Australia Terms and Conditions (Shred)

Introduction/Parties

ZircoDATA Pty Ltd (ACN 005 944 203), a company registered in Australia, having its registered office at Level 4, 973 Nepean Highway, Bentleigh, Victoria, 3204 (“Supplier”), and the entity identified on page 1 of this services agreement (“Customer”), hereby enter into and agree as provided in this services agreement (the “Agreement”) dated as of the date of the Customer’s signature on page 1 of this Agreement (the “Effective Date”).

1. Services

1.1

(a) Supplier will provide Customer the services set forth on page 1 of this Agreement (the “Services”) at the location(s), and for the term specified in Section 2 of this Agreement;
(b) Supplier shall provide and install equipment (“Equipment”) for collection and storage of Customer’s paper and other agreed materials (“Customer Confidential Materials” or “CCM”). Additional Equipment will be subject to installation charges as set forth on page 1;
(c) Supplier shall collect the CCM on a regularly scheduled basis and destroy the CCM using a mechanical shredding device (the “Destruction Process”). The Destruction Process will be undertaken at Supplier’s disposal facility (“offsite”) rather than Customer’s premises (“onsite”) unless onsite is specified on page 1. If temporary circumstances (e.g. vehicle malfunction) mean that an onsite service cannot be provided, an offsite service will be provided instead and the Service Fee, will be adjusted accordingly, until the onsite service can be resumed;
(d) Supplier will provide Customer with a certificate of destruction by email. Upon request and reasonable notice, Supplier will enable Customer to inspect the Destruction Process during Supplier’s normal business hours. Supplier shall recycle or otherwise responsibly dispose of the CCM;
(e) Customer shall co-operate with Supplier to enable Supplier to provide the Services in a safe, efficient and cost-effective manner. In particular, Customer shall:

(i) provide free and timely access to Customer’s premises;
(ii) ensure that Equipment is located as close as possible to Supplier’s pick-up location;
(iii) inform Supplier of all applicable health and safety rules and security
requirements on Customer’s premises; and
(iv) not store in any Equipment anything considered to be highly flammable,
explosive, radioactive or toxic, or any biohazard or medical waste, or any other materials which are otherwise illegal, dangerous or unsafe or likely to hinder proper provision of the Services by Supplier.

1.2 Customer warrants that the details of its order as stated on page 1 are complete and accurate.

2. Pricing

(a) Customer shall pay to Supplier the service fees set forth on page 1 (“Service Fees“) which will be fixed for the first year of the Term.
(b) Thereafter, Supplier has the right, in its sole discretion, to increase the amount of each Service Fee by no more than the greater of 5% and the percentage increase in the Consumer Price Index for the all Groups Weighted Average over 8 Capital cities (“CPI”) effective from the first anniversary of the Effective Date and each anniversary thereafter
during the Term, based on the increase to the CPI during the twelve months ending on the quarter prior to the anniversary of the Commencement Date.. Supplier will provide notice of any change in the Service Fees to Customer, which notice may be included on an invoice.
(c) Supplier may additionally apply a surcharge to the Service Fees, but only if such surcharge is set forth on page 1 or otherwise agreed between the parties.
(d) Supplier operates in a sector that is vulnerable to disruption. If Supplier incurs additional costs due to exceptional circumstances beyond Supplier’s control or if Customer requires higher levels of service than agreed, Supplier may charge such additional costs to Customer provided such charges are reasonable, limited to the additional costs incurred and, where possible, mitigated by Supplier.
(e) If Customer requests and Supplier in good faith provides, services outside the scope of this Agreement, Customer shall pay for such services at the closest applicable Service Fees, with the Supplier acting reasonably.
(f) Notwithstanding anything to the contrary, Customer shall pay the minimum charge set forth on page 1 if Customer declines or cancels a scheduled service or if Customer fails to provide necessary access during a scheduled service.

3. Payment terms; billing

3.1 Supplier shall submit invoices to Customer in accordance with Supplier’s standard billing process. Customer shall pay in full each Supplier invoice within 30 days of the date of such invoice. Any invoiced amounts not received by Supplier within that timeframe will (save in respect of any validly disputed sums) be subject to a late fee of 10% per annum on the outstanding balance. Supplier may, with notice, suspend services until any and all amounts, which are due and payable, but unpaid (including late fees, and reasonable enforcement and collection costs, if any) are paid. Customer shall also pay all taxes imposed by any governmental authority with respect to the purchase of any services and products hereunder, including all
sales, use, excise, occupation, franchise and similar taxes and tax-like fees and charges (but excluding all taxes on Supplier’s net income). Supplier will cooperate with Customer to determine the applicability of exemption certificates, if any, that Customer provides in a timely manner to Supplier. Customer shall not be entitled to withhold payment by way of set-off or counterclaim.

4. Default and termination for cause

4.1 Either party may immediately terminate this Agreement, in whole or in part, upon written notice to the other party if the other party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days following receipt of written notice of such breach. Non-payment by Customer of amounts rightfully owed to Supplier or Customer’s failure to comply with Supplier policies related to the Services (including without limitation those referred to in Section 1) shall constitute a material breach. If Supplier is unable to perform Services as a result of Customer’s failure to fulfil its obligations under this Agreement, those Services shall be
deemed to have been performed on the due date.

4.2 Without prejudice to any other rights or remedies Supplier may have, Supplier may by notice in writing immediately terminate this Agreement if: (a) Supplier reasonably believes that Customer is unable to pay its bills as they fall due; (b) an application or order is made for the winding up
or dissolution of, or the appointment of a provisional liquidator or liquidator to, Customer or a resolution is passed or steps are taken to pass a resolution for the winding up or dissolution of Customer other than for the purpose of an amalgamation or reconstruction; (c) a receiver, manager, receiver and manager, voluntary administrator, administrator of a contract of company arrangement, trustee, controller, managing controller or any analogous person is appointed to Customer or all or any of its property; (d) Customer fails (as defined by section 459F of the Corporations Act 2001 (Cth)) to comply with a statutory demand or is or informs a party to this
Agreement or creditors generally that Customer is insolvent (as defined by section 95A of the Corporations Act 2001 (Cth)) or is financially unable to proceed with this Agreement; (e) Customer enters into or resolves to enter into any arrangement, composition or compromise with, or assignment for the benefit of, its creditors or any class of them; or (f) Customer is unable
to pay its debts as and when they fall due, ceases for any reason to carry on business or takes or suffers any similar action which in the opinion of Supplier means that Customer may be unable to pay its debts.

5. Limitation of liability; disclaimer of warranties

5.1 The Australian Consumer Law and certain other laws may give Customer rights in relation to the supply of goods and services by Supplier under this Agreement that cannot lawfully be excluded (Non-Excludable Guarantees). To the extent permitted by law Supplier excludes all
other conditions, warranties and terms that, in the absence of this clause, may otherwise be implied into this Agreement.

5.2 To the extent Supplier is permitted by law to do so, and subject to clause

5.3, Supplier’s liability arising in relation to the supply of goods or services pursuant to this Agreement, including in respect of breach of contract, negligence, operation of law of otherwise, is limited to:

(a) in the case of goods, the replacement of the relevant goods or payment of the cost of replacing the relevant goods; and
(b) in the case of services, supplying the services again or the payment of the cost of having the services supplied again.

5.3 To the extent permitted by law, the Supplier’s liability for loss or damages (other than pursuant to a Non-Excludable Guarantee) that arise in relation to the supply of goods or services pursuant to this Agreement (whether arising under contract, tort (including negligence or breach of statutory duty) will be limited to the amount of the Service Fees received by the Supplier from
the Customer under the Agreement during the twelve (12) month period prior to the event (or series of related events) to which the alleged liability relates.

5.4 In no event shall either party be liable for any direct or indirect loss of anticipated savings, injury to reputation or any indirect, exemplary, punitive, special, incidental or consequential damages,

5.5 Nothing in this Agreement limits or excludes Supplier’s liability for death/personal injury resulting from its negligence, or for wilful misconduct, fraud, or fraudulent misrepresentation, or any matter for which it would be illegal for Supplier to exclude its liability. To the fullest extent permitted by law (a) except as set forth in this Agreement, all conditions, warranties and
representations, whether express or implied by law, in relation to the Services are excluded and (b) the exclusions and limitations of liability in this Agreement apply.

6. Non-conforming waste

6.1 Supplier reserves the right to reject non-conforming waste.

7. Compliance Materials

7.1 To the extent that Supplier provides Customer with electronic or printed materials (“Compliance Materials”), it provides these subject to a revocable, limited, non-sub-licensable, non-exclusive, non-transferable license to Customer to use Compliance Materials for its own, non-commercial use. Supplier may revoke this license at any time. Customer may not copy or distribute Compliance Materials or use or republish Compliance Materials for or to any third party or audience. Customer agrees to return all Compliance Materials to Supplier at Customer’s expense at the expiration or termination of this Agreement. Supplier may charge Customer a reasonable fee for failure to return Compliance Materials.

8. Confidentiality

8.1 Customer agrees to not disclose to any third parties Supplier pricing, policies and procedures, the terms of this Agreement or any documentation or information related to this Agreement. Supplier will keep confidential all CCM and other Customer confidential information provided to Supplier in connection with this Agreement and will use the same solely for the purposes provided in this Agreement. As used herein, “confidential information” means any information provided to Supplier in confidence that relates to Customer’s property, business and/or affairs, other than (i) information that is or has become publicly available due to disclosure by Customer or by a third party having a legal right to make such disclosure; or (ii) information previously known to Supplier free of any obligation to keep it confidential prior to receipt of the same from Customer; or (iii) information that is required to be disclosed by law.

9. Insurance; compliance with laws and policies; record keeping

(a) Supplier agrees to carry such insurances as are required by applicable law.
(b) Supplier and Customer shall comply with all laws, rules and regulations relating to this Agreement, including anti-corruption and economic and trade sanction laws.
(c) Customer and Supplier each agree to comply with all applicable laws, rules and regulations applicable to their handling of waste and their performance under this Agreement, including, without limitation, all environmental, health & safety and confidentiality laws, all applicable record keeping, documentation and manifesting requirements and provision of required documentation to the other party as required to comply with applicable laws.
(d) Supplier and Customer shall keep and retain adequate books and records and other documentation including personnel records, correspondence, instructions, plans, receipts, vouchers, copies of manifests and tracking records and any other records or reports or memoranda consistent with and for the periods required by applicable regulatory requirements and guidelines pertaining to storage or handling of Customer
Confidential Materials/CCM and the services to be performed under this Agreement.
(e) Customer acknowledges that Supplier cannot assess the content of any Equipment before opening it or the nature of any CCM before destroying it. Customer shall not place anything other than CCM in Equipment and accepts responsibility for any inappropriate, dangerous or illegal material placed in Equipment.

10. Excuse of performance

10.1 The obligations of either party to perform under this Agreement will be excused during each period of delay caused by acts of God, war or terrorism, national emergency, riot, civil commotion, strikes/lock-outs/industrial disputes (other than solely of the affected party’s own
workforce), malicious damage, cyber-attack, or by shortages of power or materials, compliance with local authority or government orders, breakdown of plant or machinery, fire, explosion, flood, storm or other adverse weather conditions, epidemic, pandemic or any other event which is beyond the reasonable control of the affected party and prevents or hinders that party from being able to perform (“Force Majeure Event”). In the event that either party is hindered in performing or ceases to perform its obligations under this Agreement due to the occurrence of a Force Majeure Event, such party shall: (a) without undue delay, notify the other party in writing
of such Force Majeure Event and its expected duration; and (b) take all reasonable steps to recommence performance of its obligations under this Agreement as soon as possible. For the avoidance of doubt, Service Fees will be suspended during the period that Services are suspended. Where the Force Majeure Event continues for a period in excess of 60 days, either
party may by notice in writing terminate this Agreement. The parties agree that Section 12 shall not apply during any period in which Supplier’s performance is delayed by the Force Majeure Event.

11. Equipment

11.1 Customer shall have the care, custody and control of any containers and other equipment owned by Supplier and placed at Customer’s premises and accepts responsibility and liability for the Equipment and its contents. Any damage or loss to such Equipment, other than normal wear and tear, will be charged to Customer at full replacement value. Customer shall only use the Equipment for storage of CCM and shall not overload Equipment or refill it during collection. Customer shall not hold unused Equipment as contingency.

12. Commitment

12.1 Customer acknowledges that the pricing and terms of this Agreement, and Supplier’s technical and operational arrangements, are based on the Customer’s commitment to use the Supplier exclusively for all waste disposal services that are the same as or substantially similar in nature
to the Services, at all of its locations.

13. Third Party Agents

13.1 Supplier reserves the right to deal solely with Customer and not with any third party agents of Customer for all purposes relating to this Agreement. Customer represents, warrants and undertakes to Supplier that it is acting for its own account and not through a broker or agent. Supplier shall be entitled to terminate this Agreement and seek all available legal remedies, including but not limited to early termination fees in the amount set forth herein, for Customer’s breach of this representation, warranty and undertaking.

14. Entire Agreement; purchase orders

14.1 This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and supersedes and extinguishes any related prior agreements. This Agreement governs the relationship between Customer and Supplier in relation to the provision
of the Services to the exclusion of all other terms and conditions that Customer may seek to impose or incorporate (whether in any purchase order, specification, invoice acknowledgement, payment confirmation, terms of business or terms of use and whether express or implied) and any terms that would be implied by law are excluded to the fullest extent permissible under applicable law. For the avoidance of doubt, the Supplier is not purporting to exclude non excludable rights under any law, including but not limited to the Australian Consumer Law.

15. Amendment and waiver; savings Section; survival

15.1 The parties may change the locations at which this Agreement applies by agreement in writing (which for this purpose includes email). This Agreement may be modified only by a written amendment signed by an authorized representative of each party, except that Supplier may make changes to the provision of the Services by written notice to Customer provided that (a) such changes are required to comply with applicable laws and regulations or accommodate extraordinary market conditions or (b) do not materially affect the quality or performance of the Services. The failure of either party to insist upon the performance of any provision hereof, or to exercise any right granted under any provision hereof, will not be construed as waiving that provision or any other provision, and the provision will continue in full force and effect. All waivers must be in writing and signed by the party waiving its rights. Termination of this Agreement will not affect any accrued rights or liabilities of either party at the date of termination.
This Section 15, Section 2(f) and Sections 5, 6, 11.1 and 18 survive termination or expiry of this Agreement.

16. Assignment

16.1 This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns, legal representatives and heirs; provided, however, that Customer cannot assign its rights or delegate its obligations under this Agreement without the prior written consent of Supplier (such consent not to be unreasonably withheld).

17. Independent contractor

17.1 Supplier’s relationship with Customer is that of an independent contractor, and nothing in this Agreement shall be construed to designate Supplier as an employee, agent or partner of or in a joint venture with Customer.

18. Governing laws and dispute resolution

18.1 This Agreement and any dispute arising in connection with it or its subject matter or formation (including non-contractual disputes) shall be governed by and construed in accordance with the laws of Victoria, Australia and each party submits to the exclusive jurisdiction of the Australian courts.

19. Notices

19.1 All notices that are required to be given under the Agreement shall be in writing and sent to the registered address of the respective party, by express post or email and shall be deemed to have been received:

(a) by express post, forty eight (48) hours after the date of mailing; or
(b) by email, immediately upon confirmation of transmission.

Notifications sent to the Supplier should be marked for the attention of the Supplier’s Chief Financial Officer and must also be copied to the Supplier’s nominated main contact as shall be notified to the Customer from time to time (if any) or the Supplier’s Customer Service Department.

19.2 Each party agrees to keep the other party promptly informed in writing of any changes of address, telephone contact numbers, and email address. Any notice provided under this Agreement will be deemed to have been sufficiently sent and received by a party, if sent to the last address and email address advised in writing by that party to the other party.

20. Joint Parties

20.1 Where the Customer is two or more persons, they shall be deemed to have entered into, and be bound by, the Agreement jointly and severally and agree that service of notices on one is deemed service on the other/others.

21. General

21.1 If any provision of this Agreement is found by any court to be illegal, invalid or unenforceable, that shall not affect the other provisions of this Agreement and those other provisions shall remain enforceable.

21.2 The Supplier may use sub-contractors to provide parts of the Services but such use shall not relieve the Supplier of its obligations under the Agreement.

21.3 By entering into this Agreement, the Customer consents to receive relevant information and materials regarding Supplier’s service offerings (the “Information”). The Information will be sent to the Customer via electronic message as defined pursuant to the Spam Act 2003 (Cth) from the Supplier or the Supplier’s employees, agents and/or its permitted assigns.

21.4 The parties acknowledge and agree that this Agreement may be executed by use of an Electronic Signature, and if a party executes this Agreement using an Electronic Signature, then:

(a) the party is taken to have entered into this agreement in electronic form;
(b) the Electronic Signature is deemed to be an original execution of the Agreement by the party for the purposes of this Agreement; and
(c) the party must promptly provide to the other party such evidence of the Electronic Signature as the other party, within reason, may require.

Electronic Signature means an electronic method of signing that identifies the person and indicates their intention to sign the Agreement which may include, but is not limited to, software programs such as DocuSign or Conga.