Terms & Conditions

Contents
1.Definitions and Interpretation
2.Engagement as Provider
3. Pricing and Invoicing
4. Payment
5. GST
6. Cancellation or Return
7. Delivery and Risk
8. Title in Goods
9. Security of Payment
10. Liability and remedies
11. Dispute Resolution
12. Event of Default
13. Termination
14. Trustees
15. Notices
16. General

1. Definitions and Interpretation

Definitions
1.1 The following definitions apply in these Terms and Conditions unless the context requires otherwise:

Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Perth, Western Australia are open for business.

Charges means Fees and Expenses.

Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).

Corporations Act means the Corporations Act 2001 (Cth).

Customer means the Customer of the Goods or Services as named in the Quote.

Default Rate means a rate of interest of 15.00% per annum.

Deposit means 50% of the Quote as agreed between the parties pursuant to clause

3.8. Engagement has the meaning given in clause 2, being each individual engagement for the Provider to provide specific Goods or Services to the Customer pursuant to a Quote.

Event of Default means any of the following on
the part of the Customer:

(a) committing any material or persistent breach of these Terms and Conditions;
(b) repudiating or, or, in the reasonable opinion of the Provider, evincing an intention to repudiate, these Terms and Conditions;
(c) if the Customer is a company, undergoing a Change of Control without the prior written consent of the Provider;
(d) misleading the Provider in any material way; and/or
(e) an Insolvency Event occurring in respect of the Customer.

Expenses mean the expenses of the Provider for which the Provider is entitled to be reimbursed by the Customer pursuant to clause
3.11.
Fees has the meaning given in clause 3.4.

Goods means goods (as that term is defined under the PPSA) supplied to the Customer by the Provider under these Terms and Conditions, and in respect of each Engagement (and where the context so permits includes Services).

Governing State means the State or Territory where the Provider has its principal place of business.

Governmental Agency means any government or governmental, semi-governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity whether foreign, federal, state, territorial or local.

GST has the same meaning given to that expression in the GST Law.

GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth), as in force from time to time.

GST Law has the same meaning given to that expression in the GST Act.

Insolvency Event means, in respect of a party:

(a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;

(b) where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;

(c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part there of; or

(d) the party is otherwise unable to pay its debts as and when they fall due.

Input Tax Credit has the meaning given in the GST Law.

Intellectual Property Rights means patents, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how, trade secrets and marketing secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Losses means any loss, damage, debt, cost, charge, expense, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:

(a) liabilities on account of Tax;

(b) interest and other amounts payable to third parties;

(c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and

(d) all amounts paid in settlement of any Claim.

PPSA means the Personal Property Securities Act 2009 (Cth)

Personal Information has the meaning given in the Privacy Act.

Privacy Act means the Privacy Act 1998 (Cth). Quote means, in respect of a particular Engagement, the document headed “Quote,” or similar setting out the Goods and/or scope of Services for that Engagement as provided by the Provider to the Customer and accepted by the parties in accordance with these Terms and Conditions.

Relevant Trust means, in respect of any Trustee, the trust in respect of which the Trustee is expressed to have entered into these Terms and Conditions as trustee.

Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person. ROT Security means a retention of title security interest under a “conditional contract” as defined under the PPSA.

Security Interest means any mortgage, charge (whether fixed or floating), pledge, lien, hypothecation, guarantee, right of set-off, option, right to acquire, right of pre-emption or other security interest of any kind (whether legal or equitable), including any assignment by way of security, trust arrangement for the purpose of providing security, retention of title arrangement or sale and repurchase agreement, or any other agreement or arrangement having a similar effect, howsoever created or arising, and any agreement to create any of the foregoing.

Services means the services provided by the Provider to the Customer under these Terms and Conditions in respect of each Engagement, and includes any advice or recommendations, intellectual or intangible property under the PPSA (and where the context so permits includes Goods).

Stamp Duty means any stamp, transaction or registration duty or similar charge imposed by any Governmental Agency and includes any interest, fine, penalty, charge or other amount in respect of the above, but excludes any GST.

Start Date means the date of these Terms and Conditions or such other date as the parties may agree in writing.

Tax Acts means the Income Tax Assessment
Act 1936 (Cth) and the Income Tax Assessment
Act 1997 (Cth).

Tax or Taxation means:

(a) any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Governmental Agency (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);

(b) unless the context otherwise requires, Stamp Duty and GST; and

(c) any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.

Trustee means any party to these Terms and Conditions that is expressed to have entered into an Engagement under these Terms and Conditions in its capacity as a trustee of any trust.

Interpretation

1.2 The following rules of interpretation apply in these Terms and Conditions unless the context requires otherwise:

(a) headings in these Terms and Conditions are for convenience only and do not affect its interpretation or construction;

(b) no rule of construction applies to the disadvantage of a party because of these Terms and Conditions is prepared by (or on behalf of) that party;

(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;

(d) a reference to a document (including these Terms and Conditions is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;

(e) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to these Terms and Conditions;

(f) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;

(g) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Governmental Agency and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;

(h) a reference to writing includes any communication sent by post, facsimile or email;

(i) a reference to time refers to time in Perth, Western Australia and time is of the essence;

(j) all monetary amounts are in Australian currency;

(k) a reference to a “liability” includes a present, prospective, future or contingent liability;

(l) the word “month” means calendar month and the word “year” means 12 calendar months;

(m) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;

(n) a reference to a “party” is a reference to a party to these Terms and Conditions and a reference to a “third party” is a reference to a person that is not a party to these Terms and Conditions;

(o) a reference to any thing is a reference to the whole and each part of it;

(p) a reference to a group of persons is a reference to all of them collectively and to each of them individually;

(q) words in the singular include the plural and vice versa; and

(r) a reference to one gender includes a reference to the other genders.

2. Engagement as Provider

Commencement
2.1 With respect of each engagement for the Provider to provide Goods or Services to the Customer under these Terms and Conditions, the parties must first agree on a Quote. The Provider’s obligation to provide the Goods or

Services that are the subject of each engagement does not arise unless and until the Customer has notified the Provider of the Customers acceptance of the relevant Quote. Each engagement is subject to the terms of these Terms and Conditions.

2.2 The Agreement between the Provider and the Customer with respect to each engagement comprises:

(a) These Terms and Conditions as amended from time to time;

(b) The agreed Quote;

(c) The Provider’s Privacy Policy; and

(d) Any formal notice or written correspondence by the Provider in accordance with these Terms and Conditions.

Nature of Relationship

2.3 The Provider is an independent contractor of the Customer and nothing in these Terms and Conditions constitutes a relationship of employer and employee, principal and agent, partnership or joint venture between the parties.

2.4 If a party must fulfil an obligation and that party is dependent upon the other party, then the other party must do each thing reasonably within its power to assist the other in the performance of that obligation.

3. Pricing and Invoicing

Pricing

3.1 Any advertised or listed price is subject to change without notice and is for general information or indicative purposes only. Pricing for any transaction will be in accordance with the Quote agreed between the parties and subject to this clause 3.1 to 3.11.

3.2 Unless stated otherwise in any Quote the prices provided by the Provider in the Quote shall be valid for a maximum period of 10 days from the date shown on the Quote.

3.3 On acceptance of the relevant Quote, the Customer engages the Provider to provide the Goods or Services to the Customer, and the Provider accepts that engagement and agrees to provide the Goods or Services to the Customer, in accordance with the terms of these Terms and Conditions.

Invoicing

3.4 Subject to clauses 2 and 3, in respect of each Engagement, the parties have agreed that the total price for the relevant Goods or Services (exclusive of GST and Expenses, and including a Deposit where relevant) (the Fees) will be, if as designated in the relevant Quote.

3.5 Where a Quote contains an order for multiple Goods or Services that may be delivered separately the Provider may provide more than

one invoice with respect to the Goods or Services.

3.6 The Customer must review all invoices and advise the Provider of any errors or omissions within five (5) days of receipt. Failing advice from the Customer within that timeframe that the invoice contains any errors or omissions, the invoice shall be deemed acceptable by the
Customer.

Deposit

3.7 Regardless of any agreement in place between the Provider and the Customer, the Provider requires the Customer to pay a minimum deposit of $200 per shutter and $1000 per blind prior to processing the Order (the Deposit):

(a) the Deposit will be payable on acceptance of any applicable Quote. The Provider will invoice the Customer for the Deposit prior to processing the relevant order; and

(b) the balance of all relevant Charges will be payable on installation or, if Goods are not being installed by the Provider, on delivery. The Provider will invoice the Customer for that balance at the time the order is processed in accordance with clauses 4.1 – 4.2.

Deposit Non-Refundable

3.8 In the absence of any material breach by the Provider constituting a repudiation or deemed repudiation of these Terms and Conditions, the Deposit is non-refundable .

3.9 By acceptance of the Quote and acknowledgement of these Terms and Conditions, and prior to the order being processed, the Customer agrees and acknowledges that:

(a) the Deposit is the fair and reasonable cost incurred by the Provider and attributed to the supply, manufacture, delivery of Goods and materials, and engagement of supply and installation services; and

(b) retention of the deposit is a genuine pre-estimate of the Provider’s costs incurred and does not represent a penalty to the Customer.

Reimbursement of Expenses

3.10 The Customer will pay all reasonable expenses properly and necessarily incurred by the Provider in the course of providing the Goods or Services, provided that:

(a) the Provider:

(i) obtains the Recipient’s written consent before incurring the expenses;
(ii) provides the Customer with acceptable documentation

for the expenses incurred; and
(iii) complies with any applicable expenses policy of the Customer in force from time to time, provided that a copy of the policy has been provided to the Provider by the Customer prior to the relevant expense being incurred; and

(b) the Customer will not be required to reimburse the Provider for any amount of GST that the Provider has paid, or is liable to pay, in relation to any supply acquired by the Provider from any third party if the Provider has received, or is entitled to receive, an Input Tax Credit for that GST.

4. Payment

Timing of Payments

4.1 The Deposit is payable in accordance with the provisions of clause 3.8(a) and 3.8(b). The Customer must pay to the Provider all other
Charges properly invoiced pursuant to clause 3.1 to 3.11 in full on or before the date that is seven (7) days after the date of the invoice, or as otherwise agreed in writing between the parties.

Method of Payment

4.2 All amounts to be paid by a party to another party under the relevant Quote or in connection with these Terms and Conditions must be paid in cash, credit card, or electronic funds transfer into the account nominated by the other party.

No Set-Off or Deduction

4.3 All amounts payable under or in connection with these Terms and Conditions must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under these Terms and Conditions (unless otherwise required by law).

4.4 If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with these Terms and Conditions to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.

5. GST

Definitions Regarding GST

5.1 In this clause 5.1- 5.6:

(a) expressions that are not defined, but which have a defined meaning in the GST Law, have the same meaning as in the GST Law;

(b) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 5.1(b); and

(c) any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 5.

Consideration is Exclusive of GST

5.2 Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under these Terms and Conditions has been determined without regard to GST and must be increased on account of any GST payable under this clause 5.

Receiving Party to Pay Additional Amount

5.3 If GST is imposed on any supply made under or in accordance with these Terms and Conditions, the Customer of the supply (Receiving Party) must pay to the supplier (Providing Party) an additional amount equal to the GST payable on the supply, subject to the Receiving Party receiving a valid tax invoice, or a document that the Commissioner will treat as a tax invoice, in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with these Terms and Conditions.

Fines, Penalties and Interest

5.4 The amount recoverable on account of GST under this clause 5.4 by the Providing Party will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Receiving Party under this clause 5.4.

Reimbursement

5.5 If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with these Terms and Conditions, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.

Adjustment Events

5.6 If, at any time, an adjustment event arises in respect of any supply made by a party under these Terms and Conditions, a corresponding adjustment must be made between the parties in respect of any amount paid to the Providing Party by the Receiving Party pursuant to clause

5.1-5.6 and payments to give effect to the adjustment must be made and the Providing Party must issue an adjustment note.

6. Cancellation or Return

Cancellation

6.1 Once a Quote has been accepted by the Customer, it cannot be cancelled or deferred without the prior written consent of the Provider, which may be given or declined in the Provider’s sole discretion and subject to any conditions the Provider, acting reasonably, determines.

6.2 If an Order is cancelled or deferred by the Customer, the Provider reserves the right to charge the Customer for all loss, damage and expense sustained or incurred by the Provider as a result of the cancellation or deferral, including without limitation; holding costs, freight costs, and expenses incurred by the Provider in assembling or preparing the Goods to fulfil the Customer’s Quote.

Return of Goods

6.3 Except to the extent required by law, the Provider is under no obligation to accept returned Goods and shall do so at their absolute discretion.

6.4 The Provider shall not accept return of any Goods unless they have given prior written consent for the return.

6.5 Except as required by law the Provider shall not accept return of any Goods that are; specifically built, modified, non-stock, fully imported, cut to length or not in ‘as new’ condition. 6.6 In all cases, the Customer is responsible for all costs involved in the returned Goods back to the Provider.

7. Delivery and Risk

7.1 Upon confirmation of a Quote from the Customer, or payment as required in accordance with clause 2.1, the Provider shall arrange for the manufacture, delivery and/or installation of the Goods to the Customer. To the extent permitted by law, or unless otherwise terminated or cancelled in accordance with these terms and conditions, the Customer must accept delivery of the Good or Services and pay all amounts owed to the Provider in accordance with clause 4 or as otherwise provided in these terms and conditions.

7.2 Any date or time specified by the Provider for delivery and or installation of the Goods is an estimate only. The Provider will make commercially reasonable efforts to meet the estimated delivery date and or delivery date specified in the Quote, but shall have no liability to the Customer for late delivery. In the event that the Provider becomes aware that they will not be able to meet an estimated delivery date, the Provider shall promptly notify the Customer, and discuss in good faith on the appropriate delivery date.

7.3 The Provider shall have no liability for non-delivery or delays in delivering all or any part of a Customer’s order and if such nondelivery or delay occurs, the Provider may deliver the Goods not delivered or delayed at any subsequent date. Non delivery or delay of any part of an order does not relieve the Customer of their obligation to accept and pay for the remainder of their order in accordance with clause 4.

7.4 Delivery of the Goods will occur at the Customer’s premises as listed on the Quote, unless otherwise agreed in writing. If the Provider agrees to a request from the Customer for the Goods to be delivered at a place other than the Customer’s listed premises, the Customer must indemnify the Provider against, any additional costs, expenses and liabilities associated with that delivery.

7.5 In the event of a dispute as to the time of delivery, delivery will be deemed to have occurred when the Goods arrived at the Customer’s listed premises.

7.6 The risk of loss resulting from damage, destruction or other incidence resulting in loss, of or to any Goods ordered by the Customer, will pass to the Customer when the items have been installed at the Customer’s premises.

7.7 The risk in the Goods passes in accordance with clause 7.6 even if ownership has not yet passed in accordance with clause 8.1.

8. Title in Goods

8.1 Title to the Goods comprised in an order, will not pass to the Customer until all monies owing by the Customer to the Provider (whether under these Terms and Conditions or otherwise) has been received in full. Until that time, the Customer shall hold the Goods as fiduciary for the Provider.

8.2 Until title to the Goods passes to the Customer in accordance with clause 8.1 the Customer shall:

(a) store the Goods, including products into which the Goods have been incorporated, so that they are clearly identified as the property of the
Provider.

(b) act in a fiduciary capacity to the Provider and hold any proceeds from the sale or disposal of the Goods, or any products into which the Goods
have been incorporated, on trust for the Provider’s benefit and pay those amounts to the Provider on demand;

(c) hold the proceeds of any insurance claim on trust for the Provider up to the amount owing to the Provider with respect to the relevant Goods;

(d) if the Provider so demands, return the Goods, and the Provider may enter any land or premises of the Customer

to repossess the Goods if that demand is not complied with;

(e) not grant a security interest in the Goods to any person other than the Provider; and

(f) despite any other rights or remedies to which the Provider is entitled, the Provider has a lien (including a right of sale) over the Goods.

8.3 The Customer irrevocably permits the Provider or their representative, upon giving reasonable notice, to enter the Customer’s premises or any such premises where the Goods are reasonably believed by the Provider to be held on the Customer’s behalf, for the purpose of examining or recovering the Goods in accordance with clause 8.2. The Customer also agrees to indemnify the Provider and hold the Provider
harmless for any costs of removal, enforcement, or legal action arising in respect of the removal of any Goods the subject of these Terms and Conditions.

9. Security of Payment

Purchase Money Security Interests

9.1 The Provider hereby reserves a Purchase Money Security Interest in each unit of the Goods sold and/or delivered to the Customer, now or in the future and in the proceeds thereof, if the Customer sells or leases a unit(s) to another party prior to the Customer paying the Provider the purchase price and associated costs in accordance with these terms and conditions. These interests will be satisfied by payment in full of the purchase price and all associated costs of the Goods.

9.2 A copy of these Terms and Conditions may be registered on the Personal Properties and Securities Register at any time before or after the signature by the Customer to perfect the Provider’s security interest.

9.3 On the request of the Provider, the Customer shall sign any forms or documents the Provider shall require to perfect a Purchase Money
Security Interest.

9.4 The Customer will not enter into any security agreement that gives any other person a security interest in Goods supplied to the Customer by the Provider or any proceeds from the sale of the Goods, until the Provider has perfected its Purchase Money Security Interest.

PPSA

9.5 In this clause 9.5, the following words have the respective meanings given to them in the PPSA: accession, commingled, financing statement, financing change statement, perfected, proceeds, register, registration, security interest and verification statement.

9.6 For the purposes of the PPSA, the Customer acknowledges that the Agreement may be a

security agreement in respect of which the Goods are the collateral.

9.7 The Customer consents to the Provider effecting and maintaining registrations on the PPSR in respect of security interests (including purchase money security interests as detailed in clause 9.1 – 9.4) created or contemplated by the Agreement in the Goods and any proceeds from dealing in the Goods.

9.8 To the extent that a security interest (as defined in the PPSA) is created in relation to the obligations of the Customer under these Terms
and Conditions:

(a) the Provider need not give any notice under the PPSA (including a notice of a verification statement) in relation to that security interest unless the notice is required by the PPSA and the giving of it cannot be excluded;

(b) the Customer waives its right to receive from the Provider any information of the kind referred to in section 275 of the PPSA and shall not make any request of the Provider under that section;

(c) the Customer will only authorise the disclosure of information under section 275(7)(c) of the PPSA with the prior written consent of the
Provider;

(d) the Borrower authorises and requests the Lender under section 275(7)(c) of the PPSA to obtain from the holder of any other security interest over the relevant collateral any of the information referred to in section 275(1) of the PPSA; and

(e) each party contracts out of:

(i) each provision of the PPSA that section 115 thereof permits (excluding sections 117, 118, 123, 126, 128, 129, 134(1) and 135 thereof); and

(ii) sections 117, 118, 123, 126, 128, 129, 134(1) and 135 thereof, to the extent that a provision in any of those sections would be contrary to, or limit, an express or implied right on the part of the Lender provided for in these Terms and Conditions.

9.9 registrations on the PPSR, perfect its security interests, register financing statements or financing change statements or otherwise preserve the Provider’s priority position as contemplated by the Agreement. The Provider may recover from the Customer the costs incurred by the Provider in registering, maintaining and enforcing security interests created or contemplated by the Agreement in the Goods and any proceeds from dealing in the Goods.

9.10 Customer must not without the Provider’s prior written consent: (a) register a financing change statement in respect of a security interest created or contemplated by the Agreement; or

(b) register, or allow to be registered, in a third party’s favour a financing statement or financing change statement in respect of the Goods. Existing Agreements and Security Interests

9.11 Where the Customer has previously entered into an agreement with the Provider for the supply of Goods or Services, or has any outstanding invoices with the Provider (Existing Agreement), upon any order being made by the Customer for the supply of Goods or Services after the
provision of this document to the Customer:

(a) These Terms and Conditions shall apply to such provision, and any subsequent, provision of goods or services; and

(b) Any security interest granted by the Customer under an Existing Agreement shall immediately vest in the Provider.

9.12 These terms and conditions shall not act as a merger of the Providers rights under any Existing Agreement. The terms contained under such Existing Agreements will be amended by the terms contained herein to the extent of any inconsistency.

Security of Payment

9.13 In order to secure the Customer’s due and punctual performance of all its obligations to the Provider (including the payment of all monies owing) under the Agreement or otherwise, the Customer charges all of its legal and beneficial interest (present and future) in any and all real property and all present and after-acquired property. For the purposes of section 20(1) and (2) PPSA, the Customer states that the charge is in all of the Customer’s present and after acquired property (whether owned beneficially or otherwise) from time to time. 9.14 On the Provider’s request, the Customer must at its cost execute any documents and do all things required by the Provider to more fully document or better secure a charge arising under this clause 10 on such terms as it sees fit or to register a charge or security interest in respect of any of the Customer’s real and personal property including, without limitation, effecting and maintaining registrations on the PPSR. The Customer also consents to the Provider lodging caveats or other registrable interest being lodged with the relevant government department with in respect of any of the Customer’s real property.

Guarantee and Indemnity

9.15 In order to secure the Customer’s due and punctual performance of all its obligations to the Provider (including the payment of all monies owing) under these Terms and Conditions or otherwise, the Provider may request the Customer, or if a company, the directors or such

relevant other related party, provide a guarantee and indemnity guaranteeing strict compliance with any and all obligations under these terms and conditions between the parties.

10. Liability and remedies

Indemnity

10.1 The Customer shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Provider harmless from and against, any and all Losses that may be suffered by the Provider and which arise, directly or indirectly, in connection with any breach of these Terms and Conditions by the Customer and/or any negligent or other tortious conduct in the provision of the Goods or Services.

Indemnities continuing

10.2 Each indemnity contained in these Terms and Conditions is an additional, separate, independent and continuing obligation that survives the termination of these Terms and Conditions despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.

Limitation of Liability

10.3 Except to the extent required by law, all Goods are purchased by the Customer on an ‘as is’ basis and the Provider will not be responsible for any damage or defect to the Goods.

10.4 Subject to any conditions and warranties mandatorily implied by law and to any conditions and warranties expressly contained herein all conditions, warranties and representations on the part of the Provider, whether express or implied, are hereby expressly excluded.

10.5 Subject to any legislation or express agreement to the contrary the Customer acknowledges that it does not rely on the skill and judgment of the Provider, its employees, agents or contractors in determining whether the Goods to be supplied are fit for any particular purpose and the Customer further acknowledges that any advice with respect to the use of Goods or Services is given on the basis that the Provider assumes no obligation or liability for advice given or results obtained, all such advice being given and accepted by the Customer is at the Customer’s
risk.

10.6 To the extent permitted by law, the Customer has responsibility for ensuring that the Goods are not used for any purpose for which they are not suitable and warrants and represents that it has had adequate opportunity to obtain independent expert advice.

10.7 Any goods supplied that are subject to a manufacturers warranty are subject to the limitations contained therein.

10.8 Proper installation, inspections or approvals, capacity of the structure where the Goods are to be used, affixed or installed, and proper use of the Goods, are the sole responsibility of the Customer and at the customer’s risk.

10.9 No plumbing, drainage, electrical work, plastering, carpentry, or painting is included in the Services of the Provider unless specifically stated in the Quote. The Provider will not be responsible for damage to the Customer’s premises or any part of the Customer’s premises on which any Services are carried out by the Provider, or to the materials supplied by the Provider, resulting from faults or deterioration already existing in frame timbers, plumbing, plastering, rendering, roofing, or other interior or exterior sections of the Customer’s premises.

10.10 Without limitation to the foregoing, and to the maximum extent permitted by law, the Provider and its Representatives expressly:

(a) (Disclaimer of warranties) disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Goods or Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Provider and its Representatives make no representation, and provide no warranty or guarantee, that:

(i) the Customer will achieve any particular results from the provision of the Goods or Services;

(ii) any particular individuals will perform the Goods or Services on behalf of the Company; or

(iii) the Goods or Services will be:

(A) error-free or that errors or defects will be corrected; or

(B) meet the Customer’s requirements or expectations; and

(b) (Limitation of liability) limit their aggregate liability in respect of any and all Claims for any Losses that the Customer and/or any of its Representatives may bring against the Provider under these Terms and Conditions or otherwise in respect of the Goods or Services to the following remedies (the choice of which is to be at the Provider’s sole discretion):

(i) re-supply of the Goods or Services; or

(ii) the refund of any amounts paid by the Customer to the Provider under these Terms and Conditions in respect to the Goods or Services,

even if the Provider has been advised of the possibility of such Losses,

and the Customer acknowledges and agrees that the Provider holds the benefit of this clause 10.10 for itself and as agent and trustee for and on behalf of each of its Representatives.

10.11 To the extent permitted by law, under no circumstances shall the Provider be liable for any direct or indirect loss (including without limitation loss of profit) or damage whether special or consequential however arising (including as a result of negligence) suffered by the Customer.

Force majeure

10.12 To the maximum extent permitted by law, the Provider and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Provider under these Terms and Conditions where such damage or delay is caused by circumstances beyond the reasonable control of the Provider and the Provider shall be entitled to a reasonable extension of time for the performance of such obligations, and the Customer acknowledges and agrees that the Provider holds the benefit of this clause 10.12 for itself and as agent and trustee for and on behalf of each of its Representatives.

11. Dispute Resolution

11.1 If a dispute arises between the parties, the complainant must not commence any court or arbitration proceedings, except where that party seeks urgent interlocutory relief, unless it has first complied with this clause.

(a) Notification

Within 14 days of the dispute arising, the complainant must inform the respondent in writing of the following:

(i) The nature of the dispute;

(ii) The outcome the complainant desires, and

(iii) The action the complainant believes will settle the dispute.

(b) Endeavour to Resolve Dispute

On receipt of the complaint by the respondent, both parties will make every effort to resolve the dispute by mutual negotiation within 14 business days.

(c) Survival of this Clause
This clause survives termination of this agreement.

(d) Default in Payment

Notwithstanding this clause, if any payment due under these Terms and Conditions is not paid within

the prescribed timeframe allowed and no complaint has been notified by the Customer within 14 days of the due date of the payment, the Provider may commence any action or legal proceedings for recovery of the outstanding payment without recourse to the requirements of the dispute mechanisms of this clause.

12. Event of Default

12.1 Event of Default means the occurrence of any of the following:

(a) The Engagement between the parties as a whole, or any Material part of it, becomes invalid, unlawful, unenforceable, terminated, disputed or ceases to have full force and effect;

(b) the Customer repudiates this agreement or, in the reasonable opinion of the Providers, evinces an intention to repudiate this agreement;

(c) the Customer undergoes a Change of Control without the prior consent of the Provider;

(d) the Customer fails to pay in full any sum payable by it pursuant to this agreement when due;

(e) an Insolvency Event occurs in respect of the Customer;

(f) a judgment or order is made of becomes enforceable against the Customer’s property;

(g) The Customer permits proceedings to be commenced to wind the Customer up or a controller, receiver, administrator, liquidator or similar officer is appointed to the Customer in respect of any part of the Customer’s property or the property of any controller of the Customer; or

(h) The Customer cancels an order for Goods or Services;

(i) the Customer fails to accept delivery of any Goods or Services in accordance with these Terms and Conditions.

12.2 The Customer must notify the Provider of any Event of Default or Potential Event of Default (and the steps, if any, being taken to remedy it) promptly on becoming aware of its occurrence.

12.3 If an Event of Default occurs, the Provider may, in their absolute discretion, by notice to the Customer, declare all or part of any outstanding funds owed to the Provider (whether with respect to the current Quote or any other engagement the Customer may have with the Provider), together with the Outstanding Interest accrued thereon due and payable on or before a date specified in such notice and such notice will be binding upon the Borrower in that regard.

12.4 If an Event of Default occurs, the Provider may, in their absolute discretion, by notice to the Customer enter upon the Customer’s premises (doing all that is necessary to gain access) where Goods supplied under this contract are situated, or reasonably believed to be situated, at any time, and take possession of any or all of the Goods supplied by the Provider.

12.5 The Provider may terminate the agreement, including any Quote between the parties immediately by notice to the Customer if an Event of Default occurs in respect of the Customer.

Default Interest

12.6 If a party fails to pay any sum payable by it under these Terms and Conditions to another party at the time and otherwise in the manner provided in these Terms and Conditions, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly. Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party in respect of any late payment under this clause 12 is in addition to any other remedies that the other party may have in respect of such late payment.

12.7 The Provider reserves the right to report any default or delinquent account to a credit reporting agency should payment remain outstanding for more than 60 days. The Provider, at their absolute discretion and without prejudice to any other rights or remedies available to the Provider under Terms and Conditions between the parties, may refer the outstanding account for debt collection or issue legal proceedings to recover any outstanding sum payable by the Customer.

12.8 The Customer shall be liable for any legal costs incurred by the Provider with respect of an Event of Default committed by the Customer on an indemnity (solicitor and own client) basis.

12.9 If a liability of a party to another party under these Terms and Conditions becomes merged in a judgement or order and the interest rate that applies under that judgement or order is lower than the Default Rate, that party must, as an independent obligation, pay to the other party, at the same time and in the same manner as the sum that is the subject of that judgement or order is to be paid, such additional interest on that sum as is required to ensure that the total amount of interest that the other party receives in respect of that liability is equal to the Default Rate.

12.10 Without prejudice to any other rights or remedies available to the Provider including under these Terms and Conditions between the parties, should the Customer fail to pay any monies payable to the Provider under these Terms and Conditions, and / or any Quote, after issuing a written demand to the Customer demanding payment, the Provider will be entitled to charge and administration fee of 10 Percent of the invoice payable.

13. Termination

Effect of Termination

13.1 In the event of any termination of any Engagement between the Provider and the Customer in any circumstances and for any reason whatsoever:

(a) the Customer will remain liable to pay all Charges accrued up to and including the date of termination, whether or not invoiced prior to the date of termination (for the avoidance of doubt, in the event of any termination of these Terms and Conditions by the Customer, including Charges incurred by the Provider for freight, insurance, taxes, excises, duties, tariffs and other charges payable with respect to the procurement and delivery of the Goods to the Customer prior to such termination); and

(b) the Provider will send to the Customer a final invoice for the balance of any unbilled Charges accrued up to and including the date of termination and clauses 4.2 – 4.4 will apply in respect thereof.

Ipso facto legislation

13.2 If any provision of these Terms and Conditions is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of these Terms and Conditions, to the maximum extent permitted by law:

(a) time is of the essence in respect of all obligations of that party under these Terms and Conditions (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and

(b) any breach of these Terms and Conditions by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of these Terms and Conditions, and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.

Accrued Rights

13.3 Termination of any Engagement between the Provider and the Customer in any circumstances will not affect any rights or liabilities that the parties have accrued under it prior to such termination.

14. Trustees

14.1 Each Trustee enters into, or is bound by these Terms and Conditions only in its capacity as trustee of the Relevant Trust and in no other capacity.

14.2 A liability arising under or in connection with these Terms and Conditions can be enforced against a Trustee only to the extent to which it can be satisfied out of property of the Relevant Trust out of which the applicable Trustee is actually indemnified for the liability.

14.3 This limitation of each Trustee’s liability applies despite any other provision of these Terms and Conditions and extends to all liabilities and obligations of each Trustee in any way connected with these Terms and Conditions, including any representation, warranty, conduct, omission, agreement or transaction related to these Terms and Conditions.

14.4 No party may sue a Trustee in any capacity other than as trustee of the Relevant Trust, including seeking the appointment of a receiver (except in relation to property of the Relevant Trust), a liquidator, an administrator or any similar person to the applicable Trustee or to prove in any liquidation, administration or arrangement of or affecting the applicable Trustee (except in relation to property of the Relevant Trust).

14.5 Clauses 14.1 to 14.4 will not apply to any obligation or liability of a Trustee to the extent that it is not satisfied because, under the trust agreement establishing the Relevant Trust or by operation of law, there is a reduction in the extent of the Trustee’s indemnification out of the assets of the Relevant Trust, as a result of the Trustee’s fraud, negligence or breach of trust.

14.6 No Trustee is obliged to do, or refrain from doing, anything under these Terms and Conditions (including incurring any liability) unless its liability is limited in the same manner as set out in clauses 14.1 to 14.4.

15. Notices

15.1 A notice given to a party under these Terms and Conditions must be:

(a) in writing in English;

(b) sent to the address or email address of the relevant party as the relevant party may notify to the other party from time to time; and

(c) delivered/sent either:

(i) personally;

(ii) by commercial courier;

(iii) by pre-paid post;

(iv) if the notice is to be served by post outside the country from which it is sent, by airmail; or

(v) by e-mail. 15.2 A notice is deemed to have been received:

(a) if delivered personally, at the time of delivery;

(b) if delivered by commercial courier, at the time of signature of the courier’s receipt;

(c) if sent by pre-paid post, 48 hours from the date of posting;

(d) if sent by airmail, five days after the date of posting; or

(e) if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party, except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.

15.3 To prove service, it is sufficient to prove that:

(a) in the case of post – that the envelope containing the notice was properly addressed and posted; and

(b) in the case of email – the email was transmitted to the party’s email server or internet service provider.

16. General

Further Assurances

16.1 Each party must (at its own expense, unless otherwise provided in these Terms and Conditions) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of these Terms and Conditions.

Privacy

16.2 In relation to any Personal Information of any customer, client, supplier or Representative of the Customer, any user or prospective user or any other person, comply with:

(a) the Privacy Act and any guidelines, information sheets and other relevant material issued from time to time by

the Commonwealth Privacy Commissioner; and

(b) Any approved privacy policy adopted from time to time by the Provider.

16.3 The Customer must obtain the consent of any person whose personal information is provided to the Provider by the Customer to the use of information in accordance with the provisions of these Terms and Conditions.

Third Parties

16.4 These Terms and Conditions are made for the benefit of the parties to any Engagement in accordance with these Terms and Conditions and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.

Entire Agreement

16.5 These Terms and Conditions, along with any approved Quote, contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to these Terms and Conditions other than those expressly stated in it or necessarily implied by statute.

Severability

16.6 If a provision of these Terms and Conditions is invalid or unenforceable in a jurisdiction:

(a) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and

(b) that fact does not affect the validity or enforceability of that provision in another jurisdiction, or the remaining provisions.

No waiver

16.7 No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under these Terms and Conditions will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under these Terms and Conditions.

16.8 Time is of the essence of these Terms and Conditions, except that no delay by the Provider in exercising any right or power will operate as a waiver of that right or power.

16.9 Nothing in these Terms and Conditions, nor any act, matter or thing done under or by virtue of, or in connection with, any engagement will operate as a merger of any of the rights or remedies of the Provider in or under these Terms and Conditions or otherwise. All such rights and remedies of the Provider will continue in full force and effect.

16.10 Unless application is mandatory by law, no statute, ordinance, proclamation, order, regulation or moratorium present or future will apply to these Terms and Conditions so as to abrogate, extinguish, impair, diminish, fetter, delay or otherwise prejudicially affect any rights, powers, remedies or discretions given or accruing to the Provider under these Terms and Conditions.

Amendment

16.11 These Terms and Conditions may be varied by the Provider at their absolute discretion giving not less than 14 days written notice to the Customer. Clerical errors are subject to correction without notification.

Assignment

16.12 A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under these Terms and Conditions without the prior written consent of the other party. Governing Law and Jurisdiction

16.13 These Terms and Conditions and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by, and shall be construed in accordance with, the laws of Western Australia, Australia.

16.14 The parties irrevocably agree that the courts of Western Australia, Australia have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, these Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).