is hereby excluded.

(b) Where legislation implied in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement. However the liability of the Consultant for any breach of such condition or warranty shall be limited, at the option of the Consultant, to one or more of the following:

(i) if the breach relates to goods:

(A) the replacement of the goods or the supply of equivalent goods;

(B) the repair of such goods;

(ii) if the breach relates to services:

(A) the supplying of the services again; or

(B) the payment of the cost of having the services supplied again.

12. Liability

(a) The Consultant shall at all times indemnify and hold harmless the Customer and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:

(i) a breach by the Consultant of its obligations under this Agreement; or

(ii) any wilful, unlawful or negligent act or omission of the Consultant.

(b) The Customer shall at all times indemnify and hold harmless the Consultant and its officers, employees and agents (“those indemnified”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of those indemnified arising from any proceedings against those indemnified where such loss or liability was caused by:

(i) a breach by the Customer of its obligations under this Agreement; or

(ii) any wilful, unlawful or negligent act or omission of the Customer.

(c) Except in relation to liability for personal injury (including sickness and death), the Consultant shall be under no liability to the Customer in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of goods or services supplied pursuant to this Agreement or in respect of a failure or omission on the part of the Consultant to comply with its obligations under this Agreement.

(d) Subject to clause 13(e), the Customer warrants that it has not relied on any representation made by the Consultant which has not been stated expressly in this Agreement or upon any descriptions, illustrations or specifications contained in any document including catalogues or publicity material produced by the Consultant.

(e) The Customer acknowledges that to the extent the Consultant has made any representation which is not otherwise expressly stated in this Agreement, the Customer has been provided with an opportunity to independently verify the accuracy of that representation.

13. Termination

(a) Without limiting the generality of any other clause in this Agreement, either Party may terminate this Agreement immediately by notice in writing if:

(i) the other Party is in breach of any term of this Agreement and such breach is not remedied within 30 days of it notifying the other Party;

(ii) the other Party becomes, threatens or resolves to become or is in jeopardy of becoming subject to any form of insolvency administration;

(iii) the other Party, being a partnership, dissolves, threatens or resolves to dissolve or is in jeopardy of dissolving;

(iv) the other Party, being a natural person, dies; or

(v) the other Party ceases or threatens to cease conducting its business in the normal manner.

(b) If notice is given to by a Party pursuant to clause 14(a), the Party giving the notice may, in addition to terminating the Agreement:

(i) repossess any of its property in the possession, custody or control of the other Party;

(ii) in the case of the Consultant, retain any moneys paid;

(iii) in the case of the Consultant, charge a reasonable sum for work performed in respect of which work no sum has been previously charged;

(iv) be regarded as discharged from any further obligations under this Agreement; and

(v) pursue any; additional or alternative remedies provided by law.

14. Force Majeure

(a) Neither Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is due to Force Majeure.

(b) If a delay or failure of a Party to perform its obligations is caused or anticipated due to Force Majeure, the performance of that Party’s obligations will be suspended.

(c) If a delay or failure by a Party to perform its obligations due to Force Majeure exceeds 60 days, either Party may immediately terminate the Agreement on providing notice in writing to the other Party.

(d) If this Agreement is terminated pursuant to clause 15(c), the Consultant shall refund moneys previously paid by the Customer pursuant to this Agreement for goods or services not provided by the Consultant to the Customer.

15. Sub-Contracts

(a) The Consultant may sub-contract for the performance of this Agreement or any part of this Agreement as so specified in Schedule 1 or upon obtaining (subject to clause 16(c)) the Customer’s prior consent.

(b) The Customer shall not unreasonably withhold consent for the use of a sub-contractor in accordance with clause 16(a).

(c) The Consultant may, without the consent of the Customer, engage individuals on a sub-contract or consultancy basis, whether or not operating under a corporate structure, to assist in the provision of Services pursuant to this Agreement.

16. Entire Agreement

This Agreement constitutes the entire agreement between the Parties and supersedes all prior representations, agreements, statements and understandings, whether verbal or in writing.

17. GST

(a) In this clause the expressions “consideration”, “GST”, “input tax credit”, “supply”, “tax invoice”, “recipient” and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999.

(b) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of GST.

(c) If GST is imposed on any supply made under or in accordance with this Agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time as payment for the taxable supply is required to be made in accordance with this Agreement.

(d) If this Agreement requires a Party to pay for, reimburse or contribute to any expense, loss or outgoing (Reimbursable Expense) suffered or incurred by the other Party, the amount required to be paid, reimbursed or contributed by the first Party will be the sum of:

(i) the amount of the reimbursable expense net of input tax credits (if any) to which the other Party is entitled in respect of the reimbursable expense (Net Amount); and

(ii) if the other Party’s recovery from the first Party is a taxable supply, any GST payable in respect of that supply,

such that after the other Party meets the GST liability, it retains the net amount.

18. Precedence

(a) The documents comprising this Agreement shall be read in the following order of precedence:

(i) the clauses of this Agreement;

(ii) the Key Terms;

(iii) the Consulting Services Scope & Estimate.

(b) Where any conflict occurs between the provisions contained in two or more of the documents forming this Agreement, the document lower in the order of precedence shall where possible be read down to resolve such conflict. If the conflict remains incapable of resolution by reading down, the conflicting provisions shall be severed from the document lower in the order of precedence without otherwise diminishing the enforceability of the remaining provisions of that document.

19. Assignment and Novation

Neither Party may assign or novate its interest in this Agreement without the written consent of the other Party.

20. Waiver

(a) No right under this Agreement shall be deemed to be waived except by notice in writing signed by each Party.

(b) A waiver made by the Consultant pursuant by clause 21(a) will not prejudice its rights in respect of any subsequent breach of the Agreement by the Customer.

(c) Subject to clause 21(a), any failure by the Consultant to enforce any clause of this Agreement, or any forbearance, delay or indulgence granted by the Consultant to the Customer, will not be construed as a waiver of the Consultant’s rights under this Agreement.

21. Variation

(a) The provisions of this Agreement shall not be varied, except by agreement in writing signed by the Parties.

(b) If either Party wishes to vary the Agreement, the proposing Party shall submit a copy of the proposed variations to the other Party. The receiving Party shall advise the proposing Party within 4 normal working days, or such other period as is agreed by the other Party (Receiving Party), or receipt of the variations either:

(i) that the receiving Party accepts the variations; or

(ii) that the receiving Party rejects the variation.

(c) If the receiving Party accepts the variations, the Agreement shall be deemed to incorporate the accepted variations from the date upon which the receiving Party notifies the proposing Party that it accepts the variations.

(d) If the receiving Party rejects the proposed variations, each Party shall perform the Agreement in accordance with the unvaried terms.

(e) A variation shall not be effective unless the Parties agree in writing as to:

(i) the effect of the variation, if any, upon the Charges; and

(ii) the impact of the variation on the obligations of either Party under this Agreement.

22. Disputes

(a) Any dispute arising in connection with this Agreement which cannot be settled by negotiation between the Parties or their representatives shall be submitted to arbitration in accordance with the Rules for the Conduct of Commercial Arbitration’s for the time being of the Institute of Arbitrators Australia. During such arbitration, both Parties may be legally represented.

(b) Prior to referring a matter to arbitration pursuant to clause 23(a), the Parties shall in good faith explore the prospect of mediation.

23. Severability

If any provision of this Agreement is held invalid, unenforceable or illegal for any reason, the Agreement shall remain otherwise in full force apart from such provisions which shall deemed deleted.

24. Consultant’s Rights

Any express statement of the right of the Consultant under this Agreement is without prejudice to any other right of the Consultant expressly stated in this Agreement or existing at law.

25. Survival of Agreement

(a) Subject to any provision to the contrary, this Agreement shall enure to the benefit of and be binding upon the Parties and their successors, trustees, permitted assigns or receivers but shall not enure to the benefit of any other persons.

(b) The covenants, conditions and provisions of this Agreement which are capable of having effect after the expiration of the Agreement shall remain in full force and effect following the expiration of the Agreement.

26. Governing Law

This Agreement will be governed by and construed according to the law of the State of Victoria.

27. Notices

(a) Notices under this agreement may be delivered by hand, by mail or by facsimile to the addresses specified in Key Terms or General Terms.

(b) Notice will be deemed given:

(i) in the case of hand delivery, upon written acknowledgment of receipt by an officer or other duly authorised employee, agent or representative of the receiving Party;

(ii) in the case of posting, three days after dispatch;

(iii) in the case of facsimile, upon receipt of transmission if received on a business day or otherwise at the commencement of the first business day following transmission.

28. No Share Trading

The Consultant may not trade in shares and securities the Customer and its Related Bodies Corporate during the period of this Agreement without the prior written approval of the Customer, and the Consultant will not rely on Confidential Information in trading shares and securities of the Customer and its Related Bodies Corporate at any time including after termination of this Agreement.

29. Execution

This Agreement may be executed in counterparts by the respective Parties, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement, provided that this Agreement shall be of no force and effect until the counterparts are exchanged.

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