Download the Mosh DC Terms of Business 1. DEFINITIONS

1.1 In this Agreement, unless the contrary intention appears the following words have the following meanings:

Acceptance Period means thirty (30) days from the date the Quotation is issued to the Client.

Agreement means the Quotation, these Terms of Business and any deed, contract, agreement, arrangement or understanding (as amended, varied or replaced from time to time) made between the parties.

Australian Consumer Law means Schedule 2 of the Competition and Consumer Act 2010 (Cth).

Balance Payment means the Price less the Deposit and the Progress Payment due within thirty (30) days of the Works having being completed.

Business Daymeans a day on which banks are open for business on the Gold Coast in Queensland, other than a Saturday, Sunday or public holiday

Claim means any claim, cause of action, Liability, demand, action, remedy, suit, injury, indemnity, damage, proceeding, litigation, investigation or judgment whether based in contract, tort, statute or otherwise whether present, unascertained, immediate, future or contingent.

Client means the party identified in in the Quotation.

Commencement Date means the estimated date for MD&C to commence the Works as identified in the Quotation.

Completion means the date MD&C notifies the Client that the Works have been completed.

Consequential Loss

• (a) Loss of bargain;
• (b) Loss of revenues;
• (c) Loss of reputation;
• (d) Indirect loss;
• (e) Loss of profits;
• (f) Consequential loss;;
• (g) Loss of actual or anticipated savings;
• (h) Lost opportunities, including opportunities to enter into arrangements with third parties;
• (i) Loss or damage in connection with claims against the Client by third parties.

Contractors means all contractors, builders, consultants (including without limitation town planning consultants, geotechnicians, certifiers, building inspectors and engineers) suppliers, service providers and other parties required to be engaged or that are engaged to carry out, or provide goods or services in connection with, the Works.

Covid-19 Pandemic means the Covid-19 coronavirus pandemic as established by the World Health Organisation, and includes all regulations, sanctions, travel restrictions, forced closures, lockdowns, self isolation, quarantine or other pandemic protocols, directions or unforeseen circumstances imposed by any government authority in respect of or in connection to the Covid-19 coronavirus pandemic.

Deposit means the amount particularised in Quotation.

Dispute is given the meaning assigned in clause 14 of this Agreement.

Estimated Completion Date means the date indicated in the Quotation as the estimated date of completion of the Works.

Event of Default means:

• (a) if the Client fails to pay the Price in accordance with this Agreement or fails to pay any other money payable under this Agreement as and when due;
• (b) the Client breaches a term of this Agreement and fails to remedy that breach within seven (7) days after receiving a written notice from MD&C to do so;
• (c) if the Client has provided misleading, false or inaccurate statements to MD&C which, in MD&C’s opinion, has caused a material effect on its ability to undertake the Works or the Client’s ability to pay the Price; or
• (d) the Client suffers an Insolvency Event;
• (e) the Client otherwise is in substantial breach of their obligations under this Agreement or the Quote.

Force Majeure Event means any occurrence or omission outside a party’s reasonable control, as a direct or indirect result of which the party relying on the event is prevented from or delayed in performing its obligations under this Agreement (other than a payment obligation), and includes:

• (a) an act of God or disaster (whether natural or man-made) including fire, flood, lightning or earthquake;
• (b) riot, war, civil commotion, act of public enemies, national emergency (whether in fact or in Law);
• (c) epidemic, pandemic (including the Covid-19 Pandemic) or quarantine restriction;
• (d) enforceable government declaration or direction; or
• (e) supply shortage or strike, lock out, stoppage, labour dispute or shortage including industrial disputes involving MD&C’ suppliers.

Government Authority includes:

• (a) a government or government department or other body (including the local council);
• (b) a government, semi-governmental or judicial person; or
• (c) a person (whether autonomous or not) who is charged with the administration of a Law.

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

Guarantee means a guarantee provided to secure the performance of the Client of its obligations pursuant to this Agreement and includes without limitation the guarantee set out at clause 17.1 of this Agreement.

Guarantor means the party identified in the Quotation.

Insolvency Event means the occurrence of any one or more of the following events in relation to any party:

• (a) if the party is an individual, the party is a bankrupt, or has signed an authority under section 188 of the Bankruptcy Act 1966 (Cth);
• (b) an application (other than one that is dismissed within ten (10) Business Days) is made to a court for an order or an order is made, that the party be wound up;
• (c) an application (other than one that is dismissed within ten (10) Business Days) is made to a court for an order appointing a liquidator, provisional liquidator, receiver or other administrator in respect of the party or one of them is appointed whether or not under an order;
• (d) a resolution is passed to appoint an insolvency administrator in respect of the party;
• (e) the party enters into, or resolves to enter into, a scheme of arrangement or composition with, or assignment for the benefit of, all or any class of its creditors or it proposes a reorganisation, moratorium or other administration involving any one of them;
• (f) the party resolves to appoint an administrator to itself, wind itself up, or otherwise dissolve itself, or gives Notice of an intention to do so, or is otherwise wound up or dissolved;
• (g) the party is or states that it is, unable to pay its debts as and when they fall due;
• (h) the party takes any steps to obtain protection or greater protection from its creditors under any applicable legislation; or
• (i) any secured creditor of the party enforces its security.

Intellectual Property means all intellectual property and proprietary rights (whether registered or unregistered) owned or used by the relevant party including without limitation trademarks, logos, confidential information, manuals, specifications, all patents, patent applications, drawings, discoveries, inventions, improvements, trade secrets, technical data, formulae, software and computer programs, know-how, logos, registered designs, design rights, copyright and similar industrial or intellectual property rights.

Law includes any law, whether statute or common law (including the laws of negligence and nuisance and principles of equity), ordinance, regulation, by-law, order or other determination of any government authority or statutory authority and other instruments under them, and consolidations, amendments, re-enactments or replacements of any of them.

Loss means any loss, damage, compensation, fine, penalty, charge, payment, cost or expense (including any legal cost and expense) however it arises and whether it is present or future, fixed or unascertained, actual or contingent.

Material Affect means a change in circumstances which in the professional judgment of MD&C requires an increase in the Price over and above the Price.

Payment Terms means the amounts and timing of payment of the Price as identified in the definition of Progress Instalment below.

Personal Property means all of the Client’s present and after-acquired personal property to which the PPSA applies and all of the Client’s present and future rights in relation to any personal property to which the PPSA applies, including all 'PPSA retention of title property' (as defined in the PPSA).

PPSA means the Personal Property Securities Act 2009 (Cth).

PPSR means the Personal Property Security Register under the PPSA.

Pre-existing Condition has the meaning given to in clause 5.2 of this Agreement.

Price means the fee identified in the Quotation and includes any other amounts payable pursuant to this Agreement.

Progress Instalment means each progress payment instalment of the Price as noted below:

• 1. the Deposit;
• 2. the Progress Payment; and
• 3. the Balance Payment.;

Progress Payment means the amount particularised in Quotation.

Progressive or Periodic Supply means a Taxable Supply that satisfies the

Quotationmeans the quotation for the Works provided by MD&C to the Client.

Site means the land and property identified in the Quotation.

Specifications means the specification for the Works identified in the Quotation.

Tax Invoice has the meaning given to the term ‘tax invoice’ in the GST Act.

Term means the period from the Commencement Date until Completion or the date this Agreement is terminated.

Works means the works to be undertaken by MD&C as described the Quotation and in accordance with the Specifications.

2. AGREEMENT

2.1 These Terms of Business constitute an Agreement between Mosh Design & Construction Pty Ltd ACN 140 993 344 (‘MD&C') and the Client.

2.2 On acceptance of the Quotation pursuant to clause 3.3 below, the Client agrees to be bound by the terms of this Agreement.

3. ACCEPTANCE

3.1 Despite anything to the contrary in this Agreement, MD&C may withdraw or alter the Quotation at any time during the Acceptance Period but prior to acceptance by the Client.

3.2 Unless previously withdrawn by MD&C in writing to the Client, the Quotation remains open for acceptance by the Client during the Acceptance Period.

3.3 To accept the Quotation, the Client must execute this Agreement and return the signed Agreement to MD&C.

3.4 If the Quotation is:

• (a) withdrawn by MD&C during the Acceptance Period prior to acceptance by the Client; or
• (b) otherwise not accepted by the Client prior to 5.00pm on the expiration of the Acceptance Period in accordance with clause 3.3 above,

the Quotation will lapse and will no longer be binding on MD&C.

3.5 Once the Client has accepted the Quotation in accordance with clause 3.3 above, the Client may not cancel or seek to vary the Works or Specifications or other conditions contained in the Quotation or this Agreement:

• (a) other than in accordance with clause 13 of this Agreement; and
• (b) without limiting clause 3.5(a) above, unless the Client pays MD&C reasonable costs of and incidental to the cancellation or variation.

4. PRICE

4.1 Payment

• (a) The Client must pay the Price to MD&C, without setoff, in accordance with the Payment Terms, in exchange for a valid Tax Invoice(s) from MD&C
• (b) If there is a Dispute about the Price or other amount payable under this Agreement, the Client must not withhold the amount in dispute but may exercise its rights under clause 14 of this Agreement.
• (c) The Price may be increased to include additional amounts payable for variations agreed pursuant to clause 13.2 of this Agreement (if any).

4.2 Payment Method

• (a) Any payment referred to in this Agreement must be paid by EFT, cash or cheque.
• (b) If paid by EFT or cheque, the payment is only deemed received when cleared funds are received by MD&C.

4.3 Overdue amounts

• (a) Without limiting any of MD&C’s other rights under this Agreement or at Law, if the Client fails to pay MD&C a Progress Instalment on the date it is due pursuant to the Payment Terms, MD&C may charge interest on the overdue amounts at the rate of 10% per annum, calculated daily.
• (b) All interest on overdue amounts shall be calculated from the date the payment was due and owing until the date payment is received by MD&C.

4.4 Deferral of performance

If the Client does not pay a Progress Instalment as and when it is due in accordance with the Payment Terms, then without limiting any other remedies available to MD&C, MD&C may suspend performance of the Works until the outstanding Progress Instalment is paid.

4.5 Retention of Goods

Any goods supplied as part of the Works remain property of MD&C until the Price has been paid in full.

5. CLIENT SUPPLIED INFORMATION

5.1 The Client must (at the Client’s own cost):

• (a) make available to MD&C all relevant information and material in respect of its requirements for the Works or any other material as required for MD&C to undertake the Works and perform its obligations under this Agreement;
• (b) respond to all reasonable requests of MD&C for information, decisions or approvals in connection with the Works or as is reasonably required to enable MD&C to perform its obligations under this Agreement;
• (c) promptly notify MD&C upon becoming aware of any matter which may materially affect the Works;
• (d) not unreasonably delay an action, approval, direction, determination or decision which is required of the Client pursuant to this Agreement; and
• (e) not withhold from MD&C any documents, plans, knowledge or information within its power of control which may relate to or impact on MD&C’s ability to properly perform and discharge its obligations under this Agreement.

5.2

The Client must notify MD&C of any pre-existing condition of the Site (or any part of it) which may affect the suitability, effectiveness or safety of the Works or construction of the improvements in accordance with the Works ('Pre-existing Condition').

5.3

Any Pre-existing Condition is at the Client’s risk and the Client accepts all responsibility for any Pre-existing Condition of the Site (or any part of it).

5.4

The Client indemnifies, and will keep indemnified, MD&C in respect of any Claims or Liability arising from or in any way connected to any Pre-existing Condition.

5.5

MD&C is not liable if the Works or construction of the improvements are compromised as a result of or in connection with a Pre-existing Condition, that was not disclosed by the Client to MD&C prior to the commencement of the Works.

6. CLIENT OBLIGATIONS

6.1 During the Term, the Client must provide MD&C with:

• (a) free and unencumbered access to the Site sufficient to enable MD&C to undertake the Works;
• (b) any information and assistance reasonably necessary to enable MD&C to carry out the Works; and
• (c) its cooperation and best endeavours to give effect to this Agreement.

6.2

If the Client or its employees, agent or invitees (as applicable) do not comply with one or more of the conditions in clause 6.1 above the Client acknowledges and agrees that, without limiting MD&C other rights under this Agreement or at Law:

• (a) MD&C may suspend performance of the Works until the default is remedied; and
• (b) all reasonable additional expenses suffered or incurred by MD&C (including those incurred in connection with the suspension of the Works) are payable by the Client on demand, in addition to the Price.

7. MD&C’S OBLIGATIONS

7.1 Licence to undertake Works

• (a) The Works constitute building works within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld)) (‘QBCC Act’).
• (b) In undertaking the Works, MD&C must hold all appropriate licences under, and comply with the provisions of the, QBCC Act.
• (c) MD&C warrants in favour of the Client that MD&C (and any employees of MD&C engaged to carry out the Works):
• (i) hold all appropriate licences as at the Commencement Date; and
• (ii) during the Term will continue to hold all licences,

required under any Law or by any Government Authority as are necessary for MD&C to lawfully undertake the Works (including without limitation any licence required under the QBCC Act).

7.2 Obligations

MD&C must perform the Works with due skill, care and diligence.

8. WARRANTIES

8.1 Client Warranties

The Client represents and warrants to MD&C and it is a condition of this Agreement that:

• (a) the Client has full power and lawful authority to execute and deliver this Agreement and to perform or cause to be performed its obligations under this Agreement;
• (b) the Client has the ability to pay the Price and is not bankrupt;
• (c) the Client has not withheld from MD&C any document, information or other fact material to the decision of MD&C to enter this Agreement or agree to undertake the Works; and
• (d) the Client has not relied on any representation, statement or inducement to enter into this Agreement.

8.2 Acknowledgement

• (a) The Client acknowledges that MD&C is relying on the representations and warranties of the Client under clause 8.1 above in executing this Agreement.
• (b) The representations made and warranties given in clauses Error! Reference source not found. and 8.1 of this Agreement do not merge on Completion.

8.3 Statutory Warranties

• (a) Where the Australian Consumer Law applies to this Agreement:
• (i) the Works come with guarantees that cannot be excluded under the Australian Consumer Law;
• (ii) for major failures with the Works, the Client is entitled to:
• (A) cancel this Agreement;
• (B) a refund for the unused portion of the Price paid by the Client, or to compensation for the reduced value of the unused portion of this Agreement; and
• (C) be compensated for any other reasonably foreseeable Loss;
• (iii) if the failure does not amount to a major failure, the Client is entitled to have the defects or failure with the Works rectified in a reasonable time.
• (iv) if this is not done, the Client is entitled to a refund for the Works and to cancel this Agreement and obtain a refund of the unused portion of Price paid by the Client.
• (b) To the maximum extent permitted by the Australian Consumer Law, MD&C is not liable for any Claim, damage or failure in respect of the Works to the extent such Claim, damage or failure is due to:
• (i) a breach of this Agreement by the Client; or
• (ii) the reckless or negligent act or omission of the Client, its employees, agents, invitees or Contractors.

8.4 Defects or faults

The Client must give MD&C notice in writing of any defects or failure in the Works in sufficient detail within fourteen (14) days after the Client becomes aware of the relevant defect or failure.

9. COMPLETION

9.1 Estimated Completion Date

• (a) The Estimated Completion Date is a genuine estimate and is given as an approximate indication only.
• (b) MD&C will use its reasonable endeavours:
• (i) to undertake the Works by the Estimated Completion Date; and
• (ii) achieve Completion by the Estimated Completion Date,

but is not liable to the Client for any Claim arising either directly or indirectly from any delay or failure to do so.

9.2 Consequences of delays

• (a) Without limiting clause 16.1 of this Agreement, MD&C will not be liable if provision of the Works is prevented or delayed due to any act, omission or default of the Client or any party under or through the Client (including but not limited to a failure to provide access to the Site or to pay the Price pursuant to the terms of this Agreement).
• (b) The Client is responsible for and must pay on demand all expenses, costs, charges and other money incurred by MD&C associated with any delay in provision of the Works due to one or more of the matters described in clause 9.2(a) above.

10. PPSA

10.1 Interpretation

Any words capitalised in this clause and not already defined in this Agreement have the meaning given to those words in the PPSA.

10.2 Security for performance

The Client charges its interest in all of its property (including the Site and any other of its other real property) with the Client’s obligations, and all warranties and indemnities given by the Client, under this Agreement.

10.3 Granting of security interest

• (a) MD&C and the Client agree that, for the purposes of the PPSA, this Agreement constitutes a security agreement under which the Client grants a Security Interest in all of the Client’s present and after-acquired property to MD&C to secure the performance of the Client’s obligations under this Agreement.

10.4 Waiver of PPSA rights

• (a) The Client and MD&C waive their rights to receive notices under Sections 95, 96, 118, 121 (4), 125, 130, 132 (3)(d) and 132 of the PPSA.
• (b) The Client and MD&C waive their rights as a grantor and/or a debtor pursuant to Sections 142 and 143 of the PPSA.

10.5 Consent to registration

• (a) The Client consents to MD&C effecting a registration on the PPSR (in any manner MD&C considers appropriate) in relation to any Security Interest arising under or in connection with this Agreement.
• (b) The Client must provide all assistance reasonably required by MD&C to facilitate registration of any Security Interest arising under or in connection with this Agreement.

10.6 Verification certificates

The Client waives its right 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.

10.7 Continuing security and obligations

• (a) The Security Interests granted under this Agreement are continuing securities until MD&C releases all property the subject of the relevant Security Interests, despite any intermediate payment, discharge, settlement, release or other matter.
• (b) The Client's obligations under this Agreement continue despite any full or partial release of the property the subject of the Security Interest and no full or partial release of such property will release the Client from Liability under this Agreement until the Price has been received by MD&C in full.

10.8 Priority of Security Interest in Secured Property

• (a) The parties intend that the property subject of any Security Interest created under this Agreement:
• (i) takes priority over all other security interests and other interests in such property at any time other than as expressly permitted to the contrary by MD&C or as mandatorily preferred by Law; and
• (ii) has the same priority in relation to the Price, including future Price (if any).

10.9 Release of Security

The Client may require MD&C to release one or more of the Security Interests created under this Agreement if MD&C is satisfied (acting reasonably) that:

• (a) the Price has been irrevocably and unconditionally paid in full; and
• (b) if an Event of Default has occurred, MD&C has not sold or agreed to sell any Personal Property and is not deemed to have taken any Personal Property in satisfaction of the Price or obligations arising pursuant to a Security Interest or related document.

10.10 Power of attorney

For the purposes of the charge created at clause 10.1 above, the Client appoints MD&C as its attorney and authorises and directs MD&C to do all things necessary to perfect the charge created at clause 10.1 above, including but not limited to the execution of financing change statements.

10.11 Confidential Information

• (a) The parties agree that the Client is the debtor for the purposes of section 275(6)(a) of the PPSA and that the parties shall not disclose information of the kind mentioned in section 275(1) of the PPSA.
• (b) This clause 11.10(a) constitutes a confidentiality agreement for the purposes of section 275(6)(a) of the PPSA.

11. FORCE MAJEURE

11.1

Neither party will be in breach of this Agreement or liable for any failure or delay in the performance of its obligations under this Agreement (other than a payment obligation) to the extent that the failure or delay is wholly or partially caused, directly or indirectly, by a Force Majeure Event or any act or omission of the other party.

11.2

If this Agreement is no longer capable of being performed within a reasonable time after the Commencement Date due to a Force Majeure event or otherwise:

• (a) MD&C may terminate this Agreement by written notice to the Client and this Agreement will be at an end;
• (b) both parties must immediately discharge all of their financial and other obligations under this Agreement up to the date of expiration or termination of this Agreement; and
• (c) subject to clause 11.2(b) above neither party will have any further Claim against the other except in relation to prior breaches of this Agreement.

12. LIMITATION OF LIABILITY

12.1 Liability limited to Price or re-performance

• (a) Subject to 8.3 of this Agreement and clause 12.2 below, to the extent permitted by Law, any Liability of MD&C for any Claim however caused (including but not limited to by the negligent or reckless act or omission of MD&C, its employees, agents, contractors or subcontractors), suffered by the Client in connection with this Agreement or the Works is limited to:
• (i) re-performance or correction of the Works; or
• (ii) that part of the Price already paid by the Client to MD&C.

(b) The limitations set out in clause 12.1 above is an aggregate limit for all Claims, whenever made.

12.2 Consequential loss

To the extent permitted by Law, MD&C is not liable for any Consequential Loss however caused (including by the reckless or negligent act or omission of MD&C, its employees, agents, contractors and subcontractors), suffered or incurred by the Client in connection with this Agreement.

12.3 Seriousness or nature

For clarity, and without limiting clauses 12.1 or 12.2 above, the parties agree that clauses 12.1 or 12.2 apply in connection with a breach of this Agreement, anticipated breach of this Agreement and other conduct regardless of the seriousness or nature of that breach, anticipated breach or other conduct.

12.4 Application to indemnities

For clarity the limitations and exclusions of liability in this clause 12 apply to any Liability of MD&C under any indemnity given by MD&C under or in connection with this Agreement.

13. VARIATIONS AND ADDITIONAL COSTS

13.1 No obligation to vary

In no circumstances shall MD&C be obliged to depart from the Specifications of Works except as provided for under the terms of this Agreement.

13.2 Variation procedure

• (a) Without limiting clause 3.5 of this Agreement, in the event the Client requests and MD&C agrees (or MD&C requires and the Client agrees) to facilitate a departure from the Specifications the following procedure will apply:
• (i) MD&C will price the cost of the variation (‘Variation Price’);
• (ii) MD&C will provide the Variation Price to the Client for the Client’s consideration prior to commencing any work with respect to the variation requested;
• (iii) the Client must, within fourteen (14) Days of receipt of the Variation Price notify MD&C in writing as to whether the Client will proceed with the variation for the Variation Price (‘Acceptance of the Variation Price’); and
• (iv) If the Client does not provide Acceptance of the Variation Price as required by clause 13.2(iii), MD&C is under no obligation to undertake the variation and the Client releases MD&C from all Claims or Liability in this regard.

13.3 Fee adjustments for variations

If the Client notifies MD&C of its Acceptance of the Variation Price, scope of Works and Specifications will be varied accordingly and the Price will be adjusted as follows:

• (i) an increase to the Price as a result of an Acceptance of Variation Price where the work has commenced and for which payment has not previously been made; and
• (ii) a decrease in the relevant progress payment in respect of a variation which reduces the Price.

13.4 Unforeseen events treated as variations

If MD&C encounter unforeseen events or latent conditions during the course of undertaking the Works which may have a Material Affect on the work required, MD&C agrees to follow the procedure in clause 13.2 above.

13.5 Additional costs borne by the Client

The Client must pay (without limitation) to MD&C in addition to the Price, on demand or otherwise in accordance with this Agreement:

• (a) the amount of any GST payable by the Client in exchange for a valid Tax Invoice;
• (b) taxes (other than income tax and GST), stamp duty or other statutory charges or levies whether State or Federal payable in relation to the supply of the Works;
• (c) legal cost and disbursements on an indemnity basis incurred by MD&C in relation to a breach of this Agreement by the Client; and
• (d) all costs, charges, expenses or any other outgoings incurred by MD&C with respect to any Variation by the Client.

14. DISPUTE RESOLUTION

14.1 Dispute resolution process

If the parties to this Agreement are unable to agree on a matter of fundamental importance (‘Dispute’) and the parties are unable to resolve the Dispute within fourteen (14) Days of it initially arising, the parties must, in good faith, endeavour to resolve the Dispute expeditiously using informal dispute resolution techniques such as negotiation or similar techniques agreed to by them.

14.2 Referring Dispute to mediation

• (a) If the Dispute is not resolved within the expiration of a further fourteen (14) Days, either party may give notice to the other of their intention to refer the Dispute to mediation.
• (b) If the parties do not agree within five (5) Business Days of receipt of that notice as to:
• (i) the dispute resolution technique and procedures to be adopted;
• (ii) the timetable for all steps in those procedures; and
• (iii) the selection and compensation of the independent person required for such technique,

then the parties must mediate the Dispute in accordance with the mediation rules of the Australian Disputes Centre or a similar organisation agreed to by all parties, with the mediator to be selected by the president of the Australian Disputes Centre.

14.3 Costs

The parties must bear their own costs of dealing with any Dispute and the costs of any expert or mediator will be borne equally by the parties in Dispute.

15. GST

15.1 Interpretation

Any words capitalised in this clause and not already defined in this Agreement have the meaning given to those words in the GST Act.

15.2 Taxable supply

• (a) If the provision of the Works made under or in connection with this Agreement is a taxable supply, then at or before the time any part of the consideration for the Supply is payable:
• (i) MD&C may recover from the Client an amount equal to the GST payable on the supply (‘GST Amount’); and
• (ii) the Client must pay the GST Amount to MD&C on the date the relevant portion of the Fee is due or in exchange for a valid Tax Invoice.
• (b) For clarity, the GST payable under clause 15.2 above is correspondingly increased or decreased by any subsequent adjustment to the amount of GST owed in respect of the supply.

15.3 Progressive or Periodic Supply

Where a supply made under or in connection with this Agreement is a Progressive or Periodic Supply, clause 15.1 above applies to each component of the Progressive or Periodic Supply as if it were a separate supply.

16. TERMINATION

16.1 MD&C termination

• (a) Upon the occurrence of an Event of Default MD&C may give written notice to the Client requesting that the relevant Event of Default be remedied by the Client within seven (7) days after receipt of the notice.
• (b) MD&C may:
• (i) if the Event of Default has not been remedied within the timeframe stipulated in the notice contemplated by clause 16.1(a) above;
• (ii) where the Event of Default is not capable of remedy; or
• (iii) as otherwise provided for under this Agreement,

terminate this Agreement by written notice to the Client.

• (c) Should MD&C terminate this Agreement, termination is taken to occur on the date specified in the written notice of termination or if no date is specified immediately on giving the notice to the Client.

16.2 Client termination

The Client may also terminate this Agreement by providing one (1) months’ written notice to MD&C if MD&C:

• (a) commits a material breach of a fundamental term of this Agreement that has a material and adverse affect on the Client; and
• (b) fails to remedy that breach within fourteen (14) days of receiving written notice from the Client requiring MD&C to do so,

in which case this Agreement terminates immediately on giving the notice of termination

16.3 Payments upon termination

Should this Agreement be terminated prior to Completion and without limiting MD&C’s other remedies at Law, the Client agrees to pay MD&C a pro rata amount of the Price reflective of the Works completed by MD&C up to and including the time of termination.

16.4 Effect of termination

On termination of this Agreement accrued rights or remedies of a party are not affected.

16.5 Survival

Any indemnity or any obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.

17. PERSONAL GUARANTEE

17.1 Guarantee

• (a) As a condition of this Agreement the Guarantor agrees to Guarantee the Terms of Business of this Agreement, and any rights and obligations of the Client under the Agreement, and shall indemnify MD&C against loss or damage, that may arise from an Event of Default by the Client.
• (b) The Guarantor shall on demand made by MD&C pay all or any money payable by the Guarantor hereunder. Such demand may be made by providing notice to the Guarantor.
• (c) The Guarantor hereby guarantees the due observance, performance and fulfillment by the Client of the covenants, Terms of Business to be observed, performed and / or fulfilled under this Agreement by the Client.

17.2 Continuing Guarantee

This Guarantee shall be a continuing Guarantee and shall be irrevocable and shall remain in full force and effect until the obligations of the Client and/or Guarantor under this Agreement have been fully satisfied.

17.3 No waiver

This Guarantee shall not be considered as wholly or partially discharged by the payment at any time hereinafter of any monies on account or by any time credit or any indulgence or concession extended by MD&C to the Client, the Guarantor or any other person or by any compounding compromise, release, abandonment, waiver, variation, relinquishment, renewal of any rights by MD&C against the Guarantor or any other person or by the neglect or omission of MD&C to enforce any such rights or by any other dealing, matter or thing whatsoever which but for this paragraph could or might operate or abrogate prejudice or affect this Guarantee or by any alteration, modification, variation or addition to this Agreement.

17.4 No prejudice to rights and securities

• (a) This Guarantee is in addition to and not in substitution for any other rights which MD&C may have under or by virtue of this Agreement and may be enforced against the Guarantor without first having recourse to any such rights and without taking any steps or proceedings against the Guarantor.
• (b) This Guarantee shall not prejudicially affect or be prejudicially affected by any security or Guarantee now or hereafter held by MD&C for any moneys for the time being owing pursuant to this Agreement but such security shall be deemed to be collateral and the Guarantor shall not as against MD&C in any way claim the benefit or seek the transfer of any security wholly or partially.

17.5 Right of subrogation

MD&C and the Guarantor acknowledge and agree that if the Guarantor rectifies any default or makes good any damage or loss suffered by MD&C by reason of any breach of, or failure by the Client to perform any covenant term or condition of this Agreement, the Guarantor shall, if the Guarantor so desires and on written notice to MD&C be subrogated to the rights of the Client hereunder to the exclusion of the Client.

17.6 Joint and several liability

Where there is more than one Guarantor then the obligations of those so named are joint and several.

18. ASSIGNMENT

18.1 Neither party may assign, in whole or in part, or novate their rights or obligations under this Agreement without the prior written consent of the other party.

18.2 Where MD&C assigns their rights or obligations under this Agreement, the Client agrees that MD&C is released from any liability or ongoing obligations.

19. MISCELLANEOUS

19.1 Time of the Essence

Time is of the essence of the Client’s obligations to pay the Price pursuant to the Payment Terms and to undertake the Client’s Works.

19.2 Contra Proferentem

The contra proferentem rule and other rules of construction will not apply to disadvantage a party whether that party put the clause forward, was responsible for drafting all or part of it or would otherwise benefit from it.

19.3 Waivers

A party does not waive a right, power or remedy if it fails to exercise or delays in exercising the right, power or remedy. A single or partial exercise of a right, power or remedy does not prevent another or further exercise of that or another right, power or remedy. A waiver of a right, power or remedy must be in writing and signed by the party giving the waiver.

19.4 Governing Law

• (a) This Agreement is governed by the laws of Queensland and the parties submit to the non-exclusive jurisdiction of courts exercising jurisdiction in Queensland.

19.5 No merger

The rights and obligations of the parties under this Agreement do not merge on completion of any transaction contemplated by this Agreement.

19.6 Relationship

Except where this Agreement expressly states otherwise, it does not create a relationship of employment, trust, agency or partnership between the parties.

19.7 Entire Agreement

This Agreement contains all the contractual arrangements of the parties with respect to the items to which it relates, and supersedes all earlier conduct (including any agreements in relation thereto) by the parties with respect to those items.

19.8 Electronic Communication

The parties agree and acknowledge that their representatives may communicate utilising electronic communication and the laws governing electronic communication in the relevant state of the party receiving the electronic communication will apply.

19.9 Notices

• (a) A notice, consent, approval or other communication (each a 'notice') under this Agreement must be signed by or on behalf of the person giving it, addressed to the person to whom it is to be given and:
• (i) delivered to that person's address;
• (ii) sent by pre-paid mail to that person's address; or
• (iii) transmitted by facsimile or email to that person's address.
• (b) A notice given to a person in accordance with this clause is treated as having been given and received:
• (i) if delivered to a person's address, on the day of delivery if a Business Day, otherwise on the next Business Day;
• (ii) if sent by pre-paid mail, on the third Business Day after posting; or
• (iii) if transmitted by facsimile to a person's address and a correct and complete transmission report is received, on the day of transmission if a Business Day, otherwise on the next Business Day;
• (iv) if sent by email, immediately after the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives, within a 30 minute period after it is sent an automatically generated email or notification advising that the Notice has not been delivered, was rejected or otherwise not received by the recipient, but if the delivery is not on a Business Day or is after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.
• (c) For the purposes of this clause 19.11 the address of a party, is the address referred to either above in the title of the Agreement or if not referred to in the title of the Agreement then in the Schedule of the Agreement.

19.10 Interpretation

In this Agreement:

• (a) a reference to a defined term defined clause 1 is given that meaning;
• (b) the meaning of any general language is not restricted by any accompanying example, and the words ‘includes’, ‘including’, ‘such as’ or ‘for example’ (or similar phrases) do not limit what else might be included;
• (c) a reference to this Agreement includes the agreement recorded by this Agreement;
• (d) this Agreement is not to be interpreted against the interests of a party merely because that party proposed this Agreement or some provision in it or because that party relies on a provision of this Agreement to protect itself; and
• (e) a reference to a party is a reference to MD&C or the Client, and a reference to the parties is a reference to both MD&C and the Client

This privacy policy will explain how our organisation uses the personal data we collect from you when you use our website.

Download the Mosh DC Privacy Policy Topics:

• What data do we collect?
• How do we collect your data?
• How will we use your data?
• How do we store your data?
• Marketing
• What are your data protection rights?
• What are cookies?
• How do we use cookies?
• What types of cookies do we use?
• How to manage your cookies
• Privacy policies of other websites
• Changes to our privacy policy
• How to contact us
• How to contact the appropriate authorities

What data do we collect? Mosh DC collects the following data:

Personal identification information (Name, email address, phone number, etc.)

How do we collect your data?

You directly provide Mosh DC with most of the data we collect. We collect data and process data when you:

• Register online or place an order for any of our products or services.
• Voluntarily complete a customer survey or provide feedback on any of our message boards or via email.
• Use or view our website via your browser's cookies.

Mosh DC may also receive your data indirectly from the following sources:

• Instagram
• Facebook
• Linked In
• Pinterest

How will we use your data?

Mosh DC collects your data so that we can:

• Process your enquiries, orders & manage your account.
• Email you with special offers on other products and services we think you might like.
• Respond to your enquiries about our services

If you agree, Mosh DC will share your data with our partner companies so that they may offer you their products and services.

When Mosh DC processes your enquiry or work order, it may send your data to, and also use the resulting information from, credit reference agencies to prevent fraudulent purchases.

How do we store your data?

Mosh DC securely stores your data on its Google cloud based mail server & at 8 Villiers Dr, Currumbin Waters QLD 4223.

Mosh DC will keep your email address & name for 3 years. Once this time period has expired, we will delete your data from all cloud based, digital & physical storage methods.

Marketing

Mosh DC would like to send you information about products and services of ours that we think you might like.

If you have agreed to receive marketing, you may always opt out at a later date.

You have the right at any time to stop Mosh DC from contacting you for marketing purposes or giving your data to others.

If you no longer wish to be contacted for marketing purposes, please email us: admin@moshdc.com

What are your data protection rights?

Mosh DC would like to make sure you are fully aware of all of your data protection rights. Every user is entitled to the following:

• The right to access - You have the right to request Mosh DC for copies of your personal data. We may charge you a small fee for this service.
• The right to rectification - You have the right to request that Mosh DC correct any information you believe is inaccurate. You also have the right to request Mosh DC to complete information you believe is incomplete.
• The right to erasure - You have the right to request that Mosh DC erase your personal data, under certain conditions.
• The right to restrict processing - You have the right to request that Mosh DC restrict the processing of your personal data, under certain conditions.
• The right to object to processing - You have the right to object to Mosh DC’s processing of your personal data, under certain conditions.
• The right to data portability - You have the right to request that Mosh DC transfer the data that we have collected to another organization, or directly to you, under certain conditions.
• If you make a request, we have one month to respond to you. If you would like to exercise any of these rights, please contact us at our email: admin@moshdc.com
• Call us at: (07) 5593 6999
• Or write to us: Mosh DC 8 Villiers Dr, Currumbin Waters QLD 4223

What are cookies?

Cookies are text files placed on your computer to collect standard Internet log information and visitor behaviour information. When you visit our websites, we may collect information from you automatically through cookies or similar technology.

For further information, visit allaboutcookies.org.

How do we use cookies?

Mosh DC uses cookies in a range of ways to improve your experience on our website, including:

• Keeping you signed in
• Understanding how you use our website

What types of cookies do we use?

There are a number of different types of cookies, however, our website uses:

• Functionality – Mosh DC uses these cookies so that we recognize you on our website and remember your previously selected preferences. These could include what language you prefer and location you are in. A mix of first-party and third-party cookies are used.
• Understanding how you use our website
• Advertising – Mosh DC uses these cookies to collect information about your visit to our website, the content you viewed, the links you followed and information about your browser, device, and your IP address. Mosh DC sometimes shares some limited aspects of this data with third parties for advertising purposes. We may also share online data collected through cookies with our advertising partners. This means that when you visit another website, you may be shown advertising based on your browsing patterns on our website.

How to manage cookies

You can set your browser not to accept cookies, and the above website tells you how to remove cookies from your browser. However, in a few cases, some of our website features may not function as a result.

Privacy policies of other websites

The Mosh DC website may contain links to other websites. Our privacy policy applies only to our website, so if you click on a link to another website, you should read their privacy policy.

Changes to our privacy policy

Mosh DC keeps its privacy policy under regular review and places any updates on this web page. This privacy policy was last updated on 10 July 2020.

How to contact us

If you have any questions about Mosh DC's privacy policy, the data we hold on you, or you would like to exercise one of your data protection rights, please do not hesitate to contact us.

• Email us at: admin@moshdc.com
• Call us at: (07) 5593 6999
• Or write to us: Mosh DC 8 Villiers Dr, Currumbin Waters QLD 4223

How to contact the appropriate authority

Should you wish to report a complaint or if you feel that Mosh DC has not addressed your concern in a satisfactory manner, you may contact the Australian Information Commissioner's Office. www.oaic.gov.au