Terms and Conditions

1. Application

These T&Cs, and terms and conditions of the Customer, will apply to any order for and any supply of Goods and/or Services by “The SurfCoast Engineer” to the Customer.

2. Order for Goods / Services

2.1 Any quotation by “The SurfCoast Engineer” does not constitute an offer to supply.

2.2 Unless otherwise stated by “The SurfCoast Engineer”, any quotation by “The SurfCoast Engineer” will remain valid for 30 days from the date of the quotation provided that “The SurfCoast Engineer” may withdraw or vary a quotation at any time prior to “The SurfCoast Engineer” acceptance of an Order.

2.3 Any Order by the Customer to “The SurfCoast Engineer” and/or any acceptance of any Goods and/or Services by the Customer will constitute agreement to these T&Cs by the Customer.

2.4 No Order by the Customer will be binding on “The SurfCoast Engineer” unless “The SurfCoast Engineer” accepts the Order.

2.5 If “The SurfCoast Engineer” accepts an Order, the parties will have created a binding Contract and “The SurfCoast Engineer” will supply the Goods and/or Services to the Customer, and the Customer will pay the Price to “The SurfCoast Engineer” in accordance with the terms of the Contract (which will include these T&Cs), but the Contract will be subject to:

(a) the availability of the materials necessary to supply the Goods; and

(b) “The SurfCoast Engineer” agreeing to grant credit to the Customer (if the Customer is seeking credit terms) else paying in full prior to completion of works

2.6 The Customer is not entitled to cancel any Order or Contract and must pay to “The SurfCoast Engineer” any costs associated with the Customer purporting to cancel any Order or Contract.

2.7 The Customer must provide to “The SurfCoast Engineer” all information, instructions, reports, drawings, plans, specifications, properties and facts relevant to the Goods and/or Services and performance of “The SurfCoast Engineer” obligations, at the time the Customer requests any quotation from “The SurfCoast Engineer” and prior to providing any Order to “The SurfCoast Engineer”.

2.8 If at any time “The SurfCoast Engineer” considers that any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer to “The SurfCoast Engineer” are not sufficient to enable “The SurfCoast Engineer” to supply the Goods and/or Services to the Customer in accordance with the Contract, the Customer must, at the Customer’s cost, provide such further information, documents or assistance as “The SurfCoast Engineer” considers reasonably necessary.

2.9 “The SurfCoast Engineer” will be entitled to rely on the accuracy of any information, instructions, reports, drawings, plans, specifications, properties and facts provided by the Customer.

2.10 If there are any errors in any information, instructions, reports, drawings, plans, specifications, properties or facts provided by the Customer to “The SurfCoast Engineer”, “The SurfCoast Engineer” will, in addition to “The SurfCoast Engineer” other rights under these T&Cs or at law, be entitled to vary the Price.

2.11 The Customer must ensure the specifications and properties of Goods and/or Services stated in any Order by the Customer will be fit for the intended purpose of the Goods and/or Services.

2.12 The Customer will be responsible for the quantity of any Goods and/or Services in any Order and “The SurfCoast Engineer” will not have any liability to the Customer if there is any excess or shortfall of the Goods and/or Services for the intended purpose.

2.13 “The SurfCoast Engineer” may cancel any Contract at any time prior to delivery of the Goods and/or Services with no liability other than to repay any amount of the Price paid in advance of the cancellation.

3. Price

3.1 Unless otherwise agreed by “The SurfCoast Engineer” in writing, the Price will be “The SurfCoast Engineer” quoted price on the date of despatch of the Goods and/or Services and is subject to variation (whether before or after the acceptance of an Order or before or after the formation of a Contract or during the term of a Contract).

3.2 Unless otherwise agreed by “The SurfCoast Engineer” in writing, “The SurfCoast Engineer” may invoice the Customer for Goods and/or Services on the date “The SurfCoast Engineer” supplies the Goods and/or Services.

3.3 Unless otherwise stated by “The SurfCoast Engineer” in writing, the Price is in Australian dollars.

3.4 Unless otherwise stated by “The SurfCoast Engineer” in writing, the Price is exclusive of any delivery charges and exclusive of GST.

3.5 The Customer must not withhold, make deductions from, or set-off, payment of any money owed to “The SurfCoast Engineer” for any reason.

3.6 The Customer must pay “The SurfCoast Engineer” on demand interest at the rate of 10% per annum on all overdue amounts owed by the Customer to “The SurfCoast Engineer”, calculated daily.

3.7 “The SurfCoast Engineer” may charge, in addition to the Price, any other fees, charges and surcharges that “The SurfCoast Engineer” notifies to the Customer from time to time.

4. Delivery of Goods

4.1 If “The SurfCoast Engineer” agrees to deliver Goods:

(a) “The SurfCoast Engineer” will charge delivery charges, waiting time and other charges in “The SurfCoast Engineer” price list or otherwise nominated by “The SurfCoast Engineer” from time to time;

(b) “The SurfCoast Engineer” will endeavour to deliver the Goods to the Delivery Address on the Delivery Date; and

(c) “The SurfCoast Engineer” may charge further delivery charges if the Customer is unable to receive delivery of the Goods at the Delivery Address or on the Delivery Date or in accordance with any other delivery arrangements.

4.2 “The SurfCoast Engineer” will only deliver Goods during “The SurfCoast Engineer” usual business hours unless “The SurfCoast Engineer” agrees otherwise in writing.

4.3 “The SurfCoast Engineer” will not be liable for any delay in the delivery of Goods to the Delivery Address.

4.4 “The SurfCoast Engineer” may deliver Goods in separate instalments.

4.5 The Customer will ensure a member of the Customer’s Personnel will be at the Delivery Address on the Delivery Date to sign the delivery docket on the Customer’s behalf.

4.6 “The SurfCoast Engineer” may deliver Goods to the Delivery Address regardless of whether there is anyone at the Delivery Address at the time of delivery.

4.7 The Customer agrees:

(a) “The SurfCoast Engineer” responsibility for delivery of Goods will cease at the kerbside or public roadway frontage of the Delivery Address;

(b) the Customer must provide safe access for delivery of Goods including but not limited to providing safety measures such as traffic control; and

(c) “The SurfCoast Engineer” may refuse to deliver Goods, and return the Goods at the Customer’s cost, if “The SurfCoast Engineer” or a member of “The SurfCoast Engineer” Personnel considers it would be unsafe to deliver the Goods.

4.8 The signature of a member of the Customer’s Personnel on the delivery docket will represent the Customer’s acknowledgement that the Goods comply with the Contract and these T&Cs.

4.9 A certificate signed by a director or secretary of “The SurfCoast Engineer” in relation to delivery of the Goods will be prima facie evidence of the fact and the Customer will not object to the admissibility of such a certificate in any legal proceedings.

4.10 The Customer must inspect any Goods immediately on collection or delivery of the Goods.

4.11 The Customer may not return any Goods or any part of the Goods to “The SurfCoast Engineer” unless the Customer notifies “The SurfCoast Engineer” within 14 days of delivery of the reason for seeking return and “The SurfCoast Engineer” authorises the return in writing. Any approved return shall be at the Customer’s sole cost and “The SurfCoast Engineer” may decline any refund after

examination of the returned goods in “The SurfCoast Engineer” absolute discretion. Any re-delivery of the returned goods to the Customer will be at the Customer’s sole cost.

5. Risk

5.1 If “The SurfCoast Engineer” agrees to deliver Goods, the risk in the Goods will pass to the Customer, and the Customer will be deemed to have accepted the Goods, immediately when the Goods are delivered to the Delivery Address regardless of whether there is anyone at the Delivery Address at the time of delivery.

5.2 If the Customer agrees to collect the Goods, the risk in the Goods will pass to the Customer, and the Customer will be deemed to have accepted the Goods, immediately when the Goods are placed on any vehicle or means of conveyance.

6. Title

6.1 The Customer will not receive title to Goods until the Customer makes full payment of the Price and any other amounts payable to “The SurfCoast Engineer”.

6.2 Until title in the Goods passes to the Customer in accordance with these T&Cs, the Customer will:

(a) be only a bailee of the Goods;

(b) ensure the Goods are kept separate and identifiable from other goods;

(d) return any Goods to “The SurfCoast Engineer” immediately on request;

(e) authorise “The SurfCoast Engineer” or any agent of “The SurfCoast Engineer” to enter any land and premises owned, occupied or controlled by the Customer where the Goods are located and take possession of the Goods; and

(f) hold the proceeds from any sale or disposal of the Goods on trust for “The SurfCoast Engineer”, and “The SurfCoast Engineer” may repossess, retain, deal with and/or sell the Goods as “The SurfCoast Engineer” determines in “The SurfCoast Engineer” absolute discretion.

6.3 “The SurfCoast Engineer” may, for the purposes of exercising “The SurfCoast Engineer” rights under clause 6.2, enter any premises owned, occupied or controlled by the Customer and remove the Goods including but not limited to by detaching or unfixing the Goods from any goods or land to which the Goods are attached or fixed.

7. Credit and Personal Property Securities

7.1 The Customer must make full payment of the Price and any other amounts payable to “The SurfCoast Engineer” before “The SurfCoast Engineer” supplies Goods and/or Services to the Customer unless “The SurfCoast Engineer” has granted credit terms to the Customer in which case the Customer must make full payment of the Price and any other amounts payable to “The SurfCoast Engineer” within 7 days of the date of the invoice from “The SurfCoast Engineer” to the Customer (or such alternative period agreed by “The SurfCoast Engineer” in writing).

7.2 If “The SurfCoast Engineer” grants credit terms to the Customer, then to secure the punctual payment of all amounts owed by the Customer to “The SurfCoast Engineer”, the Customer grants to “The SurfCoast Engineer”:

(a) a security interest (as defined under the PPSA) over all present and after acquired property of the Customer in relation to which the Customer can be a grantor of a security interest under the PPSA, whether or not the Customer has title to the property, including but not limited to all PPSA retention of title property (as defined under section 51F of the Corporations Act); and

(b) a fixed charge over all present and after-acquired property of the Customer in relation to which the Customer cannot be a grantor of a security interest under the PPSA.

7.3 The Customer agrees and acknowledges “The SurfCoast Engineer” may (without limiting “The SurfCoast Engineer” other rights under these T&Cs, at law or otherwise) lodge caveats over the Customer's property and take any other action to secure and enforce “The SurfCoast Engineer” security under clause 7.2.

7.4 The Customer must reimburse “The SurfCoast Engineer” for the full amount of any bank or other fees associated with any dishonoured payments or cheques and any legal, debt recovery or other expenses incurred by “The SurfCoast Engineer” associated with any action by “The SurfCoast Engineer” to recover money from the Customer.

7.5 The Customer:

(a) agrees with “The SurfCoast Engineer” that neither the Customer, nor “The SurfCoast Engineer” will disclose information of the kind specified in section 275(1) of the PPSA (except in the circumstances required by sections 275(7)(b) to (e) of the PPSA);

(b) agrees that, to the extent permitted under section 115(1) of the PPSA, the following provisions of the PPSA do not apply: sections 95, 118, 121(4), 125, 130, 132(3)(d), 135, 138B(4), 142 and 143;

(c) agrees that, to the extent permitted under section 115(7) of the PPSA, the following provisions of the PPSA do not apply: sections 127, 129(2), 129(3), 132, 134(2), 135, 136(5) and 137;

(d) acknowledges that “The SurfCoast Engineer” may, at the Customer's cost, register one or more financing statements in relation to any security;

(e) waives, if permitted under the PPSA, the Customer’s right under section 157 of the PPSA to receive notice of any verification statement relating to the registration of any financing statement or any related financing change statement; and

(f) will not, without prior written notice to “The SurfCoast Engineer”, change the Customer’s name or initiate any change to any documentation registered under the PPSA.

(g) agrees to make themselves aware of any reference documentation regarding PPSA statements

8. Force Majeure

“The SurfCoast Engineer” will not be liable to the Customer for any failure to perform, or delay in performing, “The SurfCoast Engineer” obligations under these T&Cs if the failure or delay is due to any cause beyond “The SurfCoast Engineer” reasonable control and if any such failure or delay continues for a period of 14 days “The SurfCoast Engineer” may terminate any affected Contract.

9. Confidential Information and Intellectual Property

9.1 The Customer will not use, or disclose, any Confidential Information disclosed to the Customer.

9.2 All Intellectual Property Rights in all designs, drawings, technical information and documents created by “The SurfCoast Engineer” in relation to the Goods and/or Services will remain with “The SurfCoast Engineer” and will not be assigned to the Customer and no supply of Goods and/or Services to the Customer will grant to the Customer any Intellectual Property Rights in respect of the Goods and/or Services or such designs, drawings, technical information or documents.

9.3 If “The SurfCoast Engineer” supplies any designs, drawings, technical information or documents to the Customer as part of the Goods and/or Services, “The SurfCoast Engineer” grants the Customer a non-exclusive, non-transferable, right to use the designs, drawings, technical information and documents strictly and only for the purposes of the Customer’s use of the Goods and/or Services.

9.4 The Customer warrants that “The SurfCoast Engineer” use of any designs, instructions or documents provided by the Customer to “The SurfCoast Engineer” will not infringe the Intellectual Property Rights of any other party.

10. Approvals

The Customer must, at the Customer’s expense, obtain all Approvals necessary for and incidental to the supply of the Goods and/or Services.

11. Security

“The SurfCoast Engineer” will not be required to provide a bank guarantee or any other form of security and the Customer will not be entitled to retain any retention money from the Price for any reason.

12. Warranty

12.1 “The SurfCoast Engineer” does not warrant the Goods and/or Services are fit for any purpose whether or not made known to “The SurfCoast Engineer” or any member of “The SurfCoast Engineer” Personnel.

12.2 “The SurfCoast Engineer” excludes all express and implied conditions and warranties in relation to the Goods and/or Services except in relation to those goods assembled, manufactured or modified by “The SurfCoast Engineer” and those conditions or warranties that cannot be excluded by law. “The SurfCoast Engineer” liability under any such conditions or warranties is limited to, at “The SurfCoast Engineer” option, arranging to replace or repair the Goods and/or the outcome of the Services or resupplying the Goods and/or Services and in relation to goods assembled, manufactured or modified by “The SurfCoast Engineer” this liability is limited to 1 year from the date of delivery.

12.3 Any fault due to abuse, misuse or improper installation is excluded from warranty.

12.4 Nothing in these T&Cs are intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 or any Fair Trading Act except to the extent permitted by such Acts.

13. Liability

13.1 “The SurfCoast Engineer” liability for any Liability or Claim in relation to these T&Cs, any Contract, and any supply of Goods and/or Services (whether under statute, contract, tort, negligence or otherwise) will be limited to the amount of the Price paid by the Customer to

“The SurfCoast Engineer”.

13.2 “The SurfCoast Engineer” will not be liable to the Customer for any Liability or Claim of any kind arising directly or indirectly (whether under statute, contract, tort, negligence or otherwise) in relation to any indirect or consequential loss (including but not limited to any loss of actual or anticipated profits, revenue, savings, production, business, opportunity, access to markets, goodwill, reputation, publicity, or use) or any remote, abnormal or unforeseeable loss or any similar loss whether or not in the reasonable contemplation of the parties.

14. Release and Indemnity

The Customer indemnifies “The SurfCoast Engineer” and each member of “The SurfCoast Engineer” Personnel from and against any Liability or Claim arising directly or indirectly in relation to:

(a) the accuracy of all information provided by the Customer to “The SurfCoast Engineer” in relation to the Services, the Delivery Address or any other matters;

(b) the Customer’s breach of these T&Cs or any Contract;

(d) “The SurfCoast Engineer” or any member of “The SurfCoast Engineer” Personnel delivering the Goods in accordance with the Customer’s instructions;

(e) “The SurfCoast Engineer” or any member of “The SurfCoast Engineer” Personnel entering the Delivery Address;

(f) damage to the property of the Customer or any third party during any delivery of Goods;

(g) any spillage, breakage or contamination of Goods during any transport or delivery;

(h) the Goods and/or Services not being fit for any particular purpose;

(i) any tests in relation to Goods and/or Services;

(j) the Customer or any member of the Customer’s Personnel directly or indirectly causing any delay in the supply of any Goods and/or Services;

(k) “The SurfCoast Engineer” having to resupply the Goods and/or Services, or undertake any rework, as a result of the actions or omissions of the Customer or any third party;

(l) the Customer or any member of the Customer’s Personnel refusing to accept any delivery;

(m) the Customer or any member of the Customer’s Personnel purporting to cancel any Order or Contract; and

(n) any proceedings, claims and demands in relation to any secured property.

15. Termination

15.1 “The SurfCoast Engineer” may immediately terminate, or suspend the performance of, any Contract and the Customer must immediately pay any money owed to “The SurfCoast Engineer” if:

(a) the Customer breaches a term of these T&Cs or any Contract and does not remedy the breach within 7 days of receiving a notice from “The SurfCoast Engineer” requiring the Customer to do so;

(b) the Customer breaches a term of these T&Cs or any Contract which is not capable of remedy;

(d) an Insolvency Event arises in relation to the Customer.

16. Definitions

In these T&Cs:

“Approvals” means all approvals, authorisations, permits, consents, determinations and licences which are issued, or required to be issued, by any Authority to permit the full and proper performance of “The SurfCoast Engineer” obligations under these T&Cs; “Authority” means any government or governmental, semi-governmental, administrative or judicial body, tribunal, department, commission, authority, agency, minister, statutory corporation, instrumentality or entity; “Carbon Costs” means the costs of “The SurfCoast Engineer” or a related body corporate acquiring any emissions permits or carbon offsets required under any emissions trading legislation or paying any carbon tax in relation to supply of the Goods and/or Services to the Customer;

“Claim” means any actual, contingent, present or future claim, demand, action, suit or proceeding for any Liability, restitution, equitable compensation, account, injunctive relief, specific performance or any other remedy of whatever nature and however arising, whether direct or indirect, and whether in contract, tort (including but not limited to negligence) or otherwise;

“Confidential Information” means information, whether in visual, oral, documentary, electronic, machine-readable, tangible, intangible or any other form, relating to “The SurfCoast Engineer” or any related entity of “The SurfCoast Engineer” including but not limited to any

information relating to any business, products, markets, operations, processes, techniques, technology, forecasts, strategies or any other matter;

“Contract” means a contract formed as a result of the acceptance of an Order by “The SurfCoast Engineer”;

“Control” has the meaning set out in the Corporations Act;

“Corporations Act” means the Corporations Act 2001 ;

“Customer” means the customer set out in any quotation, offer or other document provided by “The SurfCoast Engineer” (or, in the absence of such information, the customer who placed the Order);

“Delivery Address” means the address for the delivery of the Goods and/or Services in a Contract;

“Delivery Date” means the date for the delivery of the Goods and/or Services in a Contract;

“Goods” means the goods in a Contract;

“Insolvency Event” means any of the following, or any analogous, events:

(a) the Customer disposes of the whole or any part of the Customer’s assets, operations or business other than in the ordinary course of business;

(b) the Customer ceases, or threatens to cease, carrying on business;

(d) any step is taken by a mortgagee to take possession or dispose of the whole or any part of the Customer’s assets, operations or business;

(e) any step is taken for the Customer to enter into any arrangement or compromise with, or assignment for the benefit of, the Customer’s creditors or any class of the Customer’s creditors; or

(f) any step is taken to appoint an administrator, receiver, receiver and manager, trustee, provisional liquidator or liquidator of the whole or any part of the Customer’s assets, operations or business;

“Intellectual Property Rights” means any present or future rights conferred by statute, common law or equity in any part of the world in relation to any confidential information, copyright, trade marks, service marks, designs, patents, circuit layouts, plant varieties, business names, domain names, inventions, trade secrets or other results of intellectual activity in any industrial, commercial, scientific, literary or artistic fields;

“Liability” means any loss, liability, cost, payment, damages, debt or expense (including but not limited to reasonable legal fees);

“Order” means any written or verbal order by the Customer to “The SurfCoast Engineer” for Goods and/or Services;

“Personnel” means any employee, servant, contractor, subcontractor, agent, partner, director or officer of a party;

“PPSA” means Personal Property Securities Act 2009 ;

“Price” means the price of the Goods and/or Services as nominated by “The SurfCoast Engineer” from time to time;

“Services” means the services in a Contract and any services associated with the Goods;

“Supplier” means the entity that accepts the Order to supply Goods and/or Services to the Customer; and

“T&Cs” means these Terms and Conditions of Supply.

17. Miscellaneous

17.1 The parties agree:

(a) no Contract will create any partnership, joint venture, agency or relationship of employment between the parties;

(b) these T&Cs or any Contract may only be amended with “The SurfCoast Engineer” express written agreement;

(d) “The SurfCoast Engineer” rights under these T&Cs or any Contract do not exclude any other rights of “The SurfCoast Engineer”;

(e) no Contract will be a sale by sample;

(f) in the event of any dispute, “The SurfCoast Engineer” records will be conclusive evidence;

(g) the actions of any person claiming to have the Customer’s authority will bind the Customer to the extent permitted by law;

(h) if any provision of these T&Cs or any Contract is unenforceable, the provision will be severed and the remaining provisions will continue to apply;

(i) the Customer must immediately provide written notice to “The SurfCoast Engineer” if there is any change in the Control of the Customer;

(j) “The SurfCoast Engineer” may assign any rights or benefits under any Contract or these T&Cs or any Contract to any third party;

(k) the Customer may only assign any rights or benefits under any Contract or these T&Cs or any Contract with “The SurfCoast Engineer” prior written consent; and

(l) these T&Cs and any Contract will be governed by the laws of, and the parties submit to the jurisdiction of the courts of, the state in which the Goods and/or Services are delivered.

17.2 In these T&Cs:

(a) the headings will not affect interpretation;

(b) the singular includes the plural and vice versa;

(d) a reference to a document includes the document as novated, altered, supplemented or replaced;

(e) a reference to a party includes the party’s executors, administrators, heirs, successors in title, permitted assigns and substitutes;

(f) a reference to a person includes a natural person, body corporate, partnership, trust, association or any other entity;

(g) a reference to a statute, ordinance, code or law includes regulations, rules and other instruments under the statute, ordinance, code or law and any consolidations, amendments, re-enactments or replacements;

(h) a word or expression defined in the Corporations Act has the meaning given to the word or expression in the Corporations Act;

(i) the meaning of general words is not limited by specific examples introduced by “including”, “for example” or similar expressions;

(j) any agreement, representation, warranty or indemnity by two or more parties binds those parties jointly and severally;

(k) any undertaking by a party not to do any act or thing will be deemed to include an undertaking not to permit or suffer the doing of that act or thing;

(l) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of these T&Cs; and

(m) if a day on or by which an obligation must be performed or an event must occur is not a business day, the obligation must be performed or the event must occur on or by the next business day.