Big Red Landscapes

ABN: 54 885 335 803

Terms and condition of sale

1. INTERPRETATION

In these terms and conditions of sale (Terms):

(a) Agreement means the agreement in relation to the supply of Goods by Big Red Landscapes to the Customer comprising a Quotation, Order and/or Invoice and incorporating these Terms;

(b) Customer means the customer named in a Quotation, Order and/or Invoice in respect of the supply of Goods by Big Red Landscapes ;

(d) Goods means the specific goods manufactured or distributed by Big Red Landscapes referred to in a Quotation, Order and/or Invoice;

(e) Invoice means an invoice issued by Big Red Landscapes to the Customer, whether in printed or electronic form, in respect of the supply of Goods by Big Red Landscapes to the Customer;

(f) Order means an order for Goods to be supplied by Big Red Landscapes to the Customer, whether made on Big Red Landscapes order form, on the Customer’s order form or otherwise, whether in printed or electronic form, and includes email correspondence; and

(g) Quotation means a quotation or similar document, whether in printed or electronic form, provided byBig Red Landscapes to the Customer in respect of the proposed supply of Goods by Big Red Landscapes to the Customer;

2. APPLICATION

These Terms:

(a) apply to the supply by Big Red Landscapes to the Customer of any Goods to the exclusion of all other agreements, terms or conditions, including any terms that are included in any document, order form or electronic transmission provided by the Customer;

(b) prevail to the extent of any inconsistency with any provisions contained in any Order, Quotation, Invoice or any other document created by Big Red Landscapes or the Customer and whether in printed or electronic form; and

(c) together with the relevant Quotation, Order and/or Invoice constitute the entire agreement between Big Red Landscapes and the Customer in relation to the supply of any Goods.

3. QUOTATIONS, ORDERS AND PRICES

(a) Any Quotation provided by Big Red Landscapes to the Customer for the proposed supply of Goods is:

(i) valid for 30 days; and

(ii) an invitation to treat only.

(b) The prices set out in any Quotation are based on Big Red Landscapes estimated costs as at the date of the Quotation. If an Order is not received within 15 days of quote acceptance, Big Red Landscapes reserves the right to update its prices at any time prior to the date of delivery of Goods or for the purposes of its Invoice, due to any increases its costs. All prices are exclusive of Goods and Services Tax and any other taxes, duties or levies, which, if applicable will be added in to the price and paid by the Customer.

(c) The Customer is responsible for ensuring that the details of its requirements contained in any Quotation or Order are complete, accurate and consistent with up to date authorised pricing provided by Big Red Landscapes. Big Red Landscapes may at its discretion reject any Order received from the Customer.

(d) Irrespective whether the Quotation has been signed by the Customer, the Agreement is formed (and the Quotation, Order and these Terms are binding) when Big Red Landscapes accepts, in writing or by electronic means, an Order from the Customer or provides the Customer with the Goods.

(e) In the event of any inconsistencies in the specification of Goods between the Quotation and an Order (and/or any supporting materials or drawings to the Order) from the Customer, the Quotation shall prevail.

4. CUSTOMER ACCOUNTS, GUARANTEES AND CREDIT REPORTS

The Customer may apply to purchase Goods on credit terms by opening an account with Big Red Landscapes, Big Red Landscapes may also require that any director or shareholder of the Company provide a guarantee in respect of the Customer’s payment and other obligations under the Agreement as a condition to granting credit terms. Credit terms are at the discretion of Big Red Landscapes and may be amended or withdrawn by Big Red Landscapes at any time.

5. VARIATION AND CANCELLATION

Any variation or cancellation of an Order must be approved in writing by Big Red Landscapes. If Big Red Landscapes accepts a variation or cancellation, it is entitled to charge a reasonable fee for any increased costs that it may incur or for any resulting work to be done by Big Red Landscapes for the Customer. Big Red Landscapes may make modifications to the Goods the subject of an Order if required for any reason.

6. EXCLUSION OF LIABILITY

(a) To the extent permitted by law, and other than as stated in the Terms or any written warranty statement, Big Red Landscapes is not liable to the Customer in any way arising under or in connection with the sale, installation, use of, storage or any other dealings with the Goods by the Customer or any third party.

(b) To the extent permitted by law, Big Red Landscapes is not liable for any direct or consequential loss, loss of profit or revenue, economic loss, business interruption, loss of production, production stoppage, or loss of data incurred by the Customer, or for any damage, loss, liability, cost or expense incurred by the Customer by reason of late delivery or other delay, defective or faulty materials or workmanship, or any negligence, act or omission by Big Red Landscapes or any of its officers, employees, contractors or agents.

7. IMPLIED TERMS AND LIMITATION OF LIABILITY

All representations, conditions, warranties and remedies of any kind, whether expressed or implied by statute, common law, equity, trade, custom, usage or otherwise are expressly excluded to the maximum extent permitted by law. Where any liability cannot be excluded, to the extent permitted by law, Big Red Landscape’s total aggregate liability in relation to the Agreement whether arising in contract, tort (including negligence), indemnity, breach of a statutory requirement or any other common law or equitable cause of action is limited to the value of Orders relating to Goods supplied to the Customer by Big Red Landscapes in the period of 6 months prior to the date of the last Invoice provided in relation to the Goods the subject of the liability claim. Big Red Landscape’s liability for indirect, special or consequential loss or damage is excluded to the maximum extent permitted by law. Where the Customer is a "Consumer" (as that term is defined in the Australian Consumer Law), or where the Customer is liable to a "Consumer" for a breach of the consumer guarantees under the Australian Consumer Law, the liability of Big Red Landscapes to the Customer is limited to the replacement of the Goods or a refund of the price of the Goods. Nothing in the Terms is to be interpreted as excluding, restricting or modifying or having the effect of excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of goods or supply of services which cannot be excluded, restricted or modified.

8. TERMS OF PAYMENT

The Customer must pay for Goods in full prior to delivery in immediately available funds or within 30 days from the date of

invoice, as required by Big Red Landscapes. Big Red Landscapes reserves the right to vary the terms of payment or to at any time require payment in full

prior to delivery of Goods if Big Red Landscape’s credit terms are not complied with, or if Big Red Landscapes reasonably considers the Customer to be

a credit risk. Big Red Landscapes may impose a fee for credit card payments, to cover its reasonable costs incurred in accepting payment

of that type, which will not exceed 1% of the total payment amount.

9. LATE PAYMENTS

If the Customer defaults in payment by the due date of any amount payable to Big Red Landscapes, then all money which would become payable by the Customer to Big Red Landscapes at a later date on any account, becomes immediately due and payable without the requirement of any notice to the Customer, and Big Red Landscapes may, without prejudice to any of its other accrued or contingent rights:

(a) charge the Customer interest on any sum due at the prevailing rate pursuant to the Penalty Interest Rates Act 1983 (Sa) plus 4% for the period from the due date until the date of payment in full;

(b) charge the Customer for, and the Customer must indemnify Big Red Landscapes from, all costs and expenses (including without limitation all legal costs and expenses) incurred by it resulting from the default or in taking action to enforce compliance with the Agreement or to recover any Goods;

(d) by written notice to the Customer, terminate the Agreement with the Customer.

10. DELIVERY

Goods will be delivered to the address specified on the Order as the address for delivery unless otherwise agreed with the customer. If a delivery date or time is requested by the Customer, Big Red Landscapes will use its reasonable endeavours to comply with the Customer's request. Big Red Landscapes is not liable for any loss, damage, cost or expense or other liability incurred in the event of delay in delivery.

11. CLAIMS

Subject to any rights that cannot be excluded by the Australian Consumer Law or any other law:

(a) the Customer must inspect the Goods on delivery or at the point when the Customer collects the Goods from Big Red Landscapes or at such other agreed time and the Customer has the sole responsibility of satisfying itself that the Goods are suitable for the use of the Customer.

(b) the Customer is deemed to have accepted the Goods as being in accordance with an Order unless it notifies Big Red Landscapes in writing of any claim within 14 days of receipt of the Goods; and

(c) no return of allegedly defective Goods will be accepted by Big Red Landscapes unless Big Red Landscapes has given prior written authorisation for the return and agreed in writing that it will replace the Goods or provide a refund to the Customer less any costs incurred by Big Red Landscapes.

The Customer is responsible for all costs of returning the Goods and Big Red Landscapes shall be entitled to charge reasonable handling, repackaging or other costs incurred by Big Red Landscapes in relation to acceptance of any returned Goods.

12. DISPUTE RESOLUTION

(a) Any dispute between Big Red Landscapes and the Customer arising out of or in connection with this Agreement must be notified in writing to the other party (Notice). Following receipt of the Notice, senior representatives of both parties must attempt to negotiate a resolution to the dispute in good faith.

(b) If the dispute cannot be resolved within 30 days of the receipt of the Notice, the dispute must be referred to mediation by a mediator agreed to by both the Customer and Big Red Landscapes, or failing agreement by a mediator appointed by the President of the Resolution Institute.

13. TITLE

(a) Property in the Goods will not pass to the Customer until the Customer has paid for the Goods in full. The risk of loss or damage to the Goods shall pass to the Customer upon delivery. Until Goods are paid for the Customer will clearly mark the Goods as the property of Big Red Landscapes.

(b) Until payment for the Goods is made Big Red Landscapes reserves the right to retake physical possession of the Goods in full or partial satisfaction of the debt, and the Customer consents to Big Red Landscapes or its agents entering the Customer's premises for that purpose. Big Red Landscapes has the right to resell or otherwise dispose of the recovered Goods without reference to the Customer. This clause applies despite any incorporation of the Goods supplied by Big Red Landscapes into any plant, material, goods or property of the Customer.

(c) The Personal Property Securities Act 2009 (Cth) (PPSA) applies to these Terms. For the purposes of the PPSA, terms used in this clause that are defined in the PPSA have the same meaning as in the PPS. These Terms are a security agreement and Big Red Landscapes has a purchase moneys security interest in all present and future goods supplies by Big Red Landscapes to the Customer and the proceeds of the Goods. The security interest is a continuing security interest.

(d) To the extent the law permits, for the purposes of sections 115(1) and 115(7) of the PPSA, Big Red Landscapes need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135 and 157 and sections 96, 125, 129, 142 and 143 are excluded, and for the purpose of section 115(7) of the PPSA, Big Red Landscapes need not comply with sections 132 and 137(3). (e) The Customer agrees not to exercise its rights to make any request of Big Red Landscapes under section 275 of the PPSA, to authorise the disclosure of any information under that section or to waive any duty of confidence that would otherwise permit non‐ disclosure under that section. (f) If Big Red Landscapes exercises a right, power or remedy in connection with this Agreement, that exercise is taken not to be an exercise of a right, power or remedy under the PPSA unless Big Red Landscapes states otherwise at the time of exercise. However, this clause does not apply to a right, power or remedy which can only be exercised under the PPSA.

(g) The Customer consents to Big Red Landscapes perfecting its interest in any Goods supplied by Big Red Landscapes to the Customer by registration on the Personal Property Securities Register, and agrees to do anything reasonably requested by Big Red Landscapes to enable it to do so.

14. CONFIDENTIALITY

The Customer must keep confidential and not disclose to any person without the prior written consent of Big Red Landscapes, any information (in any form or media and whether or not identified as confidential) in any way relating to Big Red Landscapes, its business, the Goods or any other products manufactured or distributed by Big Red Landscapes, that is not generally and legally available to the public.

15. INTELLECTUAL PROPERTY

(a) All intellectual property rights subsisting in the Goods (including designs, drawings, logos, patents, trademarks and copyrights) (Intellectual Property Rights), will remain the exclusive property of Big Red Landscapes.

(b) The Customer will under no circumstances take any action that jeopardises any Intellectual Property Rights of Big Red Landscapes and will immediately notify Big Red Landscapes of any knowledge or suspicion it has of improper use of Big Red Landscape's Intellectual Property Rights. At the request of Big Red Landscapes, the Customer will take all reasonable steps to help Big Red Landscapes defend the Intellectual Property Rights.

(c) To the extent permitted by law, and as between Big Red Landscapes and Customer, Big Red Landscapes will own all rights in any adaptation, copy, derivation, development, enhancement, improvement or modification of or to the Goods. The Customer agrees to execute all necessary documents and do all other things that may be reasonably required by Big Red Landscapes to give effect to this clause.

16. TERMINATION

(a) Big Red Landscapes may terminate the Agreement by giving written notice to the Customer if the Customer is in breach of any of the terms of the Agreement and fails to remedy that breach within 7 days of receipt of a notice from Big Red Landscapes specifying the nature of the breach and requiring the Customer to remedy the breach within that period of time.

(b) Subject to any applicable statutory stay of proceedings, and without prejudice to Big Red Landscape's other remedies at law, Big Red Landscapes may cease or suspend the supply of any further Goods to the Customer or by written notice to the Customer, terminate the Agreement if:

(i) where the Customer is a natural person and becomes bankrupt or enters into any scheme of arrangement or any assignment or composition with or for the benefit of his or her creditors or any class of his or her creditors generally;

(ii) where the Customer is a corporation, it enters into any scheme of arrangement or any assignment or composition with or for the benefit of its creditors or any class of its creditors generally, or is in liquidation or receivership, appoints an administrator or is subject to any similar or analogous circumstances.

(c) If Big Red Landscapes terminates the Agreement then Big Red Landscapes may refuse to accept Orders, cancel or suspend Orders that have been accepted and/or require immediate payment of any amounts owing by the Customer to Big Red Landscapes.

17. FORCE MAJEURE

Neither Big Red Landscapes or the Customer are liable in any way howsoever arising under the Agreement to the extent that it is prevented from acting by events beyond its reasonable control including, without limitation, industrial disputes, strikes, lockouts, accident, breakdown, import or export restrictions, government sanctioned restrictions, health related events (such as epidemics and/or pandemics), acts of God, acts or threats of terrorism or war. If an event of force majeure occurs, Big Red Landscapes may suspend or terminate the Agreement by written notice to the Customer.

18. GOVERNING LAW AND JURISDICTION

This Agreement is governed by the laws of the State of Adelaide and the parties submit to the non-exclusive jurisdiction of the

South Australian courts.