Terms and Conditions — Supply of Equipment and Services

This Master Agreement of Terms and Conditions for Supply of Equipment and Services ("Agreement") is made between Mackay Refrigeration Pty Ltd (ACN 107 715 766) of PO Box 4087, South Mackay Queensland 4740 ("Mackay Refrigeration") and the Customer and Guarantor(s) identified in the Agreement form below.

You and Mackay Refrigeration enter into this Agreement where all parties agree to the terms and conditions set out herein to facilitate the supply of Equipment and/or services. Each Quotation and Order shall incorporate and be governed by all provisions of this Agreement.

1. Definitions and Interpretation

Agreement / Terms and Conditions — This Master Agreement of Terms and Conditions for Supply of Equipment and Services.

Business Day — Any day except Saturday, Sunday, or a public or bank holiday in Queensland.

Commencement Date — The date specified in a Quotation for commencement of the Works under a Contract.

Completion Date — The date specified in a Quotation estimated for completion of the Works under a Contract.

Confidential Information — All information passing from Mackay Refrigeration to the Customer relating to a Quotation, including trade secrets, drawings, know-how, techniques, concepts, projections, arrangements and Deeds with third parties, Mackay Refrigeration information, formulae, designs, plans, models, financial data and pricing lists, other than information in the public domain for any reason other than by the Customer's breach of these terms.

Contract — A contract to carry out the Works between the Customer and Mackay Refrigeration, created by the Customer's acceptance of a Quotation.

Contract Documents — A Quotation and all drawings, plans, specifications, and all other information provided by the Customer to Mackay Refrigeration in relation thereto.

Deposit — The amount specified in a Quotation, payable by the Customer to Mackay Refrigeration immediately upon formation of a Contract.

Equipment — The equipment, goods, and/or materials — and where applicable, installation and any other related services — that are either specified in a Quotation or reasonably necessary to complete, comply with, and/or fulfil the Quotation.

GST Act — The A New Tax System (Goods and Services Tax) Act 1999 as amended from time to time.

GST — Has the meaning given by the GST Act.

Guarantors — The person(s) executing this document as Guarantor.

Head Contract — A contract between the Customer and its customer, which includes the Works as part of its scope of work.

Order — Has the meaning given by Clause 3.3.

Price — The price to be paid by the Customer to Mackay Refrigeration for the performance of the Works in accordance with the Quotation.

Provisional Sum — Mackay Refrigeration's estimate of the cost of performing a part of the Works for which, after making all reasonable enquiries, a definite amount cannot be determined at the time a Contract is entered into.

Quotation — A written quotation given by Mackay Refrigeration to the Customer specifying the scope of the Works, any Deposit, the Commencement Date, Completion Date, and Price, which is deemed to incorporate and be governed by these Terms and Conditions.

Servants — Servants, employees, agents, contractors, and sub-contractors.

Site — Where the Works under a Contract are carried out, as specified in a Quotation.

Variation — Varying the Works by: (A) carrying out additional work; (B) omitting any part of the Works; or (C) changing the scope of the Works.

Works — The work to be carried out under a Contract, including Variations and Equipment to be consumed in effecting the Works or incorporated into the Site.

Written — Communication in written form including by facsimile, email, SMS, or similar electronic means.

In this Agreement, unless the context otherwise requires: the singular includes the plural and vice versa; a reference to a person includes an individual and a corporation, partnership, joint venture, association, authority, trust, State or Government; references to legislation include amendments and subordinate legislation; references to "$" are to Australian currency; and all headings are for ease of reference only and do not affect interpretation.

2. Governing Law

2.1 — This Agreement and any Contract made between the parties shall be governed by and construed in accordance with the laws of Queensland. The parties agree to submit to the jurisdiction of the Courts of Queensland in all matters arising out of this Agreement and any Contract made between the parties.

3. Formation of Agreement

3.1 — The Customer may accept a Quotation within the period specified in the Quotation. Mackay Refrigeration may, at its option and absolute discretion, extend the period of a Quotation by notice in writing. If the period of a Quotation lapses or expires, acceptance by the Customer does not create, and is incapable of creating, a Contract.

3.2 — Mackay Refrigeration may, at its absolute discretion and without incurring any liability to the Customer whatsoever, revise or withdraw a Quotation at any time before the Customer communicates its acceptance in writing.

3.3 — The Customer may accept a Quotation including by signing and returning a copy of a Quotation to Mackay Refrigeration or otherwise acknowledging and agreeing to its terms (an "Order").

3.4 — The parties will be deemed to have formed a Contract upon acceptance by the Customer of a Quotation.

3.5 — In the event of any inconsistency between a Quotation and this Agreement, the Quotation will prevail.

4. Head Contract Terminated

4.1 — If a Head Contract (if applicable) is terminated for any reason, Mackay Refrigeration will be relieved of its obligation to perform the respective Contract, without prejudice to any claim Mackay Refrigeration may have against the Customer for loss and damage suffered as a result of the termination.

5. Variations

5.1 — Any party seeking a variation to a Contract shall notify the other party of the details of the required changes to the Works.

5.2 — Where both parties consent to varying a Contract, Mackay Refrigeration will prepare a variation document ("Variation") which will: (a) be signed by both parties; (b) state the scope of the Variation; and (c) state the reason for the Variation.

5.3 — If a Variation varies the Price, the Price is to be adjusted accordingly in the next payment made after commencement of the Works the subject of the Variation.

6. Defects in Existing Installation

6.1 — For the purposes of a Quotation, it is assumed (unless otherwise specified) that existing installations comply with statutory regulations and are in a reasonable state of repair.

6.2 — Should Mackay Refrigeration, in the course of any Work, discover any defect or non-compliance in any part of the Site, premises, or existing installation which makes it impracticable, unlawful, or inexpedient to continue work without repair or replacement (Mackay Refrigeration shall be the sole judge thereof), Mackay Refrigeration shall be entitled to suspend work and immediately notify the Customer. Mackay Refrigeration will submit the price of such additional work in accordance with Clause 5. If the Customer fails to sign the Variation, the Contract shall be deemed at an end and Mackay Refrigeration shall be entitled to payment for all work done and materials supplied to the date of suspension.

7. Manufacturer's Warranty

7.1 — Mackay Refrigeration does not warrant the quality or performance of any Equipment supplied or installed. It is the Customer's responsibility to establish the warranty relationship with the manufacturer by ensuring that warranty cards or other registration requirements are complied with.

8. Progress Payments

8.1 — The Customer shall pay to Mackay Refrigeration the Deposit (if any) upon formation of a Contract.

8.2 — The Customer will pay Mackay Refrigeration the Price by way of progress payments calculated in accordance with Clause 8.3, in addition to the Deposit.

8.3 — Mackay Refrigeration may submit to the Customer written progress claims (which may be in the form of a Tax Invoice under the GST Act) consisting of: (a) the amount payable for Works carried out and not previously charged; and (b) any other amounts then payable to Mackay Refrigeration under a Contract.

8.4 — The Customer must pay each progress claim within seven (7) Business Days of submission (the "Due Date").

8.5 — Should the Customer neglect or refuse to pay any progress claim by the Due Date, Mackay Refrigeration may, at its option and with or without notice, suspend performance of the Works until payment has been received in full.

8.6 — Mackay Refrigeration shall be entitled to charge interest on any moneys not paid when due at the rate specified in the Quotation or, if no rate is specified, calculated in accordance with section 67P(3)(a) of the Queensland Building Services Authority Act 1991 (Qld).

9. Increased and Cancellation Costs

9.1 — If, after 30 days from the formation of a Contract, Mackay Refrigeration's costs increase as a result of the introduction of new, or changes to existing, government taxes or charges or Provisional Sums (or under Clause 10), the Price shall be increased accordingly and the Customer shall pay the increased Price in accordance with Clause 8.

9.2 — If any Contract, or any part of the Works, is postponed or cancelled by the Customer, the Customer shall reimburse to Mackay Refrigeration all costs and expenses actually incurred in preparation for undertaking the Works, together with (at the election of Mackay Refrigeration) an amount equivalent to the profit which Mackay Refrigeration would have made had the Works not been cancelled or postponed.

10. Supply Price Fluctuations

10.1 — Where Equipment to be supplied has increased in price after a Contract was formed, the Price shall be varied by the amount of the difference between the price of the Equipment at the time the Contract was entered into and the actual cost to Mackay Refrigeration including any duty or tax payable thereon.

11. Excepted Risks

11.1 — Mackay Refrigeration shall not be liable for any failure to perform its obligations under this Agreement or any Contract if such failure or delay results directly or indirectly from any cause beyond its reasonable control, including but not limited to:

• (a) Any act, default, or omission on the part of the Customer, its employees or agents, or any third party carrying out work on the Site;
• (b) The timing of work performed or not performed on the Site by other contractors;
• (c) Damage by fire, explosion, earthquake, lightning, storm, flood, acts of God, civil or military authority, public enemy, war, civil commotion, strikes, labour disputes, or industrial conditions;
• (d) Electric power supply failure;
• (e) Inclement weather;
• (f) Unavailability of suitable Equipment;
• (g) Failure of transportation affecting Mackay Refrigeration, its supplier, or any other person;
• (h) Variations directed by the Customer or required to complete the Works safely and effectively;
• (i) Changes in the law; or
• (j) Directions or delays by municipal, public, or statutory authorities.

12. Risk and Ownership

12.1 — Risk of loss, damage, or destruction to the Works or any part thereof shall pass to the Customer as and when each part is completed.

12.2 — If any fixtures, fittings, or Equipment are supplied by the Customer, all care will be taken, but such items will be stored, handled, and installed at the Customer's risk.

12.3 — The Customer has no right or claim to any interest in the Equipment to secure any liquidated or unliquidated debt or obligation Mackay Refrigeration owes to the Customer.

12.4 — The Customer cannot claim any lien over the Equipment.

12.5 — The Customer will not create any interest in the Equipment in relation to any third party except as authorised by Mackay Refrigeration.

12.6 — Where the Customer is in actual or constructive possession of the Equipment, the Customer will not deliver them or any document of title to any person except as directed by Mackay Refrigeration, and is in possession of the Equipment as a bailee of those Equipment, owing Mackay Refrigeration the duties and liabilities of a bailee.

12.7 — The property of Mackay Refrigeration in the Equipment remains with Mackay Refrigeration until Mackay Refrigeration has received payment in full of the Price and any other moneys due under this Agreement or any Contract between the parties.

12.8 — The Customer is a bailee of the Equipment until property in them passes to the Customer, and this bailment continues until the Price of a Contract has been paid in full.

12.9 — Pending payment in full of the Price under a Contract, the Customer must not allow any person to have or acquire any security interest in the Equipment.

12.10 — If the Customer supplies any Equipment to any person before all moneys have been paid to Mackay Refrigeration, the Customer agrees that: (a) it holds the proceeds of re-supply on trust for and as agent for Mackay Refrigeration immediately when receivable or received; (b) it must either pay those proceeds to Mackay Refrigeration immediately or pay them into an account as trustee for Mackay Refrigeration; (c) any accessory which accedes to the Equipment by act of the Customer or any person at the Customer's direction becomes and remains the property of Mackay Refrigeration until paid in accordance with Clause 12.7; and (d) if the Customer fails to pay the Price at the required time, Mackay Refrigeration may recover possession of the Equipment from any site owned, possessed, or controlled by the Customer, and the Customer grants Mackay Refrigeration an irrevocable licence to do so and to dispose of the Equipment to recover costs.

13. Access

13.1 — Any Completion Date stated in a Quotation is an estimate only. Mackay Refrigeration will not be liable for any delays in completion or late delivery, or for any loss, damage, or delay occasioned by the Customer or any other persons arising from the late completion or delivery.

13.2 — Mackay Refrigeration's Quotation is based on a continuous works programme unless otherwise stated. If the Customer causes delays, or delays are caused by any event in Clause 11, the Customer shall pay to Mackay Refrigeration such extra costs as are reasonably incurred, including compensation for loss of profit, additional overheads, or administrative expenses.

14. Hours of Work

All work will be carried out during normal working hours, being 8:00 am to 4:30 pm Monday to Friday, unless otherwise stated. Should the Customer require Works to be carried out outside these hours, or it is otherwise reasonably necessary to do so, the Price will be increased to reflect any increased costs (such as overtime wage rates) for that part of the Works performed outside nominated hours, and the Customer shall pay the increased Price in accordance with Clause 8.

15. Customer Responsibilities

15.1 — You acknowledge that the features of the Equipment are not designed to be a substitute for operator vigilance and adherence to safety operating procedures, and that components of the Equipment must be correctly configured.

15.2 — Any instruction provided in relation to the Equipment relates to the features of the Equipment only. You are entirely responsible for training all operators of your equipment and ensuring they are competent and appropriately supervised.

15.3 — You agree to comply with all applicable laws and best practice standards for the regular inspection or maintenance of the Equipment.

15.4 — You agree to follow the instructions provided by Mackay Refrigeration in using the Equipment. Mackay Refrigeration will not be responsible for any collision, accident, explosion, damage, death, or injury caused or contributed to by any person under your direction or control failing to follow the operating instructions for the Equipment.

16. Damages

16.1 — To the extent permitted by law, any liability of Mackay Refrigeration to the Customer under a Contract shall be limited to: (a) in the case of Equipment supplied — replacement or supply of equivalent Equipment, payment of the costs of replacing or acquiring equivalent Equipment, or payment of the costs of having the defective Equipment rectified, at the election of Mackay Refrigeration; (b) in the case of services provided — re-supply of the services or payment of the costs of having the services supplied again, at the election of Mackay Refrigeration.

16.2 — Mackay Refrigeration shall not be liable for any loss or damages suffered by the Customer for any economic loss or consequential loss or damage, including but not limited to loss of profits, loss of opportunity, or loss of use of the Site or of the benefit of the Works or any part thereof.

17. GST

17.1 — Mackay Refrigeration warrants that, as at the date of this Agreement, it is registered under the GST Act and is not aware of any circumstances that would require the Commissioner of Taxation to cancel the registration.

17.2 — Unless expressly stated to the contrary, any Price, Provisional Sum, or costs of any Variation are exclusive of GST. The Customer shall pay any GST applicable to any supply under the GST Act, in addition to any costs.

18. Insurance

18.1 — The Customer shall effect and maintain at all times whilst any work is being carried out by Mackay Refrigeration, Public Liability Insurance covering any loss, damage, or injury sustained by Mackay Refrigeration or any of its Servants as a consequence of any defect with the Site or any part thereof.

18.2 — The Customer shall provide Mackay Refrigeration with evidence of the existence of such policies, if requested.

19. Guarantee

19.1 — The Guarantors hereby guarantee to Mackay Refrigeration: (a) the punctual payment by the Customer to Mackay Refrigeration of all sums of money becoming due, owing, or payable under the terms of this Agreement, including in relation to Future Equipment and any Quotation ("the Guaranteed Monies"), at the times and in the manner set out in this Agreement or otherwise on demand; and (b) the due and punctual performance and observance by the Customer of all covenants, provisions, and stipulations on the part of the Customer to be performed and observed under this Agreement ("the Guaranteed Obligations").

19.2 — The Guarantors further indemnify Mackay Refrigeration against and in respect of any damage, loss, claim, demand, cost, expense, or obligation (direct or indirect) which Mackay Refrigeration has or may suffer, incur, or sustain as a result of the Customer's failure to pay the Guaranteed Monies when due or to perform the Guaranteed Obligations.

19.3 — This guarantee and indemnity shall be a continuing guarantee and indemnity until the whole of the Guaranteed Monies are paid and the whole of the Guaranteed Obligations performed, and shall be independent of and in addition to any other security instrument or document which Mackay Refrigeration may hold.

19.4 — The liability of the Guarantors shall not be affected or discharged in any way in the event that Mackay Refrigeration grants the Customer any time or any other indulgence, compounds with or releases the Customer, or varies any terms of the Agreement.

19.5 — Any omission, failure, or refusal by Mackay Refrigeration to exercise its rights under the Agreement shall not prejudice, affect, discharge, or diminish any of the liabilities of the Guarantors, and the liability of the Guarantors shall not be affected or discharged by any laches or mistakes on Mackay Refrigeration's part.

19.6 — For the purposes of this guarantee, the Guarantors may be treated as the principal debtors under the Agreement, and the Guarantors waive all rights either at law or under any statute that the Guarantors might otherwise be entitled to claim or enforce.

19.7 — The Guarantor acknowledges and permits the Customer to place Orders pursuant to these Terms and Conditions, and the guarantee herein shall include any liability or obligation owing by the Customer to Mackay Refrigeration under such Orders.

20. PPSA

20.1 — This clause applies to the extent that these Terms and Conditions provide for a Security Interest for the purposes of the Personal Property Securities Act 2009 (Cth) ("PPSA").

20.2 — In this Clause: Controller, Proceeds and Security Interest have the same meaning as in the PPSA; Documentation Costs means all fees and outlays associated with registration of any Security Interest on the PPSR; Grantor means the Customer; PMSI means a purchase money security interest as defined in the PPSA; PPSR means the Personal Property Securities Register; Secured Party means Mackay Refrigeration or any lawful assignee, transferee, or successor in relation to the Security Interest.

20.3 — Mackay Refrigeration's rights under this document are in addition to and not in substitution for its rights under other law (including PPS Law).

20.4 — The Customer acknowledges that Mackay Refrigeration's interest under this Agreement is a Security Interest for the purposes of the PPSA, relating to the Personal Property and all Proceeds of any kind, and that this agreement is a security agreement for the purposes of the PPSA.

20.5 — Mackay Refrigeration may register its Security Interest on the PPSR (including as a PMSI). The Customer must do anything required for the purposes of: (a) ensuring that Mackay Refrigeration's Security Interest is enforceable, perfected, and effective under PPS Law; (b) enabling Mackay Refrigeration to gain first priority for its security interest; and (c) enabling Mackay Refrigeration to exercise rights in connection with the security interest.

20.6 — The Customer must pay Documentation Costs on demand.

20.7 — To the maximum extent permitted by law, the Customer agrees that sections 95, 96, 117, 118, 120, 121(4), 123, 125, 126, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142, and 143 and Division 6 of Part 4.3 of the PPSA will not apply to the enforcement of any Security Interest arising under or in connection with this Agreement.

20.8 — The Customer waives its right (including under s 275) to receive any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA and cannot be excluded.

20.9 — The Customer must not assign or grant a Security Interest in this Agreement or any rights or obligations hereunder without the prior written consent of Mackay Refrigeration.

20.10 — The Customer must not create, purport to create, or permit to be created any Security Interest in the Equipment, or lease, hire, bail, sell, or give possession of the Equipment to anyone else, other than with the express written consent of Mackay Refrigeration.

21. Notices

21.1 — Except where otherwise provided, any notice under this Agreement shall be given in writing. If delivered by prepaid post to the address stated in this Agreement or to such other address as the relevant party may notify, such notice shall be deemed to have been received two (2) Business Days after the date of posting.

22. Confidentiality

22.1 — Any Quotation and any documents attached thereto contain Confidential Information for the use of the Customer only.

22.2 — The Customer shall not disclose the Confidential Information, or suffer or permit it to be disclosed, to any person or company except with the prior written consent of Mackay Refrigeration.

22.3 — Without limiting Clause 22.2, the Customer shall not: (a) take any action or use any process based on the Confidential Information without the consent in writing of Mackay Refrigeration; or (b) use or disclose to a third party any aspect of the Confidential Information for any purpose whatsoever.

22.4 — The obligations under this Clause 22 shall survive the finalisation or discontinuance of negotiations in respect of a Quotation and shall continue for so long as the Quotation shall remain Confidential Information.

23. Intellectual Property

23.1 — Mackay Refrigeration owns all copyright throughout the world in a Quotation and any documents attached thereto which have been prepared by Mackay Refrigeration for the purposes of a Quotation, including any drawings, plans, designs, or pricings.

24. Privacy

24.1 — The personal information provided by the Customer or any Guarantor will be held by Mackay Refrigeration.

24.2 — Mackay Refrigeration may use the personal information provided by the Customer or any Guarantor for the purposes of completing the Works and for direct marketing of products and other services offered by Mackay Refrigeration or an organisation it is affiliated with. The Customer or any Guarantor have the right to request not to receive direct marketing material.

24.3 — The Customer and any Guarantor consent to Mackay Refrigeration collecting and using personal information as specified above.

25. Credit Card Surcharge

25.1 — Mackay Refrigeration will charge a fee of 1.5% of any payment amount for accepting payment of moneys due and owing under this Agreement by way of credit card.

26. Set-off

26.1 — Mackay Refrigeration may set-off against any moneys owing by it to the Customer or any Guarantor, any moneys owing by the Customer or any Guarantor to Mackay Refrigeration.

27. Unenforceable Provisions and Severance

27.1 — If a provision of a Contract or this Agreement is void, voidable, unenforceable, or illegal but would not be if it were read down, it shall be read down. If it would not be void, voidable, unenforceable, or illegal if a word or words were omitted, that word or those words are severed. Should the provision nevertheless be void, voidable, unenforceable, or illegal, it shall be severed yet the remainder of the Contract or this Agreement will remain in full force and effect.