MINOR WORKS AGREEMENT

TOTAL EDEN PTY LTD - ABN 47 010 118 895

  1. Unless otherwise agreed in writing by Total Eden Pty Ltd (the Company), the Buyer agrees that it will be bound by these terms and conditions if the Buyer places an order with the Company and it is accepted by the Company. The Company is not bound by any terms and conditions contained in any document issued by the Buyer.

Orders, Quotations and Price

  1. A quotation provided by the Company, is an invitation to treat only. The Company reserves the right to reject any offer made by the buyer, and will only be deemed to have accepted the offer when a countersigned offer is provided by the Company to the Buyer.
  1. Once an order has been accepted by the Company, it cannot be cancelled by the Buyer. The supply of goods or services is subject to availability. The Company reserves the right to suspend or discontinue the supply of goods or services to the Buyer. If the Company is unable to supply all of the Buyer's order, these terms and conditions continue to apply to any part of the order supplied.
  1. Where a written quotation has been given by the Company, the selling price is the price specified in the quotation. In any other case, the Company's selling price is the price specified in the price list as at the date of dispatch. Unless otherwise stated, the selling price does not include GST. The Company may at any time change its price list to reflect, among other things, changes in exchange rates or the imposition of any duties, levies or other taxes and the Buyer is bound by those changes. The Buyer must accept any errors or omissions in invoicing and, where applicable, the Buyer must accept the amended pricing and pay the difference within the approved terms of trade.
  1. Once an offer has been accepted by the Company (the Contract), the Company shall carry out and complete the works in accordance to the Contract. The Buyer shall pay the Company for works completed as per the pricing indicated within the contract.

Delivery

  1. Unless otherwise agreed in writing by the Company, delivery is at the Company's premises. All freight from the Company's premises to the Buyer is at the Buyer's expense. If the Company arranges the carriage of the goods for delivery to the Buyer, the Company will be deemed to contract as agent for the Buyer, and the Buyer will bear all risks with respect to the goods during carriage and will likewise be responsible for effecting any insurance of the goods during carriage. The Company may charge a reasonable handling fee for all orders delivered to the Buyer. The Buyer indemnifies the Company for the cost of all transport arranged by the Company on the Buyer's behalf.
  1. If a delivery date is specified, that date is an estimate only and the Company is not liable for any delay in delivery. Time is not of the essence in relation to delivery and the Buyer must accept delivery and pay for the goods delivered, including transport costs if applicable, even if they are delivered after any specified delivery date.
  1. The Company may from time to time, be unable to deliver all goods or services in once installment. In the event that the Company needs to make multiple deliveries or mobilizations to complete the order, the Buyer fully indemnifies the Company for the additional costs incurred by the Company.

Inspection, Acceptance and Returns

  1. The Buyer must inspect the goods or services immediately following delivery or completion of the services (as the case may be). The Buyer may only return goods with the prior approval of the Company and within 30 days of the date of delivery in re-saleable condition and, where appropriate, in the original packaging. A reasonable handling fee for any returned goods will be charged to the Buyer.

Any claim that the goods or services are not in accordance with these terms and conditions (including if they are defective, damaged during delivery, are short delivered or services not as per contract) must be made at the time of delivery/services provided or in writing to the Company within 48 hours after delivery of the goods/completion of the services to the Buyer. If the Buyer fails to make a claim then, to the extent permitted by law, the goods or services are deemed to have been accepted by the Buyer and the Buyer must pay for the goods or services in accordance with these terms and conditions.

Payment

  1. Unless otherwise agreed, the Buyer must pay for goods or services ordered by the Buyer within 30 days from date of invoicing, or earlier.
  1. The Company may charge an administration fee for any payments by credit card. Time is of the essence in respect of the Buyer's obligation to make payment for goods or services supplied by the Company to the Buyer.
  1. If the Buyer does not make any payment by the due date, exceeds its credit limit at any time, commits any other material breach of these terms and conditions, or an insolvency event in respect of the Buyer arises or is reasonably suspected by the Company, the Company may (without limiting any other right or claim it may have against the Buyer) do any or all of the following:

a)charge the Buyer interest calculated on a daily basis on any portion of the Buyer's account that is overdue at the Australian & New Zealand Banking Group's reference rate for business loans, available to prime commercial customers, plus 5% calculated from the date the payment was due until the date payment is made (both dates inclusive);

b)vary or withdraw any approved credit limit and/or terms of trade;

c)cancel or suspend any unfilled orders or cease providing the services;

d)terminate any contracts between the Company and the Buyer and demand immediate payment of any moneys due and outstanding under those contracts;

e)cancel any rebate, discount or allowance due or payable by the Company as at the date of the event;

f)enter (at any time) any premises in which the Company's goods (including any merchandising materials) are stored, to enable the Company to inspect the goods and to reclaim possession of the goods without liability for the tort of trespass, negligence or payment of any compensation to the Buyer whatsoever; or

g)institute any recovery process as the Company in its discretion decides at the Buyer's cost and expense, including but not limited to, legal and mercantile agents costs on an indemnity basis.

  1. If any part of an invoice is in dispute, the balance will remain payable and must be paid when due. The Buyer has no right to set-off any claim against the Company from moneys owing to the Company.

Risk and Title

  1. Goods supplied by the Company to the Buyer are at the Buyer's risk immediately on the earlier of delivery to the Buyer or into the Buyer's custody, including its carrier or forwarder. The Buyer must insure the goods at its cost from delivery of the goods until they are paid for in full against such risks as are usual or common to insure against in a business of a similar nature to the Buyer.
  1. Except where expressly provided within the Contract, the Buyer shall be responsible for the case and security of the Works area from the date of acceptance of the Contract, to the time the works are considered Complete. Without limiting the generality of the Clause 11, the Buyer shall be responsible for the care of any and all works completed, goods delivered to site and any unfixed items which form part of the Works in Progress.
  1. Property in the goods supplied by the Company to the Buyer does not pass to the Buyer until all goods have been paid for in full. In the meantime, the Buyer takes custody of the goods and retains them only as fiduciary agent and bailee of the Company. Until all goods have been paid for in full:

a)to the extent possible, the Buyer must store the goods in a manner that shows clearly they are the property of the Company, maintain records relating to the goods, secure the goods from risk, damage and theft and ensure that the goods are kept in good and serviceable condition;

b)the Buyer may sell the goods, in the ordinary course of its business, but only as fiduciary agent of the Company. The Buyer must not represent to any third party that the Buyer is acting in any capacity for or on behalf of the Company and the Buyer has no authority to bind the Company to any contract or otherwise assume any liability for or on behalf of the Company. The Buyer receives all proceeds (including any proceeds from insurance claims) in trust for the Company and must keep the proceeds in a separate bank account until all liability to the Company is discharged;

c)if the Buyer uses the goods in some manufacturing or construction process of its own or of a third party, the Buyer must hold in trust for the Company that part of the proceeds of the manufacturing or construction process as is equal to the amount owing by the Buyer to the Company at the time of receipt of the proceeds.

d)the Buyer grants to the Company a security interest in respect of all goods supplied by the Company pending payment by the Buyer being a security interest under the Personal Properties Securities Act 2009 (PPSA). This security interest constitutes security for payment of all of the Buyer's indebtedness to the Company under these Terms and Conditions or otherwise;

e)the Buyer agrees that the Company may require the Buyer to take steps to ensure that the Company has an enforceable, perfected, maintained and otherwise effective purchase monies security interest in the goods;

f)the Buyer must reimburse the Company for all costs and/or expenses incurred or payable by the Company in relation to the registration of any notice of the Company's interest;

g)the Buyer agrees for the purposes of Sections 115(1) and 115(7) of the PPSA:

  1. that the Company need not comply with Sections 95, 118, 121(4), 125, 130, 132(3)(d) or 1234 of the PPSA; and
  2. Sections 142 and 143 are excluded.

h)for the purposes of Section 115(7) of the PPSA, the secured party need not comply with Sections 132 and 137(3) of the PPSA; _

i)the Buyer agrees not to exercise its rights to make any request of the Company under Section 275 of the PPSA to authorize the disclosure of any information under that Section or to waive any duty of confidence that would otherwise permit non-disclosure under that Section.

  1. The Buyer grants the Company an irrevocable mortgage over any current or future property until such time as all outstanding debts are paid and discharged. The Company shall not act unreasonably in discharging any mortgages once all payments are received.

Designs, Drawings and Instructions

  1. The Company will retain ownership and all copyright in relation to all designs and drawings prepared for or on behalf of the Buyer, despite any payment made in accordance with these terms of sale.
  1. Where the Supplier has followed a design or instruction furnished by or on behalf of the Buyer, the Buyer indemnifies and will keep the Company indemnified against all claims, damages, losses, penalties, costs and expenses to which the Company may become liable by reason of any work required to be done in accordance with those instructions or design including any infringement of any patent, registered design, copyright or any other right of a third party including moral rights.
  1. So far as permitted by law, the Company does not warrant, or guarantee the success or suitability of any design or instruction furnished or provided by the buyer.

Limitation of Liability

  1. Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Buyer is entitled to a replacement of refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. The Buyer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
  1. Notwithstanding any other clause to the contrary, the total liability of the Company to the Buyer arising out of or in connection with the Contract, its performance (or non-performance) or breach, whether such liability is based in contract, indemnity, equity, tort (including negligence of any kind), strict liability or otherwise shall not in any event exceed in the aggregate, an amount equal to the 100% of the Contract Sum of the Purchase Order [Separable Portion] as adjusted in accordance with the Contract, under which the liability of the Company arises.
  1. Notwithstanding any other clause to the contrary in this Agreement, the Company shall not in any event be liable to the Buyer for any consequential loss or damage arising from a breach of contract, tort (including negligence), under statute or any other basis in law or equity including, but without limitation, the following:

a)Loss of profits;

b)loss of revenue;

c)loss of production;

d)loss or denial of opportunity;

e)loss of goodwill;

f)loss of use; and

g)any indirect, remote, abnormal or unforeseeable loss,

h)or any similar loss whether or not in the reasonable contemplation of the Parties at the time of execution of this Agreement.

  1. Insofar as permitted by law, the Companyshall not in any event be liable to the Buyer for any claim to the extent that any cost, loss, damage or expense claimed is caused or contributed to by the acts or omissions of the Buyer or its officers, employees or agents or any other third party not engaged by the Company.

Warranties

  1. The Company warrants that at all times, it will use reasonably qualified and suitable staff to complete the works. The Company shall takeall measures necessary to protect people and property, avoid unnecessary interference with the buyer’s enjoyment of the property.
  1. The Company shall satisfy all legislative requirements except those expressly excluded in the Contract.
  1. The Company shall possess all necessary insurances including but not limited to:

a)Public Liability Insurance

b)Workers Compensation Insurance

c)Contract Works Insurance

d)Motor Vehicle Insurance

Proof of insurances may be provided to the Buyer upon request.

contract, tort (including negligence), under statute or any other basis in law or equity

  1. The Buyer shall grant the Company access to the works area so far as required to complete the works. Failure to provide such access may result in delay to completion and the Company shall be entitled to an extension of time and reasonable compensation for the delay.
  1. The Buyer acknowledges that time is not of the essence, The Company will endeavor to complete the works without delay, and complete the works by the date agreed in the Contract (the Date of Practical Completion).
  1. If the works are not completed by the date of Practical Completion, the Company shall be entitled to an Extension of Time. In the event that the delay is caused by the Buyer, its employees, agents or other third parties not employed by the Company, the Company shall be entitled to reasonable costs resulting from the delay.
  1. Notwithstanding any other clause in the Contract, the Buyer full indemnifies the Company for any costs, loss, damage or expense incurred as a result of the delay and warrants not to pursue the Company in contract, tort (including negligence), under statute or any other basis in law or equity.

Variations

  1. The Company shall not vary the Works without prior discussion and approval by the Buyer. If the Company identifies works which have not been included in the original Contract price, the Company notify the Buyer of the Variation and shall in a reasonable timeframe provide the Buyer a price to complete the Variation.
  1. In the event that the physical conditions on the site and its near surrounds differ materially from the physical conditions which should have reasonable been allowed for at the time of pricing, the Company shall be entitled to both an extension of time and a variation.
  1. The Buyer shall not unreasonably withhold approval of a Variation.

Dispute Resolution

  1. If a difference or dispute (together called adispute) between the parties arises in connection with the Contract, that either party shall, by hand, give the other party a written notice of the dispute, adequately identifying and providing details of the dispute.
  1. Within 14 days after receiving a notice of dispute, the parties shall confer at least once to resolve the dispute or agree on methods of doing so. If a dispute is not resolved within 18 days of the issue of the notice of dispute, the dispute shall be referred to arbitration.
  1. If the parties cannot agree on the Arbitrator once shall be appointed by the President of the Institute of Arbitrators & Meditators Australia.
  1. Each party shall bare its own legal costs.
  1. Nothing herein shall prejudice the right of a party to institute proceedings to enforce a payment due under the contract or to seek injunctive or urgent declaratory relief.

Breach and Termination