TERMS OF TRADE

1. Interpretation and Definitions

1.1 Defined terms in these Terms:-

(a) “Claim” includes any complaint, action, suit, cause of action, proceedings, arbitration, debt due, accounts, costs and expense (including any legal costs and expense), claim, demand, verdict or judgement arising under the provisions of any law, statute, award, common law, order or determination (whether or not known).

(b) “Company” means Arid To Oasis Solutions Pty Ltd ACN 122 776 845 trading as Auzscot Constructions , who may be referred to in these Terms as “us” or “we” or “our” and includes its successors and assigns or any person acting on behalf of and with our authority.

(c) “Customer” means the person and/or entity as described in the Quote”, who in these Terms may be referred to as “you” or “your”.

(d) “Guarantors” means the Director/s of the Customer.

(e) “Fees” means all fees and charges of any nature or description (including any interest or enforcement expenses) that is payable by you to us, including pursuant to the Quote. This may include any payment claims from us to you.

(f) “Goods” means any goods obtained by you from us from time to time pursuant to the Quote or otherwise or as supplied by us to you.

(g) “GST” means a tax, levy, duty, charge or deduction together with any related additional tax, interest, penalty, fine or other charge, imposed by A New Tax System (Goods & Services Tax) Act and any Act imposing or relating to the imposition or administration of a goods and services tax and any regulation pursuant to any such Act.

(h) “Payment Claim” means any claim for Fees or other amounts or part thereof.

(i) “PPSA” means the Personal Property and Securities Act 2009 (“Cth”) and includes any amendments or regulations made there under and includes any subordinate legislation.

(j) “PMSI” means purchase money security interest in terms of section 14 of the PPSA.

(k) “PPSA Register” means the Personal Property Securities Register established pursuant to the provisions of the PPSA.

(l) “Services” means the services provided by us to you in terms of a Quote (as may be amended) and includes all work and labour completed (or to be completed) and services rendered by us.

(m) “Terms” means these Terms of Trade.

(n) “Quote” means our quotation provided by us to you for Works and includes any quotation, proposal, electronic or other records, documents, including the goods and/or services specified in any formal or informal scope of works, quotation, any advice or recommendations, work or labour done, services rendered or outlining the supply of any goods or services by us to you.

(o) “Works” means the provision of all Services and/or Goods.

2. General

2.1 These Terms shall apply to the exclusion of all others. You acknowledge that these Terms embodies the whole agreement between us and you and agree to be bound by them.

2.2 If you accept our Quote you must confirm with us in writing or provide us with a Purchase Order. Upon this occur, you acknowledge and agree that:-

(a) we will complete the Works on the terms and conditions set out in the Quote and your confirmation (whether in the form of a Purchase Order or other confirmation provided by you of acceptance of the Quote from time to time) and payment of your Fees shall otherwise be in accordance with these Terms;

(b) once accepted by you in accordance with its terms, the Quote remains in full force and effect and binding on us and you in all respects, except as is expressly varied under these Terms;

(d) you are bound by, and taken to have exclusively accepted, our Terms, and

(e) any terms and conditions contained in your order documentation or other communication from you inconsistent with our Terms (including a statement by you that your terms and conditions prevail) are hereby expressly excluded. Our Terms prevail and must be given utmost effect.

2.3 If you are a trustee of a trust then you are bound to the terms of this Quote and these Terms both as trustee and in your personal capacity and warrant to us that the Quote and Terms is entered into in the due and property administration of the trust and that the trust has authority to be bound by these Terms.

2.4 In these Terms:-

(a) words importing the singular shall include the plural and vice versa; words importing any gender shall include any other gender; and words importing persons shall include bodies corporate and unincorporated and vice versa as well as an individual;

(b) where the Customer is more than one person, the provisions of these Terms are binding on such persons jointly and severally;

(d) headings are for ease of reference only and shall not affect the interpretation of these Terms;

(e) “business day” means a day other than a Saturday, Sunday or a day which is a public holiday in Townsville, Queensland and all references to dates and times are to Townsville time;

(f) all references to “$”are to the lawful currency of Australia.

3. Your Acceptance and Formation of Terms

3.1 Upon you accepting our Quote, whether in writing or by the provision to us of a Purchaser Order, these Terms will be binding on us and you in full and of full force and effect.

4. Privacy Act

4.1 You and/or the Guarantors grant us authority under the terms of the Privacy Act 1998 to obtain credit information from a credit reporting agency and you hereby acknowledges that we have informed you that personal information about you (or your directors, partners or trustees if applicable) may be disclosed to or acquired from a credit reporting agency.

4.2 You and/or the Guarantors hereby agree that we may contact any trade references at any time now or in the future for the purpose of assessing credit worthiness.

4.3 You hereby agree that in the event of default of payment of any debt owing to us, we may disclose all information relating to outstanding or current accounts to its collections agency or solicitors for the purpose of obtaining any amounts outstanding.

4.4 You and/or the Guarantors consent to us being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988).

4.5 You and/or the Guarantees agree that personal credit information provided may be used and retained by us for the following purposes and for other purposes as shall be agreed between the you and us or required by law from time to time:

(a) provision of Goods;

(b) marketing of Goods by us, our agents or distributors in relation to the Goods;

(c) analysing, verifying and/or checking you credit, payment and/or status in relation to provision of Goods or the Guarantors;

(d) processing of any payment instructions, direct debit facilities and/or credit facilities requested by you ; and/or

(e) enabling the daily operation of your account and/or the collection of amounts outstanding in relation to your account or in relation to the Goods

5. Charges, Invoicing and Payment

5.1 You must make payment to us for all Goods and/or Services rendered in accordance with the Quote, unless otherwise specified, permitted or amended in these Terms.

5.2 If the Quote or amounts owing to us are for ongoing Works, we will submit a Payment Claim for Goods and Services completed in periodical intervals of not greater than one (1) month. The value of work completed in that periodical interval shall be determined by us (acting reasonably).

5.3 All funds paid to is must be paid as cleared funds into our nominated account without any set-off or deduction whatsoever.

5.4 You are not entitled to set off against or deduct from the Fees or Payment Claim any sums owed or claimed to be owed to you by us nor to withhold payment of any part of the Fees or Payment Claim because any dispute has arisen whether it be in relation to the amount owing to us or the Works.

5.5 Time for payment of all amounts payable to us shall be of the essence in all respects.

5.6 All payments must be by payment into our nominated bank account by online transfer or by direct deposit and within seven (7) days after the date of our tax invoice and/or the or Payment Claim.

5.7 We may in our absolute discretion require instalment payments to us in accordance with any tax invoice issued by us to you. This may include ongoing periodical payments whilst the Works are being completed.

5.8 We may in our absolute discretion an upfront deposit to be paid to us before we complete any Works.

5.9 If you dispute any Payment Claim then you must provide us with written notice within seven (7) days after receiving the or Payment Claim and identify in clear terms why you dispute the Payment Claim (or part of it), providing us with all supporting information and documents we requested in this regard. We will determine the dispute acting reasonably and our decision will be final. We may also stop all Works (including provision of all Services and supply of all Goods) until the dispute is resolved and all amounts owing to us are paid in full.

5.10 Notwithstanding that specified above, may be at any time and in our absolute discretion require that you reduce the amount owing to us or pay all Fees owing to us in full before completing any further Works.

5.11 We may at our sole discretion request that you pay a deposit to us for any Works and you agree that we are not required to undertake any Works (including the supply of any Goods) unless and until you have paid that deposit in cleared funds.

5.12 We may at any time and without prejudice to any of our rights request payment in advance of supplying the Goods or undertaking any Services or to place a ‘stop supply’ meaning that no further orders will be accepted by the you.

6. Variations to Works

6.1 Any variation to the Works (including, but not limited to, any variation as a result of additional works required due to hidden or unidentifiable difficulties beyond our reasonable control such as hard rock barriers below the surface or iron reinforcing rods in concrete) will be made in writing and charged for on the basis of our quotation (or hourly rates if applicable) and will be shown as variations on our tax invoice and in addition to the Fees and amounts specified in the Quote. Payment for all variations must be made in full at their time of completion.

7. Underground Locations

7.1 Prior to us commencing any work in respect of the Services, you must advise us of the precise location of all underground services on the site and clearly mark the same. The underground mains & services you must identify include, but are not limited to, electrical services, gas services, sewer services, pumping services, sewer connections, sewer sludge mains, water mains, irrigation pipes, Telstra cables, fibre optic cables, oil pumping mains, and any other services that may be on site.

7.2 Whilst we will take all reasonable care to avoid damage to any underground services, you agrees to indemnify us and hold us indemnified in respect of all and any liability, Claims, loss, damage, costs and fines as a result of damage to services not precisely located and notified before we commence any Services or other works.

8. Unpaid Amounts

8.1 Any accounts or amounts (including nay Fees) which are not paid by you in terms of these Terms will incur an interest charge, which shall be at the rate of 13% per day on all outstanding balances by you.

8.2 Should any amount not be paid in accordance with these Terms you shall be liable for all legal costs (on a solicitor client basis), agent fees or any other fees, damages and charges incurred by us in recovering any amounts outstanding from you. You agree to indemnify (and keep indemnified) us for any costs and expenses incurred by us under this clause.

9. GST

9.1 The prices contained in this Quote do not include GST unless specifically stated as ‘inclusive of GST’. If GST is imposed on any supply by us pursuant the Quote, you shall on demand pay to us in addition to any consideration for the supply (“GST-exclusive consideration”), an additional amount calculated by multiplying the prevailing GST rate by the GST-exclusive consideration.

10. Cyber Alert and Transfer of Funds

10.1 People have lost money when hackers impersonate a business or by modifying electronic communication. It is crucial that you do not transfer any money until you first contact us and verify our bank account details.

11. Your Corporate Changes

11.1 You agree to notify us in writing of any change of ownership of your corporate structure within (7) days from the date of such change and further agree to indemnify (and keep indemnified) us against any loss or damage incurred by it as a result of your failure to notify us of any such change.

12. Delivery Risk

12.1 We or our nominated carrier shall deliver the Goods to you at your nominated address and delivery shall be deemed to have taken place when you take possession of the Goods (or fail to take possession of the Goods)

12.2 Delivery of the Goods to a third party nominated by you is deemed to be delivery to you for the purposes of these Terms.

12.3 You and/or your authorised persons must make all reasonable efforts to be present and take delivery of the Goods whenever they are tendered for delivery.

12.4 Delivery costs are in addition to the Fees unless specially stated as being included in the Quote.

12.5 All delivery costs will be quoted to you at the earliest opportunity and generally prior to delivery of the Goods and will be outlined in any Payment Claim issued by us to you.

12.6 In the event that you are unable to take delivery of the Goods as arranged then we shall be entitled to charge a reasonable fee for re-delivery.

12.7 In the event that you or your authorised agent is not available to take delivery of the Goods and has not provided adequate direction or equipment to unload the Goods, then we shall unload and deliver the Goods as we see fit and you shall assume all risk and liability for any alleged damage to the Goods or the placement of the Goods during delivery. Should the provisions of this clause apply, we will under no circumstances be required to return to your site or address to move the Goods to your preferred location.

12.8 We may at our discretion deliver the Goods by separate instalments. Each instalment of Goods delivered may be invoiced by us under a separate Payment Claim and paid by you in accordance with the provisions these Terms.

12.9 Risk in the Goods will pass to you on delivery of the Goods to you or at your nominated address or collection of the Goods by you (as applicable). If you or nay delivery agent fail to accept delivery or request a delay in delivery, risk in the Goods will be borne by you from the time of such failure or request (as the case may be) and you indemnify us (and shall keep us indemnified) from any Claim, loss or liability whatsoever arising from your failure or request.

12.10 Our failure to deliver any Goods under these Terms shall not entitle either party to treat these Terms as repudiated.

12.11 We shall not be liable for any loss or damage whatsoever due to failure by us to deliver the Goods (or any of them) promptly or at all. This clause shall not merge on completion or termination of these Terms.

12.12 We shall not be liable for any loss or damage caused in accessing your premises beyond the reasonable control of us (including, without limitation, damage to pathways, driveways and concreted or paved or grassed areas).

13. Title, Lien and Security

13.1 Until such time as payment in full has been received by us in cleared funds, title in the Goods shall remain vested in us and until such time as payment is received you shall ensure that you do not grant any lien or security interest over the Goods or do anything which encumbers the Goods.

13.2 You acknowledge and agrees these Terms constitutes a security Terms for the purposes of the PPSA and that we may register our security interest as a PMSI on the PPSA Register. You grant us a PPSA security interest over the Goods. Despite anything to the contrary contained herein or any other rights which we may have, you also agree that until the Fess and all moneys are paid to us in full, you grant to us over you and the Guarantors the right to register a PPSA security interest on the PPSA Register to secure payment of all Fees and other amounts owing to us.

13.3 If you dispose of the Goods before payment to us of all Fees, the sale proceeds of such disposal are the property of us and you hold the proceeds on trust for us and in your disposing of the Goods before payment to us does so as the our fiduciary agent.

13.4 It is further agreed that:

(a) where practicable the Goods shall be kept separate and identifiable until we have received clear payment and all other obligations of you are met; and

(b) until such time as ownership of the Goods passes from us to you, we may give notice in writing to you to return the Goods or any of them to us. Upon such notice, the rights of you to obtain ownership or any other interest in the Goods shall cease; and

(d) if you fail to return the Goods to us then we or our agent may enter upon and into land and premises owned, occupied or used by you, or any premises as the invitee of you where the Goods are situated and take possession of the Goods; and

(e) you are only a bailee of the Goods and until such time as we have received payment in full for the Goods then we shall hold any proceeds from the sale or disposal of the Goods on trust for us; and

(f) you shall not deal with the money of ours in any way which may be averse to us; and

(g) you shall not charge the Goods in any way nor grant nor otherwise give any interest in the Goods while they remain the property of us; and

(h) we can issue proceedings to recover the Fees and costs of the Goods sold notwithstanding that ownership of the Goods may not have passed to you; and

(i) until such time that ownership in the Goods passes to you, if the Goods are converted into other products, the parties agree that we will be the owner of the end products.

13.5 If we fail to register its interest on the PPSA Register or elects not to do so, then such action will be without prejudice to our rights under the terms of these Terms or at law.

13.6 Where the PPSA applies to action taken by us, you waive your right to receive any notices required under sections 95, 118, 121, 130, 132 or 135 of the PPSA. You waive your rights under section 157 of the PPSA to receive notice of a verification statement.

13.7 In consideration of us providing the Services and Goods to you in terms herein contained, you irrevocably and unconditionally grant to us and charge all of your rights, title and interest (whether joint or several) in any land, real property, or other assets capable of being charged and owned by you either now or in the future to secure the performance by you of your obligations under these Terms, including payment of the Fees (which shall include any interest or charges thereon). This includes you granting an equitable mortgage over any real property and this applies to any real property owned by you or as trustee, or any real property owned by a company of which you ate the director. We may register a caveat to secure our interest in any such Real property and you irrevocably appoint us as your attorney to sign all consents to caveat on your behalf.

13.8 You hereby further acknowledges that we has a lien over all Goods in your possession belonging to you to secure payment of any or all amounts outstanding from time to time.

13.9 You acknowledge and agree that we may register a caveat over your real property (whether owned at the date of these Terms or acquired in future) in respect of all amounts owing to us under these Terms and you hereby grant an express right and interest in any such real property to us.

13.10 You hold your insurance for the Goods on trust for us and must pay to us the proceeds of any insurance in the event of the Goods being damaged before payment to us and in in this regard, the production of these Terms shall be sufficient evidence of our right to receive the insurance proceeds direct from your insurer without the need for any person dealing with us to make further enquiries.

13.11 We may enter your premises or elsewhere within business hours and seize any Goods without us having to give notice to you and you waive the right to receive any statutory or PPSA notice in this respect.

13.12 Subject to compliance with any laws, we may sell the Goods to recover all amounts due and payable to us (including the Fees) should payment not be completed by you in accordance with the terms and conditions of these Terms.

13.13 We have, and can exercise, a lien over any of your Goods, documents, records, files, plans and other property left in our possession from time to time as security for the payment of all monies owing to us by you from time to time.

13.14 You irrevocably appoint us and each director of us as your true and lawful attorney to perform all necessary acts to give effect to our rights under any contract or agreement with you including the rights under this clause.

14. Insurance Proceeds

14.1 In the event the Goods are damaged or destroyed following delivery but prior to title in the Goods passing to you, we are entitled to receive all insurance proceeds payable for the Goods. The production of \ these Terms is sufficient evidence of our rights to receive the insurance proceeds without the need for any person dealing with us to make further enquiries

15. Goods – Natural Products

15.1 You acknowledge and accept that if the Goods are natural products, they are a natural product sourced from Australian quarries and the aesthetics of the Goods are subject to variation. Goods will not be accepted for return other than in accordance with clause 17.

15.2 If the Goods are natural products, you shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be either greater or lesser than the quantity purchased provided that:

(a) such discrepancy in quantity shall not exceed five percent (5%); and

(b) the Fees shall be adjusted pro rata to the discrepancy.

16. Warranty

16.1 Warranty on any Works is in accordance with the terms of the Quote, or if nothing is included in the Quote, subject to all laws, the warranty on all Goods is subject to a manufactures warranty only and warranty on the Services is limited to us re-completing the Services again.

16.2 To the extent permitted by statute, no warranty is given by us as to the quality or suitability of the Goods or Services for any purpose and any implied warranty is expressly excluded. We shall not be responsible for any loss or damage to the Goods, or caused by the Goods, or any part thereof however arising.

16.3 You must:

(a) within twenty four (24) hours of delivery of the Goods (time being of the essence) inspect the Goods and notify us of any alleged defect, shortage in quantity, damage or failure to comply with the description or Quote; and

(b) allow us to immediately inspect the Goods in the event you allege any defects or damage to the Goods.

(d) For defective Goods, our liability is limited to replacing the Goods. Subject to any laws to the contrary, we may rectify any damaged Goods if we are able to do so.

17. Default and Consequences of Default

17.1 If you default in payment of any Fees or other amounts payable to us under these Terms (including any Payment Claim), you shall indemnify us from and against all costs and disbursements incurred by us in pursuing the debt including legal costs on a solicitor and own client basis and our collection agency costs or any associated or related costs

17.2 Without prejudice to any other remedies we may have, if at any time you are in breach of any obligation (including those relating to payment), we may suspend or terminate the supply of Goods to you or the provision of any Services and any of our other obligations under these Terms, even if we are partially through completion of certain works for you under any Quote or otherwise. You will remain liable to us for all Works completed up to the date of termination of these Terms, including for all Services rendered and all Goods supplied to you or ordered by us for you (whether delivered to you or not). We will not be liable to you for any loss or damage suffered or any or Claim you because we have exercised our rights under this clause.

17.3 We may terminate these Terms and cancel delivery of Goods at any time before the Goods are delivered by giving written notice to you without the necessity to provide a reason. On giving such notice, We shall not be liable for any loss or damage whatever arising from such cancellation.

17.4 In the event that you cancels delivery of Goods or terminates these Terms you shall be liable to us for any loss incurred by us (including, but not limited to, any loss of profits or delivery costs) up to the time of cancellation or termination. This clause shall not merge on completion or termination of these Terms.

18. Representations and Indemnity

18.1 You acknowledge and warrant to us that in deciding whether to accept the Quote in terms contained herein you have relied entirely on your own enquiries and obtained any independent legal or other advices that you may wish to obtain. Further, you acknowledge, warrant and represent to us that:-

(a) you are solvent and able to pay your debts as and when due;

(b) if a company, you are duly incorporated and validly existing under the law of its State of incorporation and have full power and authority to enter into and perform the terms herein contained.;

(d) or you not acting as agent for any person or corporation.

(e) You hereby disclaim any right to rescind, or cancel any contract with us or to sue for damages or to claim restitution arising out of any misrepresentation made to you by us and you acknowledge that the Goods are bought relying solely upon your own skill and judgment.

18.2 You hereby irrevocably indemnifies and continue to indemnify us to the full extent permitted by law against all Claims (including but not limited to legal costs on an indemnity basis), and demands made by any person and for any loss or damage whatsoever arising out of, or alleged to arise out of or resulting from breach of the terms of these Terms by you, including any consequential loss.

18.3 We are not liable to you (except to the extent that liability cannot be excluded) for:-

(a) any loss, damage or expense sustained by you or any other party or any

(b) any rectification costs or third party claims; or

(c) any indirect or consequential losses, loss of profits or use (including loss of revenue, loss of profit, loss of custom, loss of goodwill, loss of overhead recovery, loss of business opportunity, loss of the use of property, loss of contract, loss of production, loss of financing charges or cost recovery, loss of the use of money and payment of liquidated sums or damages under any other agreement), whether by way of death, personal injury, delay, financial loss or otherwise arising from or incidental to the operation of the Goods, the Services carried out on the Customers equipment or from any other act, error or omission, whether occasioned by the negligence of us, our servants, agents, employees, the Customer, a third party or otherwise.

19. COMPLIANCE WITH LAWS

19.1 You and us shall comply with the provisions of all statutes, regulations and bylaws of government, local and other public authorities that may be applicable to the Works.

19.2 You shall obtain (at your expense) all licences and approvals that may be required for the Works.

19.3 You agree that the site will comply with any occupational health and safety laws relating to building/construction sites and any other relevant safety standards or legislation. You are solely responsible for compliance with all laws and regulations in this regard.

20. BUILDING AND CONSTRUCTION INDUSTRY PAYMENTS ACT 2004

20.1 If there are any disputes or claims for unpaid Goods and/or Services then, subject to the terms of these Terms, the provisions of the Building and Construction Industry Payments Act 2004 QLD shall apply.

20.2 Nothing in these Terms is intended to have the effect of contracting out of any applicable provisions of the Building and Construction Industry Payments Act 2004 QLD, except to the extent permitted by the Act where applicable.

21. GENERAL

21.1 These Terms cannot be assigned.

21.2 The Quote and Terms shall be governed by the laws from time to time in force in the State of Queensland.

21.3 These Terms can only be amended with the consent of both parties and must be in writing.

21.4 If any term clause or provision of these Terms shall be deemed or judged invalid for any reason whatsoever, such invalidity shall not affect the validity or operation of any other term clause or provision of these Terms except only so far as may be necessary to give effect to such invalidity.

21.5 No waiver by any party or a right or a default hereunder shall be deemed a waiver by such party of any subsequent right or default whether of a like nature or otherwise.

22. GUARANTEE AND INDEMNITY

22.1 If you are a private company, the person who confirms acceptance of the Quote or issues us with a Purchase Order warrants to us that the Guarantors agree to be bound by these Terms in all respects, including this clause.

22.2 The Guarantors acknowledge that they requested us to provide the Works and in consideration of that agreement hereby (and if more than one jointly and severally) guarantee to us the due and punctual performance by the Customer of all the terms and conditions herein conditioned and further agree to indemnify and keep us indemnified against any Claim, loss or damage however arising which we may suffer in consequence of any failure by the Customer to perform its obligations under these Terms (including those relating to the payment of the Fees, interest, costs and expenses) or for any other reason whatever and this guarantee shall not be effected or discharged by the granting to the Customer of any time or other indulgence or consideration or transaction whereby the liability of those signatories would, but for the provisions of this clause, have been effected or discharged.

Terms of trade