building service agreement

102 James St, Aircon by Design 01 July 2020

Building Service Agreement

SERVICES Airconditioning maintenance – New installation only

PREMISES 102 James St, Northbridge

COMMENCEMENT DATE

1 July 2020 DATE FOR COMPLETION 30 June 2021

FEE

Fee $1,688.00

Perform Quarterly services

GST $168.80 Annum X

TOTAL $1856.80

PAYMENT INTERVALS

Quarterly service intervals Plus 1X ONE YEAR OPTION INVOICING ADDRESS Work Request System portal (WRS)

AGREEMENT The Agreement consists of this document and the following documents: 1. Building Services Agreement

2. Standard Terms & Conditions

3. Schedule of Services – Annexure “A”

PRINCIPAL: Jimmat Property Pty Ltd 102 James St, Northbridge

Authorised Representative

Address

Colliers International (WA) L26 197 St Georges Tce Perth 6000

ABN 58 169 795 126 Telephone 08 9261 6666

Executed as an agreement by its authorised representative

Signature of Authorised representative

Name(print)

Date

Signature of Authorised representative

Name(print)

Date

CONTRACTOR Aircon By Design Address

Unit 2, 10Boag Place, Morley WA 6062

ABN 78 137 404 007 Contractor’s Representative Mark Berkelmans

Telephone 9275 3800 Email Address [email protected]

Executed as an agreement by under Section 127 of the Corporations Act 2001 (Cth)

Signature of Director/Company Secretary

Name(print)

Date

Signature of Director/Company Secretary

Name(print)

Date

MARK BERKELMANS 29/7/2020

Clint Walton - Property Manager 29/07/2020


Standard Terms and

Conditions of Contract


TABLE OF CONTENTS

PART 1 - THE SERVICES OR THE WORK 5

1.1 Provision of Services or work 5

1.2 Commencement, Period and Level of Services / Work 5

1.3 Changes to Services 5

1.5 Property Conditions 5

1.6 Property - Heritage 5

1.7 Equipment 6

1.8 Subcontracting 6

PART 2 - STANDARD OF CARE OF SERVICES 6

2.1 Professional Service 6

2.2 Responsibility for Services 6

2.3 Warranty as to Performance 7

PART 3 - PERFORMANCE OF THE SERVICES 7

3.1 Performance 7

3.2 Performance Review 8

3.3 Statutory Requirements 9

3.4 Safety and Environmental Matters 9

3.5 Cleaning and Removal of Waste 10

3.6 Equal Opportunity 10

3.7 Smoke Free Workplace 10

3.8 Access to Records 10

3.9 Access to Property for Inspection Purposes 11

PART 4 - RESOURCES AND PERSONNEL 11

4.1 Contractor's Supervisor 11

4.2 Personnel 11

4.4 Personnel Training 12

4.5 Facilities to be Provided 12

4.6 Personnel Uniforms 12

4.7 Industrial Relations 12

4.8 Industrial Disputes 13

PART 5 - INDEMNITY AND INSURANCE 13

5.1 Indemnity by Contractor 13

5.2 Insurance 13

5.3 Microprocessor Based Systems 14

PART 6 - PAYMENT 15

6.1 The Fee 15

6.2 Budget Allowances 15

6.3 Fee Payable in Instalments 15

6.4 Fees for Changes to Services or Property 15

6.5 Payment of Fee 16


6.6 Tenant Services 16

6.8 Taxes 16

PART 7 - TERMINATION 17

7.1 Termination for Breach 17

7.2 Termination for Insolvency 18

7.4 Failure to Meet Performance Standards 19

7.5 Contractor's Fee on Termination 19

7.6 Materials, Drawings, Documents, Software and Other Property 19

7.7 Transitional Arrangements 19

PART 8 - SETTLEMENT OF DISPUTES 20

8.1 Dispute Resolution 20

PART 9 - GENERAL 20

9.1 Assignment 20

9.2 Notices - When Received 20

9.3 Notices 20

9.4 Waiver, Severability 21

9.5 Advertising 21

9.6 Public Announcements 21

9.7 Confidentiality and Privacy 21

9.8 Conflicts of interest 21

9.9 Keys 22

9.10 Amendments to this Agreement 22

9.11 Independent Contractor 22

9.12 Survival 22

9.13 Governing Law 22

9.14 Intellectual Property 22

9.15 Interpretation 23

PART 10 - OPTION TO EXTEND TERM 24

Appendix A - Schedule of Service 25


PART 1 - THE SERVICES OR THE WORK

1.1 Provision of Services or work

The Contractor must provide the Services or the Work, as the case may be, for the benefit of Colliers.

The term ‘Services’ where used in this Agreement includes ‘Work’.

The Contractor must carry out and complete the Services and any changes to the Services directed by

Collier.

1.2 Commencement, Period and Level of Services / Work

(a) The Contractor must either:

(i) Commence the provision of the Services not later than the Date for Commencement and must

continue providing the Services for the Term; or

(ii) Commence the provision of the Work not later than the Date for Commencement and continuously

and diligently carry out the Work and complete the Work by the Date for Completion;

(b) The Contractor acknowledges that different aspects of the services (or levels of the Services) may be

required to be provided during business hours and in non-business hours and the Contractor must provide the

services accordingly.

1.3 Changes to Services

Colliers International Representative/s may by written notice from time to time instruct the Contractor:

(a) to make reasonable changes to the services (including additions, omissions or reductions); or

(b) that the size, scope, nature or part of the property in respect of which the Services are to be

performed has changed.

The Contractor must perform the changed Services or perform the services in respect of the changed

property (as applicable) within any time instructed by Colliers International.

The amount payable to the Contractor for any changes will be determined in accordance with Clause 6.4

below.

1.4 Continuous Improvement Programme

The Contractor must implement a continuous improvement program acceptable to the Colliers in the provision

of the Services. The aim of the program must be the identification to Colliers International of the areas and

ways in which the provision of the services can be improved.

1.5 Property Conditions

The Contractor is deemed to have inspected the property and is aware of all conditions (whether physical,

industrial or otherwise) of, or relating to, the property and acknowledges that the fees and services take into

account those conditions.

1.6 Property - Heritage

In the event that the property is of recognised heritage significance and is listed on the Register of the

National Estate or the Commonwealth Heritage List, the Contractor shall at its own cost seek advice from a

recognised heritage consultant in respect of provision of the Services under this Agreement.


This advice shall include, but not be limited to, providing advice as to whether any heritage approvals are

required in respect of Work to be undertaken at the Property.

1.7 Equipment

If Colliers International makes available equipment for use by the Contractor in the provision of the services

which is damaged or requires repair as a result of the misuse of or inadequate or improper maintenance by

the Contractor then, at Colliers International’s option, the Contractor must:

(a) reimburse any costs or expenses incurred by Colliers in carrying out the repair, maintenance or

replacement of the equipment; or

(b) carry out all necessary repairs, maintenance or replacement of the equipment.

1.8 Subcontracting

The Contractor must not assign or subcontract the Services or any part of the Services without the prior

written approval of Colliers International. Colliers International approval may be given or refused in its

absolute discretion. In the event that part or all of the services are subcontracted, the Contractor will remain

fully responsible to Colliers International in respect of the services carried out by such sub-contractor and the

subcontractor’s compliance with this agreement.

PART 2 - STANDARD OF CARE OF SERVICES

2.1 Professional Service

The Contractor must perform the services:

(a) in accordance with this Agreement;

(b) with the diligence and care expected of a professional experienced in providing services of this type;

and

(c) in accordance with industry best practice and all applicable law and legislation.

The Contractor must have in place management systems which enable it to demonstrate to Colliers

International its adherence to this requirement.

2.2 Responsibility for Services

The giving of any directions, approvals, instruction or information by Colliers International and compliance with

the same by the Contractor will not relieve or reduce the Contractor's sole responsibility for the performance

of the services in accordance with this Agreement unless within 7 days of the giving of directions, approvals,

instruction or information by Colliers International, the Contractor has notified Colliers International that the

directions, approvals, instruction or information are in its opinion unreasonable. If Colliers International

disagrees that the directions, approvals, instruction or information are unreasonable then the dispute will be

resolved under clause 8.


2.3 Warranty as to Performance

The Contractor warrants to Colliers International that all materials, workmanship and methods used by the

Contractor will:

(a) be suitable in all respects for their intended purposes;

(b) be carried out in a proper and workmanlike manner;

(c) in relation to any goods, be free of all charges, liens and encumbrances and that the Contractor has

a good and unencumbered title to them and that no patent or other intellectual property right is

infringed by the supply of any goods;

(d) meet the requirements of Colliers International as set out in this agreement; and

(e) comply with all applicable:

(i) legislation; and

(ii) when providing services in a particular country, all applicable federal and local laws,

statutes, regulations, rules and ordinances (including, but not limited to, Australian

Standards); and

(iii) any requirement of any Authority, including, without limitation, the maintenance of all

permits, licenses, authorities and consents.

Before doing any act or thing in execution or performance of the Services and during the progress thereof the

Contractor must take all reasonable precautions to prevent injury to any person or damage to any property

being upon or in the vicinity of the Property.

PART 3 - PERFORMANCE OF THE SERVICES

3.1 Performance

In performing the services the Contractor must:

(a) comply with the reasonable directions of Colliers International relating to performance of the Services

in the form and at the time required by Colliers;

(b) attend meetings, provide information and reports to Colliers International upon request or as

otherwise may be required under this Agreement, as to the manner and timing of performance of the

services;

(c) immediately advise and inform Colliers International of:

(i) any emergency or other event that may affect Colliers International or the Owner, including

without limit any event or claim that may involve insurance claims or litigation; and

(ii) any changes in current best practices, legislation, regulations, standards or authority

requirements which relate to the services whether or not those changes directly require any

alteration to the services or the Contractor's work practices; and


(d) implement management systems (including without limitation those contemplated by clauses 3.3, 3.4,

3.5 and 4.4) which demonstrate to Colliers International’s satisfaction that the Contractor has

assessed, will continue to monitor and will ensure appropriate standards are achieved for:

(i) the management of the provision of the services;

(ii) its personnel quality;

(iii) the provision of a safe and healthy work place and environment;

(iv) compliance with relevant performance standards;

(v) the benchmarking of the provision of the services against industry and regulatory

benchmarks and the provision of the services at a best practice standard;

(vi) a continuous improvement program; and

(vii) a risk management program which complies with the requirements of AS/NZS 4360 if the

property is located in Australia, otherwise an applicable, equivalent standard in the

jurisdiction in which the Services are being supplied, and maintain a register of all risk

assessments, ensuring that all Contractor’s personnel abide by the methodology detailed for

each task and provide an electronic copy of the register to Colliers International with regular

updates as necessary;

(viii) risk reduction for the Owner;

(ix) preservation of asset value; and

(x) reduction in operating costs.

The risk management program referred to in (vii) above must be provided prior to commencement of the

provision of the services to the Property.

These management systems must include self-assessment records for workplace inspections, target dates,

responsible persons and reporting on status of acts and items.

3.2 Performance Review

The Contractor acknowledges that this Agreement requires the Services to continuously achieve the

performance standards required by this Agreement and that Colliers International may conduct 3 monthly

reviews of the Contractor's performance. The review may include an assessment of the Contractor's

performance of all or any of the Services or its obligations under this Agreement. The Contractor’s

performance will be graded as follows:

(a) unacceptable;

(b) acceptable;

(c) excellent.

The Contractor must do all things necessary to assist Colliers International in carrying out any review.

Colliers International may, in its absolute discretion, make details of any review it conducts available to the

Contractor.


3.3 Statutory Requirements

The Contractor must:

(a) comply with and give all notices required by any applicable law, legislation or by an Authority which

has jurisdiction affecting the services or the Contractor's personnel;

(b) pay fees or charges payable or demandable under any applicable law, legislation or by an Authority

in respect of the services or the Contractor's personnel; and

(c) pay all fines and penalties whether imposed on Colliers International or the Contractor as a result of

any act or omission of the Contractor or persons employed by it or for whom it is responsible.

3.4 Safety and Environmental Matters

(a) Responsibility for Safety and Environmental Matters:

(i) The Contractor acknowledges and agrees that the overall co-ordination of safety and

environmental matters relating to the Property including those which may affect the

Contractor's personnel will be exercised by Colliers. This does not relieve the Contractor of

its responsibilities relating to its personnel or the Services.

(ii) The Contractor must at all times exercise all necessary precautions for the safety of all

persons on the Property and the public, and the protection of the environment.

(b) Compliance with relevant legislation:

Throughout the Term, the Contractor must comply with all applicable law, legislation and requirements of

Authorities and directions by Colliers International in relation to safety and environment matters and safety

and environmental best practice guidelines (as amended or replaced from time to time) issued by Colliers

International. The Contractor must advise Colliers International of any requirement of legislation or of an

Authority which differs from the requirements of Colliers safety or environmental best practices guidelines (as

amended or replaced from time to time).

(c) Contractor Self-Assessment

The Contractor must, unless agreed to by Colliers International, implement and supply to Colliers

International, a copy of the Contractor's safety and environmental management plans. These plans must:

(i) detail any possible safety and environmental risks associated with the Services;

(ii) evaluates those risks;

(iii) detail risk management practices the Contractor has in place to eradicate or reduce those

risks to acceptable levels; and

(iv) be supplied to Colliers International prior to the Contractor commencing the services at the

property.

(d) OH&S and E Meetings

The Contractor must attend any safety and/or environment meetings called by Colliers International.

(e) Class 1 and Class 2 Occurrences


The Contractor must within 3 days of any actual or potential Class 1 or actual Class 2 event, submit to Colliers

International a written report:

(i) providing details of any injuries to personnel, damage to property or the environment;

(ii) addressing the potential for the event to re-occur;

(iii) providing a copy of a report on a preliminary investigation conducted by the Contractor

including any deficiency in the Contractor's safety and environmental management plan

which led to the event and the recommended corrective actions for the rectification of the

deficiency;

(iv) providing a copy of any notice required to be sent by the Contractor to an Authority; and

(v) in the event of any environmental damage or pollution, providing details of the clean-up

operations necessary to restore the environment to its previous state.

(f) Occupational Health & Safety

The Contractor must comply with the provisions of the Western Australian Occupational Safety and Health

Act 1984 and the Occupational Safety and Health Regulations 1996 supported by code of practice, guidance

notes and Australian Standards and any requirements of Worksafe Western Australia.

(g) Where the OHS Act and OHS Regulations do not apply, the Contractor shall comply with all

equivalent and applicable legislation.

3.5 Cleaning and Removal of Waste

The Contractor must keep its workplace neat and tidy and must remove its rubbish and waste from the

Property as and when required by Colliers International. If the Contractor fails to comply with this clause then

Colliers International may do whatever is necessary to carry out or have carried out the matters referred to in

this clause and Colliers may deduct the cost thereof from any payments which are due to the Contractor

under this Agreement. The Contractor must demonstrate to Colliers International’s satisfaction that it

complies with all relevant legislation when disposing of rubbish and waste.

3.6 Equal Opportunity

The Contractor must ensure equal opportunity for all its employees.

3.7 Smoke Free Workplace

The Contractor must not allow any of its employees or agents to smoke whilst on the property.

3.8 Access to Records

The Contractor shall:

(a) upon reasonable notice from Colliers International provide to Colliers International and either its

auditors or the Owner’s auditors, access to the books and records relating to this Agreement and the

provision of the Services for the purpose of satisfying audit, treasury and other requirements;

(b) at any time, provide to Colliers International and the Owner any information relating to the Property in

a form directed by Colliers International and any assistance as Colliers International may require to

enable it to respond to requests:


(i) from Government and Parliamentary questions and the Ombudsman; and

(ii) made under the Freedom of Information Act 1982.

3.9 Access to Property for Inspection Purposes

The Contractor shall:

(a) upon reasonable notice from Colliers International, provide access to the property for the purpose of

either Colliers International or the Owner inspecting the property and the Services; and

(b) do all such things necessary to facilitate any such inspection.

PART 4 - RESOURCES AND PERSONNEL

4.1 Contractor's Supervisor

The Contractor warrants that the Contractor’s supervisor has authority to act on behalf of the Contractor in all

matters relating to the Services except those matters for which another representative of the Contractor is

nominated under this Agreement. The Contractor must ensure that at all times during the performance of the

Services the Contractor's supervisor is on call. Any instructions given to the Contractor's supervisor by

Colliers will be deemed to be given to the Contractor. The Contractor must not change the supervisor without

Colliers International written consent, which must not be unreasonably withheld.

4.2 Personnel

(a) The Contractor must provide personnel necessary to perform the services in accordance with its

obligations under this Agreement.

(b) The Contractor must ensure that its personnel are responsible representatives of the Contractor and

are professional, courteous and responsive to tenants, customers and visitors to the property and

Colliers International.

(c) Any personnel of the Contractor who Colliers International deems are not producing a high standard

of customer service, or who are proven to the reasonable satisfaction of Colliers International to have

been stealing, drinking alcohol, using non-prescription drugs, lying, committing any crime or who use

an aggressive, violent or other unacceptable manner, must be removed from the property

immediately by the Contractor.

(d) The Contractor must not replace permanent personnel with casual employed personnel except with

the written permission of Colliers International.

(e) Colliers International may direct the Contractor to remove from the Property (so as not to have any

further connection with the performance of the Services) any personnel engaged by the Contractor

who misconduct themselves or who are incompetent or negligent in the performance of their duties or

who Colliers International considers are undesirable to perform the Services. The Contractor must

comply with such direction within the time specified by Colliers International.

4.3 Qualification and Screening of Personnel

(a) The Contractor must ensure and demonstrate to Colliers International that its personnel are

competent and experienced in the type of work they are undertaking. Evidence of the qualifications

and job history of its personnel must be made available to Colliers if requested by Colliers


International at least 10 days prior to its personnel commencing work on the Property. All personnel

are to be appropriately qualified in the applicable trade.

(b) If Colliers International requests, the Contractor must ensure that its personnel consent to and co-

operate with any security or other screening procedures as directed by Colliers International.

(c) The Contractor must obtain any consents required under the Privacy Act 1988 (if any) and any

reference, police or other checks.

4.4 Personnel Training

The Contractor must demonstrate to Colliers International that it has in place a management system which

ensures that all of its personnel undergo appropriate training programmes which are necessary for the

provision of the Services in accordance with this Agreement or which are required by Colliers International.

Training will include, but will not be limited to, occupational health and safety, environment and customer

service. All training will be at the Contractor's cost with the exception of specific equipment supplied under

this Agreement or otherwise utilized by the Contractor in delivering the Services and each component of it or

other property related training provided by Colliers International. The Owner will not be responsible for

payment of the Contractor's personnel's wages or salaries whilst attending any training courses.

4.5 Facilities to be Provided

Colliers International must provide the facilities stated in the schedule (if any) to the Contractor.

4.6 Personnel Uniforms

The Contractor:

(a) must provide personnel with uniforms;

(b) will be responsible for the cost of providing and maintaining the uniforms to the highest standard;

(c) must ensure at all times uniforms worn by its personnel are neatly pressed and clean;

(d) must ensure shoes worn by its personnel are polished and clean; and

(e) must ensure that its personnel are neatly groomed.

If Property specific uniforms are required, then the Contractor must provide samples of the Property specific

uniforms to Colliers International for approval at least one month prior to commencing the Services.

4.7 Industrial Relations

The Contractor:

(a) is responsible for industrial matters concerning its personnel including a matter or thing affecting or

relating to the privileges, rights, duties or obligations of employers or employees in an industry and

includes, without limitation, matters relating to conditions of employment, employers’ and employee’s

rights, award conditions, enterprise bargaining agreements, strikes, lockouts, wage rates, union

membership or union relations, industrial agreements and industrial disputes

(b) must consider advice and must comply with directions in respect of industrial matters which Colliers

International may give from time to time.


The Contractor must supply evidence to Colliers International reasonable satisfaction that it has in place an

industrial relations policy which satisfies the requirements of any relevant Authority and which fosters optimum

performance from staff.

4.8 Industrial Disputes

(a) The Contractor indemnifies and agrees to keep indemnified Colliers International and the Owner from

and against all losses, damages, payments, costs or expenses whatsoever suffered or incurred by

Colliers International or the Owner and caused or contributed to by an industrial or other dispute

involving the Contractor’s personnel.

(b) If the Contractor is unable to perform its obligations under this Agreement due to an industrial dispute

involving its personnel, then without in any way affecting Collier’s rights under Clause 7, Colliers may

at its option employ another Contractor to perform the services.

(c) Notwithstanding (a) and (b) of this Clause 4.8, the Contractor must use reasonable endeavors to

resolve any industrial or other dispute involving its personnel so as to ensure that the provision of the

services is not affected.

PART 5 - INDEMNITY AND INSURANCE

5.1 Indemnity by Contractor

The nominated contractor shall indemnify the customer from any loss or damage suffered by the customer

arising out of an act or omission by the nominated service contractor in the performance of its obligations

under the contract, in respect of:

(a) A breach by the nominated contractor of its obligations under the contract for which a remedy is not

provided for under any other term of the contract;

(b) Personal injury or death of any person; or

(c) Damage to property of the customer or any third party

The indemnity shall be reduced to the extent that the loss or damage was caused by an act or omission of the

customer.

To the maximum extent permitted by law, the nominated contractor shall not be liable under this clause for

any special, indirect, consequential or pure economic loss, including but not limited to, loss of profit, loss of

rental of loss of income.

5.2 Insurance

(a) The Contractor must maintain the insurance set out below from the Date of Commencement and for

a period of 6 years after the end of the Term in a form appropriate to the Contractor’s activities and

on terms and with a reputable insurer acceptable to the Owner:

(i) Public and Products Liability Insurance for not less than $20,000,000 in respect of accidents

or incidents arising out of or in the course of or caused by the performance of the Services;

and


(ii) Workers Compensation Insurance in accordance with legislation and awards applicable to

the State or Territory or Country in which the Services are to be performed and in which the

Contractor employs persons together with, if not prohibited by law, cover for common law

liability for not less than the amount set out in the schedule; and

(iii) Professional Indemnity Insurance (where appropriate) for not less than $5,000,000 in

respect of legal liability arising from a breach of professional duty whether owed in contract

or otherwise; and

(iv) Property Insurance coverage for tools and equipment brought onto and/or used on any

property by the Contractor in an amount equal to the replacement cost of all such tools and

equipment; and

(b) The Contractor’s insurance shall be primary and ensure that Colliers International and the Owner’s

insurance, if any, is secondary and non-contributory.

(c) The Contractor must provide evidence of the terms, currency and renewal (within seven days of the

due date for renewal) of the insurances referred to above to Colliers International as requested by

Colliers International.

5.3 Microprocessor Based Systems

(a) If computer software is provided, the Contractor will license Colliers International and the Owner to

use that software during the time that the equipment is in use at the Property and if required by

Colliers International will duly execute an escrow agreement in the form required by Colliers

International for all documentation and the code for the software, including regular updates, which

are necessary for the equipment system operation. The terms of the escrow agreement will allow

this information to be released to Colliers International and the Owner should the Contractor become

insolvent, or be taken over by another company and that company ceases to support the equipment

and will require that the Contractor supply all parts, passwords, software (including upgrades and

variations) technicians and technical expertise necessary for the continued effective operation of the

system at the same reasonable cost as is charged to the Contractor’s other commercial customers

should another company or entity take over the responsibility for maintenance of the software during

the time that the software is in use at the property.

(b) The Contractor will give written advice to Colliers International of any changes to or revisions of the

installed software (“upgrades”). The Contractor will install and commission such upgrades on receipt

of Colliers approval. The Owner agrees that upgrades do not include variations to the software that

require more than a simple download to install. All variations will be advised to Colliers by the

Contractor and if Colliers International requests installation of a variation, that variation will be

supplied and installed at the Contractor’s cost.

(c) Where upgrades and variations are approved by Colliers International and commissioned by the

Contractor, that installation will be fully documented, identified with the version identification and the

escrow agreement will be amended to incorporate appropriate references to the upgrades and

variations. The Contractor will provide Colliers International with a description of the changes made

in each upgrade. The Contractor must duly execute any variation agreement required by Colliers

International.

(d) The Contractor will provide the scheduled number of back up sources for the software. Each source

shall consist of a boxed set of RAM, ROM and EPROM chips or similar firmware loaded with the


functional software for the specific installation. One source shall be site identified and retained by the Contractor, ready for use. The second source shall be lodged as directed by the escrow agreement.

PART 6 - PAYMENT

6.1 The Fee

(a) Subject to the provisions of Clauses 6.1(b), 6.5 and 6.8(b) and to the proper performance of the

Services, Colliers International must pay the Fee to the Contractor at the times and in the manner set

out in this agreement.

(b) Notwithstanding any other provision of this Agreement, Colliers International will not be required to

make a payment to the Contractor unless prior to the due date of each payment the Contractor has

provided to Colliers a statement in the form required by Colliers International stating that all

remuneration payable to the Contractor’s employees and subcontractors in relation to work done in

connection with the Agreement has been paid.

6.2 Budget Allowances

All materials and services required for the provision of the Services are deemed to be included in the Fees.

6.3 Fee Payable in Instalments

(a) Throughout the Term, the Contractor may submit to Colliers International an invoice (that complies

with clause 6.8(b)) once each month (not before the 15th day of the month) for equal installments of

the then unpaid amount of the Fee payable for that Period; and

(b) Each invoice must be in the form of a tax invoice accompanied by information and documentary

evidence sufficient to allow Colliers International to verify each invoice to its satisfaction.

6.4 Fees for Changes to Services or Property

(a) If Colliers International instructs a substantial change to the Services or a change to the Property

under clause 1.3 then the Fee will be increased or decreased (as the case may require) by a

reasonable amount in respect of the change to the Services or the Property. Where the change is a

one off change or only affects the performance of the Services during one or more (but not all)

Periods the adjustment to the Fee will only apply during that Period or Periods. In determining the

reasonable amount regard shall be had to reasonable rates for the type of Services required. If the

parties are unable to agree on the reasonable amount then it shall be determined under clause 8.

(b) If the change involves Additional Services which will not be provided throughout the unexpired period

of this Agreement then the Contractor may submit an invoice to Colliers International for the relevant

component of the Fee in respect of the Additional Services at the completion of the provision of the

Additional Services.

(c) If there is an change in legislation, Australian Standard or government agency requirement after the

date of this Agreement in a manner which compliance with will increase the cost to the Contractor of

performing the Services, then the Contractor must as soon as it becomes aware of the change, notify

Colliers International of the anticipated costs (if any) of complying with the change and provided

Colliers International directs the Contractor to change the Services to comply with the change, then

Colliers International will pay the Contractor the reasonable costs incurred by the Contractor of

complying with the change. For the purposes of this clause a change does not include a change to


any taxation laws, Federal or State, or any change in the rate, amount of or manner of collecting any

tax, duty charge or imposition and does not include any change to any law governing employment or

trade unions including without limitation any change to making of an award.

(d) Notwithstanding any other provision to the contrary, Colliers International may require the

performance of Additional Services for a Fee to be negotiated between the parties. The Contractor

shall use its best endeavors to comply with each request for Additional Services although Colliers

International has the right to seek competitive quotes and award any Additional Services to any

service provider and is not obliged to use the Contractor for the provision of Additional Services.

6.5 Payment of Fee

Colliers International will assess each invoice submitted to it and must pay that part of the Fee it is satisfied is

due to the Contractor for either the relevant part of the Period in respect of the Services, or for the Works by

reference to the extent to which the Work has been completed. Payment must be made within 28 days of

receipt of each invoice unless the Contractor has failed to perform the Services or Work in accordance with

the Agreement (including changes to the Services) in which case, Colliers International may withhold payment

of the invoice until the performance criteria for the Services of Work has been met by the Contractor.

If Colliers International does not pay the amount of the invoice within 28 days of receipt of the invoice, Colliers

disputes the invoice.

Interest on any overdue payment is payable at a rate of 6% per annum.

6.6 Tenant Services

Colliers International will not be liable for the cost of any services provided by the Contractor at the request of

persons other than Colliers International including but not limited to tenants of the property.

6.7 Final Instalment

Notwithstanding clause 6.5, the Owner will not be obliged to pay to the Contractor the final installment of the

Fee after the expiry or termination of this Agreement until the Contractor executes a certificate of release

stating that:

(a) the amount claimed in the invoice is the final payment which is due from Colliers International under

or in connection with this Agreement;

(b) subject to payment of the amount the Contractor releases Colliers International from all further

liabilities and claims under or in connection with this Agreement; and

(c) that all wages and sums due and owing to the Contractor's employees, sub-contractors or agents in

respect of the Services have been paid.

6.8 Taxes

(a) The Contractor must:

(i) be registered for GST purposes and have an ABN; and

(ii) issue tax invoices in a form complying with the GST legislation and which will allow Colliers

International to claim any input tax credit.

(b) Local taxes of any kind, including duties, levies, charges, contribution, imposts or any similar

charges, whether or not similar to any in force at the Date of Commencement and whether imposed


by a local, municipal, governmental, state, federal or other body or authority in any of the countries to

which this Agreement applies, shall, if applicable, be added to all sums due under this Agreement at

the rate prevailing at the time such taxes are due.

(c) GST

(i) Notwithstanding the provisions of clause 6.8(a), if the Services are being supplied in

Australia, the remainder of this clause 6.8 shall apply. All amounts and consideration in

respect of a supply under or in connection with this agreement are exclusive of GST unless it

is expressly included.

(ii) If a GST is imposed on any supply (or deemed supply) made under or in connection with this

agreement the amount payable for that supply is increased by the amount of that GST.

(iii) The Contractor must provide to Colliers International a GST tax invoice as required by the

relevant legislation prior to the date by which the Owner is required to make any payment in

respect of GST.

(iv) If there is an adjustment to the consideration for a supply, then the appropriate party must issue an adjustment note to the other party and, in addition to the amendment to the GST exclusive consideration payable for the relevant supply, Colliers International or the Contractor, as appropriate, must:

(v) pay an additional amount calculated as the increase in the consideration payable for the

relevant supply multiplied by the prevailing GST rate; or

(vi) refund an amount calculated as the decrease in consideration payable for the relevant

supply multiplied by the prevailing GST rate.

(vii) Terms defined in the GST Law (as that term is defined under A New Tax System (Goods

and Services Tax) Act 1999) have the same meaning in this Clause 6.8 unless provided

otherwise.

(viii) Any policy of insurance to be effected or maintained under this agreement must cover any

liability for GST which may arise upon settlement of a claim pursuant to that policy.

PART 7 - TERMINATION

7.1 Termination for Breach

(a) If the Contractor defaults in one or more of the following respects:

(i) wholly or partly suspends the performance of the services without reasonable cause;

(ii) fails to proceed with the performance of the services regularly or diligently;

(iii) fails to proceed with the performance of the services in a competent manner;

(iv) fails to comply or unreasonably delays in complying with a written direction given by Colliers

International;

(v) commits a substantial breach of this agreement including but not limited to a breach of the

requirements under Clause 3;


(vi) its personnel fails to perform the services regularly or diligently or delays in the performance

of the services as a result of an industrial dispute

then Colliers International may:

(1) if the default occurred with three months of the date of this agreement, by written notice to

the Contractor terminate this agreement; or

(2) whether or not the default occurred within three months of the date of this agreement, send

the Contractor a notice specifying the default and stating that Colliers International may

terminate the agreement.

(b) If within three days of the receipt of a notice under Clause 7.1(a)(2) the Contractor fails to rectify the

default or fails to satisfy Colliers International in its absolute discretion that the default will be rectified

without further delay to the performance of the Services then Colliers International, without prejudice

to any other rights or remedies, may by written notice to the Contractor terminate this Agreement.

(c) If the Work is terminated pursuant to the clause, Colliers International may:

(i) complete the Work; and

(ii) take possession of and use and permit other persons to use any materials, construction

plant and other things which are owned by the Contractor as may be necessary for the

purpose of completing the work and in event shall be entitled to damages from the

Contractor for any loss suffered.

7.2 Termination for Insolvency

If the Contractor:

(a) is unable to pay its debts as they fall due;

(b) commits an act of bankruptcy;

(c) enters into a composition, scheme or arrangement with its creditors or calls a meeting of creditors

with the view to entering into a composition, scheme or arrangement;

(d) has execution levied against it by creditors, debenture holders or trustees under a floating charge;

(e) takes or has taken or instituted against it any actions or proceedings, whether voluntary or

compulsory, which has the object of or which may result in the winding up of the Contractor (except

for the purposes of reconstruction);

(f) has a winding up order made against it or (except for the purposes of reconstruction) passes a

resolution for winding up;

(g) is a party to the appointment of or has a receiver, receiver/manager, provisional liquidator, liquidator,

controller or administrator appointed to the whole or part of its property or undertaking;

(h) repudiates this Agreement; or

(i) in the reasonable opinion of Colliers International the Contractor (or any of its servants, agents,

employees or Contractors) has acted dishonestly or deceptively in any way in connection with this

Agreement or the performing of its obligations under this Agreement,


then Colliers, International at any time, without prejudice to any other rights or remedies, may by written notice

to the Contractor terminate this Agreement.

7.3 Transfer of Property

If any of the following occurs:

(a) the Property or an interest in the Property is sold or otherwise disposed of by the Owner or there is a

change in the parties constituting the Owner; or

(b) there is a redevelopment or refurbishment of the Property affecting more than 20% of the floor space

of the Property

then Colliers International may, at its option:

(c) terminate this Agreement; or

(d) instruct a change to the Services under Clause 1.3.

7.4 Failure to Meet Performance Standards

If Colliers determines that, in more than one six monthly review conducted by Colliers International under

clause 3.2, the Contractor’s performance of any of the Services or any of its obligations under the Agreement

was unacceptable then Colliers International, without prejudice to any other rights or remedies, may by written

notice to the Contractor terminate this Agreement.

7.5 Contractor's Fee on Termination

Without prejudice to any other rights or remedies Colliers International may have, if this Agreement is

terminated under clause 7.1, 7.2, 7.3, 7.4 or 7.5 then the Contractor will only be entitled to a pro-rated portion

of the Fee calculated by reference to the expired portion of the period in respect of which the Fee is payable

less that portion of the Fee already paid and all reasonable costs and expenses incurred by Colliers

International arising out of the termination.

7.6 Materials, Drawings, Documents, Software and Other Property

(a) Upon the expiration or termination by either party of this Agreement for any reason whatsoever, the

Contractor must supply to Colliers International all drawings, documents and software relating to the

Services and all other materials and property of Colliers International (including without limitation any

keys) which are in the possession of the Contractor or its subcontractors.

(b) All software supplied by the Contractor to Colliers under this Clause 7.7 must be in a form which

Colliers International may readily copy, duplicate and load into devices in which such software normally resides.

(c) The Owner agrees the software will be used only for the purpose of continuing operations at the

Property.

7.7 Transitional Arrangements

In the event that this Agreement is either terminated or expires, Colliers International may request the

Contractor to continue to undertake the Services until the time another contractor commences the services.

Payment for the services shall be made in accordance with clause 6 above.


PART 8 - SETTLEMENT OF DISPUTES

8.1 Dispute Resolution

(a) Colliers International and the Contractor agree to cooperate and to meet and conduct in good faith

such discussions and negotiations as may be necessary or desirable to amicably resolve any dispute

which arises between them.

(b) If a dispute arises out of or in connection with this Agreement and the parties do not resolve it in

accordance with sub-clause (a), the dispute must be determined in accordance with this clause 8.1.

(c) Either party may give the other a notice providing particulars of an unresolved dispute. The dispute

must then be referred to the chief executive officers or their nominees of Colliers International and

the Contractor who must then meet and attempt to resolve the dispute within 30 days (or such longer

period which both parties may agree) from such notice. Any agreement reached by those persons

will be binding on the parties to this Agreement.

(d) Compliance with this clause 8.1 will be a condition precedent to a party’s entitlement to commence

legal proceedings in relation to any dispute arising out of or in connection with this Agreement.

(e) This clause will not apply to a dispute in which a party seeks urgent interlocutory relief.

PART 9 - GENERAL

9.1 Assignment

(a) The Contractor must not assign any of its rights or transfer any of its obligations under this

Agreement without the prior written approval of Colliers International. Colliers International’s approval

will be subject to such conditions as Colliers International may reasonably impose. Colliers

International’s approval will not relieve the Contractor of its obligations under this Agreement.

(b) Colliers International may assign its rights under this Agreement.

(c) Colliers International may transfer its rights and obligations under this Agreement to another party by

novating the Agreement and substituting another party or parties in its place. The Contractor must

do all that is within its power to give effect to such novation, upon demand.

9.2 Notices - When Received

A notice or other document required to be given or served will be deemed to have been received:

(a) if the notice is delivered by hand to the receiver, at the time of delivery;

(b) if the notice is posted in a postage envelope addressed to the receiver, two days from the date of

posting;

(c) if the notice is transmitted by facsimile machine to the receiver, upon the receipt by the sender of a

confirmation message from the receiver.

9.3 Notices

Any notice, consent, offer, demand, request or other instrument required or authorised to be given or served

upon a party pursuant to this Agreement must be in writing and signed by an officer of the sender and may be


given by facsimile, pre-paid post or hand to that party at its address on page one of this Agreement or

otherwise advised by each party in writing from time to time.

9.4 Waiver, Severability

(a) If for any reason a provision of the Agreement or part of one is illegal, invalid or unenforceable in any

jurisdiction, it is to be read down or severed to the extent necessary to remove the illegality, invalidity

or unenforceability.

(b) The illegality, invalidity or unenforceability of any provision or part of one in any jurisdiction shall not

affect the legality, validity or enforceability of any other provision or of that provision in any other jurisdiction.

(c) Colliers International shall not be deemed to have waived any right, power or entitlement under the

Agreement unless such waiver is in writing duly signed by Colliers International.

(d) The failure of Colliers International to enforce at any time any of the provisions of the Agreement

shall not affect the validity of the Agreement or any part of it or any of the rights of Colliers

International thereafter to enforce each and every such provision.

(e) The waiver by Colliers International of any breach of the Agreement by the Contractor shall not be

held to be a waiver of any subsequent breach of that provision or any other provision of the

Agreement.

9.5 Advertising

The Contractor must not without the prior written consent of Colliers International, advertise or publish in any

manner the fact that the Contractor has contracted with Colliers International for the performance of the

services.

9.6 Public Announcements

In respect of the Services or the Property any contact with the media will be carried out by Colliers

International. The Contractor, its employees, subcontractors and agents must not carry out any interviews or

conduct any discussions with the media in connection with the services or the Property.

9.7 Confidentiality and Privacy

(a) The Contractor must not use or disclose any information received in confidence from Colliers or any

tenant, or disclose any information which may come into possession of, or may be sighted by, the

Contractor, which is of a confidential nature. If in doubt, the Contractor must obtain Colliers

International’s written consent before disclosing any information relating to the Services or this

Agreement or otherwise relating to Colliers International.

(b) All information received by the Contractor in relation to this Agreement must only be used by the

Contractor for the purposes of this Agreement and provided to employees on a strictly need to know

basis.

(c) The Contractor must remove from the property any personnel involved in a breach of this clause.

(d) The Contractor must be acquainted and comply with the Privacy Act 1988.

9.8 Conflicts of interest

Where the interests of the Contractor conflict with those of Colliers International or the Owner or its customers

the Contractor must take appropriate action to ensure that the conflict is either removed, or managed, so as to


avoid detriment to Colliers International or the Owner or its customers. If there remains some doubt about

whether a conflict exists, or how a conflict should be dealt with, the Contractor must bring the issue to the

attention of Colliers International.

9.9 Keys

(a) Colliers International may issue the Contractor certain keys to gain access to relevant parts of the

Property.

(b) Should such keys be lost, the Contractor will be responsible for the cost of rekeying any locks

associated with the lost keys in accordance with the grand master keying system.

9.10 Amendments to this Agreement

Amendments to this Agreement may only be made in writing, agreed and duly signed by the parties.

9.11 Independent Contractor

The Contractor is an independent Contractor and shall not represent itself to be and shall not be construed to

be an employee, partner or agent of the Owner or Colliers International, or being otherwise able to bind the

Owner or Colliers International.

9.12 Survival

Clauses 2.3, 5.1 and 9.7 shall survive the termination, repudiation and expiration of this Agreement.

9.13 Governing Law

This Agreement shall be governed by and construed in accordance with the laws of the State or Territory in

which the properties are located.

9.14 Intellectual Property

Definition

In this clause 9.14 "Proprietary Information" means intellectual property, drawings, calculations, working

papers and technical data acquired or produced by the Contractor pursuant to the Contract and all information

of any nature whatsoever relating to the business of the Principal or the Works or Services including all

drawings (and any patterns made from those drawings), specifications, reports and operations, but excluding:

a) Information which was in the possession of the Contractor prior to the date of the Contract and which

was not acquired, either directly or indirectly, from Colliers International;

b) Information which is disclosed to the Contractor after the date of the Contract by third parties who

have the right so to disclose such information free of confidentiality restrictions imposed by Colliers

International under this Contract;

c) Information which is or becomes generally available to the public unless such public disclosure

results from a breach of the obligations of the Contract by the Contractor;

d) Information which is or becomes generally available within the industry of Colliers International

unless such disclosure results from a breach of the obligations of the Contract by the Contractor; and

e) Information as shall be required to be disclosed by law.

Prohibitions


The Contractor shall not:

a) Make use of Proprietary Information except, if necessary, for the Works or Services, without the

written approval of the Principal;

b) Disclose or allow the disclosure of Proprietary Information to third parties without the written approval

of the Principal; or

c) Erase or destroy any Proprietary Information.

Property of Colliers International

All Proprietary Information acquired or produced by the Contractor or by any sub-contractor or a consultant to

the Contractor for the purposes of the Services shall be the property of Colliers International.

No Infringement

The Contractor must ensure that the Contractor's activities in carrying out the Services do not infringe any

patent, registered design, trade mark or name, copyright or other protected right and the Contractor hereby

indemnifies Colliers International against any claims against, or costs, losses or damages suffered or incurred

by Colliers International arising out of or in any way connected with any actual or alleged infringement

9.15 Interpretation

In this agreement unless the context otherwise requires:

(a) terms used in this agreement have the meaning ascribed to them in the schedule to the Contract for

Services.

(b) if there is any inconsistency between the Contract for Services and this agreement, the terms of the

Contract tor Services will prevail;

(c) no rule of construction applies to the disadvantage of a party because that party was responsible for

the preparation of this Agreement or any part of it;

(d) headings and underlinings are for convenience only and do not affect the interpretation of this

Agreement;

(e) words importing the singular include the plural and vice versa;

(f) words importing a gender include any gender;

(g) any reference to a natural person includes any company, partnership, joint venture, association,

corporation or other body corporate and any governmental agency;

(h) a reference to any statute, regulation or any other type of legislation includes all statutes, regulations

and other types of legislation varying, consolidating or replacing them and a reference to a statute

includes all regulations and other types of subordinate legislation issued under that statute; and

(i) a reference to a party to a document includes that party’s successors and permitted assigns.


PART 10 - OPTION TO EXTEND TERM

Colliers International may by written notice to the Contractor delivered to the Contractor not less than three (3)

months prior to the expiration of the Term (ignoring any extension under this Schedule) extend the Term for a

further period of two (2) years on the provisions contained in this Agreement, subject to the following

amendments:

(a) the Term will expire two years after the expiration of the original (unextended) Term;

(b) the Fee at the commencement of the extended period of the Term will be the Fee payable under this

Agreement immediately prior to the commencement of the extended period of the Term, however

Colliers International shall have the right to require the Fee to be adjusted by written notice to the

Contractor no later than 30 days prior to commencement of the extended period of the Term.

(c) a further option to extend the Term will not apply at the expiration of the extended Term.


Appendix A - Schedule of Service


Level Tenancy Type Capacity Evaporator Condensor

Level 1 New tenancy above roller door 2x Cassette units 4.2kW SLAZ-KF50 SUZ-KD50

4.2kW SLAZ-KF50 SUZ-KD50

Level 1 ANZ Multy head ducted split 23.7kW PEFY-P80VMA-E PUMY-P200YKMD-A

PEFY-P80VMA-E

PEFY-P80VMA-E

Level 1 Tenancy 2 - Vacant Ducted split 15.57kW PEFY-P140VMH-E PUMY-SP140YKMD

Level 1 Tenancy 3 - Vacant Ducted split 15.57kW PEFY-P140VMH-E PUMY-SP140YKMD

Level 2 Tenancy 1 - Presence IT Multy head ducted split 23.7kW PEFY-P125VMA-E PUMY-P200YKMD-A

PEFY-P125VMA-E

Level 2 Tenancy 3 - Capitalis Multy head ducted split 23.7kW PEFY-P125VMA-E PUMY-P200YKMD-A

PEFY-P125VMA-E

Level 2 Tenancy 2 - UAA Multy head ducted split 23.7kW PEFY-P80VMA-E PUMY-SP125YKMD

PEFY-P80VMA-E

Level 6 Back Unit - Village Energy Package unit 29.5kW PCG290U

Level 6 Front Unit - Fleetsu Package unit 19.69kW PCG203U

15.27kW PCG153U

Roof Lift Motor Room Wall split 7.14kW MSZ-GE71VAD MUZ-GE71VAD