Fusion Field Services Pty Ltd

ABN: 44 667 461 056

(referred to in these terms as “Fusions Field Services”)

Terms of trade

1 Definitions and interpretation

1.1 Definitions

Additional Charge means fees or charges for additional work performed by Fusion Field Services as a result of any of the matters set out in clause 6 or 8, calculated in accordance with Fusion Field Services’ then current prices and/or expenses incurred by Fusion Field Services.

Customer means the person or entity identified on a Quote or Order as the customer or client and includes the Customer’s agents and permitted assigns.

Goods means any goods supplied by Fusion Field Services including materials supplied in the course of providing Services.

Intellectual Property Rights means intellectual property rights at any time protected by statute or common law, including copyright, trade marks, patents and registered designs.

Loss includes, but is not limited to, costs (including all legal costs paid or payable by Fusion Field Services on a full indemnity basis), expenses, lost profits, award of damages, personal injury and property damage.

Order means an order for Goods or Services arising from the acceptance of a Quote in accordance with clause 3, including any Order that is varied pursuant to these Terms.

PPS Law means:

(a) the Personal Property Security Act 2009 (Cth) (PPS Act) and any regulation made at any time under the PPS Act (each as amended from time to time); and

(b) any amendment made at any time to any other legislation as a consequence of a PPS Law.

Quote means a written description of the Goods or Services to be provided, an estimate of Fusion Field Services’ charges for the performance of the required work (or the hourly rates at which the work will be performed) and any estimate of the time frame for the performance of the work.

Services means the services to be provided by Fusion Field Services to the Customer in accordance with a Quote and these Terms.

Terms means these Terms.

1.2 Interpretation

In these Terms, unless the context otherwise requires:

(a) a reference to a party to these Terms or any other document or arrangement includes that party’s executors, administrators, successors, agents and permitted assigns; and

(b) headings are for ease of reference only and do not affect the meaning or interpretation of these Terms.

2 General

(a) These Terms apply to all transactions between the Customer and Fusion Field Services relating to the provision of Services. This includes all quotations, contracts and variations. These Terms prevail over Terms contained in any document of the Customer or elsewhere.

(b) Acceptance of these terms occurs by the Customer signing (manually or with electronic signature) and returning (in hard copy or electronically) a copy of these terms or otherwise accepting a Quote which attached these terms, through any of the means provided by clause 3(e).

(c) The variation or waiver of a provision of these terms or a party’s consent to a departure from a provision by another party is ineffective unless in writing signed by the parties.

3 Quotes

(a) Fusion Field Services may provide the Customer with a Quote. Any Quote issued by Fusion Field Services is valid for: (i) the duration specified on the Quote; or

(ii) if no duration is specified on the Quote, 30 days from the date of issue.

(b) Quotes are based upon the cost of materials available at the time of preparation of the Quote and assume the timely supply by the Customer to Fusion Field Services of any necessary material, instructions and access to premises.

(c) Quotes may be amended or withdrawn at any time prior to acceptance by the Customer.

(d) Fusion Field Services is not obliged to commence work until the Quote has been accepted by the Customer (referred to in these terms as an Order) and any deposit specified in the Quote or otherwise required by clause 7 has been paid by the Customer.

(e) Acceptance of a Quote occurs by the Customer either: (i) signing (manually or with electronic signature) and returning (in hard copy or electronically) a copy of these terms that were attached to the Quote;

(ii) confirming acceptance of the quote through Xero or any other accounting software through which Fusion Field Services provides the Quote to the Customer;

(iii) providing a written communication to Fusion Field Services indicating that the terms of the Quote are satisfactory to the Customer and/or that the Customer wishes for Fusion Field Services to proceed with the supply of Goods or Services specified in the Quote;

(iv) providing verbal communication of the kind set out at clause (iii), if such communication is considered by Fusion Field Services in its absolute discretion to be satisfactory acceptance of the Quote in the circumstances and Fusion Field Services subsequently commences the supply of Goods or Services specified in the Quote;

(v) making part of full payment for the Goods or Services specified in the Quote.

(f) Fusion Field Services may amend any Quote before works have been commenced to take into account any rise or fall in the cost of completing the Order. Fusion Field Services will notify the Customer of any amendment as soon as practicable, at which point the amended Quote will be the estimate or Quote for the purposes of these Terms.

(g) An indication in a Quote of the time frame for the provision of the Goods or Services is an estimate only and is not a fixed time frame. Subject to any obligations in respect of consumer guarantees under the Australian Consumer Law, this estimate is not binding upon Fusion Field Services.

4 Supply of Goods and Services

(a) Following acceptance of the Quote, the Customer will notify Fusion Field Services of the time when the site will be ready for the Goods and Services to be supplied.

(b) The Customer must provide clear and timely instructions to Fusion Field Services to convey all information which is reasonably required to enable Fusion Field Services to supply the Goods and Services.

(c) Fusion Field Services may in its absolute discretion refuse to provide Goods or Services where: (i) Goods or materials are unavailable for any reason whatsoever;

(ii) payment for Goods or Services previously provided to the Customer or any related corporation of the Customer or to any other party who is, in the reasonable opinion of Fusion Field Services, associated with the Customer under the same or another supply contract, has not been received by Fusion Field Services.

(d) An Order cannot be cancelled without the prior written consent of Fusion Field Services. Where an Order is cancelled, the Customer indemnifies Fusion Field Services against any Losses incurred by Fusion Field Services as a result of the cancellation. This includes, but is not limited to, loss of profit from other orders foregone as a result of the scheduling of the Order which is subsequently cancelled.

5 Warranties

(a) Fusion Field Services warrants that: (i) Goods supplied to Customer will be of acceptable quality, within the meaning of section 54 of the Australian Consumer Law;

(ii) Services supplied to the Customer will be performed with reasonable care and skill to the standard generally accepted within the industry;

(iii) Goods and Services supplied to Customer will be fit for any particular purpose for which the Goods or Services are being acquired by the Customer, provided that the purpose is made known by the Customer to Fusion Field Services prior to supply.

6 Variations

(a) The Customer may request that its Order be varied by providing a request in writing to Fusion Field Services. A request for a variation must be agreed to in writing by Fusion Field Services in order to have effect.

(b) If the Customer wishes to vary its requirements after a Quote has been prepared by Fusion Field Services or after the placement of an Order, Fusion Field Services reserves the right to vary the Quote to include any Additional Charges. A revised Quote issued by Fusion Field Services in respect of the requested variation supersedes the original Quote. If the revised Quote only specifies additional work, the Quote for that additional work will be in addition to the immediately preceding Quote for the Goods or Services or both.

(c) Any previously agreed time for the provision of the Goods or Services will be automatically extended to account for the delay caused by the variation.

7 Invoicing and payment

(a) Fusion Field Services may at its discretion invoice and require payment from the Customer of a non-refundable deposit prior to the supply of any Goods or Services.

(b) Unless otherwise specified in the Quote, Fusion Field Services will issue invoices to the Customer as follows: (i) for any deposit pursuant to clause 7(a), following acceptance of the Quote;

(ii) upon completion of the provision of the Goods or Services or any time thereafter, for the balance of the amounts payable as specified in the Quote and any Additional Charges.

(c) The amount payable by the Customer will be the amount set out in the invoices. This will be calculated as set out in the Quote plus any Additional Charges.

(d) The Customer must pay the amounts invoiced: (i) by the time specified on the invoice; or

(ii) if no time is specified on the invoice, within 7 days of a valid tax invoice being issued to the Customer.

(e) Fusion Field Services may in its complete discretion apply any payment received from the Customer to any amount owing by the Customer to Fusion Field Services.

(f) The Customer is not entitled to set-off, deduct, withhold or otherwise retain any money owing to Fusion Field Services under any circumstances, including where: (i) there is a default or alleged default by Fusion Field Services relating to the supply of allegedly faulty or defective Goods, provision of Services to an inadequate standard, delay in the provision of Goods or Services or any other alleged breach of these Terms; and/or;

(ii) the Customer asserts any other claim against the Fusion Field Services, including a claim arising under statute or equity.

Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.

(g) If any invoice is due but unpaid: (i) Fusion Field Services may withhold the provision of any further Goods or Services until overdue amounts are paid in full;

(ii) Interest will accrue on the overdue amounts at the rate of 10% per year, calculated daily and payable on demand;

(h) If any invoice remains unpaid for a period of more than 30 days after its due date, Fusion Field Services may in its complete discretion cause the amount owing to be listed with a credit reporting or default listing agency or website.

(i) All costs and expenses associated with collecting overdue amounts, including (but not limited to) all legal fees and internal costs and expenses of Fusion Field Services, are to be paid by the Customer on an indemnity basis as a debt due and payable under these Terms.

(j) The Customer and Fusion Field Services agree to comply with their obligations in relation to Goods and Services Tax (GST) under the A New Tax System (Goods and Services Tax) Act 1999 and any other applicable legislation governing GST.

(k) All payments to Fusion Field Services by the Customer must be made to Fusion Field Services, BSB 062 692 Account Number 7683 3224. Fusion Field Services’ bank details will not change. If the Customer receives any communication purporting to be from Fusion Field Services notifying of any change in bank details, or any invoice purporting to be from Fusion Field Services with bank details that are different to a previous invoice, the Customer should contact Fusion Field Services directly to confirm the bank details for payment of invoices. Any payments that are made to an entity other than Fusion Field Services in relation to Goods or Services supplied by Fusion Field Services, including as a result of fraudulent conduct by an entity other than Fusion Field Services, will not be treated as payment for the Goods or Services.

8 Additional Charges

Fusion Field Services may require the Customer to pay Additional Charges in respect of Costs incurred by Fusion Field Services as a result of:

(a) reliance on inadequate or incorrect information, material or access to premises provided by the Customer or information, material or access supplied later than required by Fusion Field Services in order for it to provide the Goods or Services within the specified time frame (if any).

(b) cancellation by the Customer of an Order where cancellation results in Loss to Fusion Field Services;

(c) factors relating to the site of the Services which were unknown at the time of the Quote;

(d) Government or council taxes or charges not included in the Quote; or

(e) additional work required by the Customer or any other occurrence which causes Fusion Field Services to incur costs in respect of the Customer’s Order additional to the quoted cost.

9 Acceptance of Goods

If the Customer fails to advise Fusion Field Services in writing of any fault in Goods or failure of Goods to accord with the Customer’s Order within 7 days of delivery, the Customer is deemed to have accepted the Goods and to have accepted that the Goods are not faulty and accord with the Customer’s Order. Nothing in this clause affects the Customer’s rights for any alleged failure of a guarantee under the Australian Consumer Law.

10 Title and risk

(a) Risk in Goods passes to the Customer immediately upon delivery.

(b) Property and title in Goods supplied to the Customer under these terms of trade does not pass to the Customer until all money (including money owing in respect of other transactions between Fusion Field Services and the Customer) due and payable to Fusion Field Services by the Customer have been fully paid.

(c) Where Goods are supplied by Fusion Field Services to the Customer without payment in full, the Customer: (i) is a bailee of the Goods until property in them passes to the Customer;

(ii) irrevocably appoints Fusion Field Services to be its attorney to do all acts and things necessary to ensure the retention of title to goods including the registration of any security interest in favour of Fusion Field Services with respect to the Goods under applicable law;

(iii) must be able upon demand by Fusion Field Services to separate and identify as belonging to Fusion Field Services Goods supplied by Fusion Field Services from other goods which are held by the Customer;

(iv) must not allow any person to have or acquire any security interest in the Goods;

(v) agrees that Fusion Field Services may repossess the Goods if payment is not made within 14 days (or such longer time as Fusion Field Services may, in its complete discretion, approve in writing) of the supply of the Goods; and

(vi) the Customer grants an irrevocable licence to Fusion Field Services or its agent to enter the Customer’s premises in order to recover possession of Goods pursuant to this clause. The Customer indemnifies Fusion Field Services for any damage to property or personal injury which occurs as a result of Fusion Field Services entering the Customer’s premises.

(d) Where Goods are supplied by Fusion Field Services to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by Fusion Field Services in respect of those Goods, and: (i) the Customer makes a new object from the Goods, whether finished or not;

(ii) the Customer mixes the Goods with other goods; or

(iii) the Goods become part of other goods (New Goods), the Customer agrees with Fusion Field Services that the ownership of the New Goods immediately passes to Fusion Field Services. The Customer will hold the New Goods on trust for Fusion Field Services until payment of all sums owing to Fusion Field Services whether under these terms of trade or any other contract have been made. Fusion Field Services may require the Customer to store the New Goods in a manner that clearly shows the ownership of Fusion Field Services.

(e) For the avoidance of doubt, under clause 10(d), the ownership of the New Goods passes to Fusion Field Services at the beginning of the operation or event by which the Goods are converted into, are mixed with or become part of other goods.

(f) Despite clause 10(c), the Customer may transfer, sell or dispose of Goods, including New Goods, to a third party in the ordinary course of business. This is provided that: (i) where the Customer is paid by a third party in respect of Goods including New Goods, the Customer holds the whole of the proceeds of sale, less any GST, on trust for Fusion Field Services in a separate account, until all amounts owned by the Customer to Fusion Field Services have been paid; or

(ii) where the Customer is not paid by a third party, the Customer agrees to assign all of its rights against the third party to Fusion Field Services upon Fusion Field Services giving the Customer notice in writing to that effect and for the purpose of giving effect to that assignment the Customer irrevocably appoints Fusion Field Services as its attorney.

(g) Where Goods are supplied by Fusion Field Services to the Customer without payment in full of all moneys payable in respect of the Goods and any Services provided by Fusion Field Services in respect of those Goods, the Customer acknowledges that Fusion Field Services has a right to register and perfect a personal property security interest.

(h) If: (i) a PPS Law applies or commences to apply to these terms of trade or any transaction contemplated by them, or Fusion Field Services determines (based on legal advice) that this is the case; and

(ii) in Fusion Field Services’ opinion, the PPS Law: (A) does or will adversely affect Fusion Field Services’ security position or obligations; or

(B) enables or would enable Fusion Field Services’ security position to be improved without adversely affecting the Customer, Fusion Field Services may give notice to the Customer requiring the Customer to do anything (including amending these terms of trade or execute any new Terms and Conditions) that in Fusion Field Services’ opinion is necessary, to the maximum possible extent, to overcome the circumstances contemplated in clause 10(h)(ii)(A) or improve the security position as contemplated in clause 10(h)(ii)(B). The Customer must comply with the requirements of that notice within the time specified in the notice. If having completed everything reasonably practicable as required under this clause, in Fusion Field Services’ opinion Fusion Field Services’ security position or obligations under or in connection with these terms of trade have been or will be materially adversely affected, Fusion Field Services may by further notice to the Customer cancel these terms of trade. If this occurs, the Customer must pay to Fusion Field Services any money owed to Fusion Field Services by the Customer immediately.

11 Intellectual Property Rights

(a) The Customer warrants that it owns all Intellectual Property Rights pertaining to its Order for Goods or Services or has a licence to authorise Fusion Field Services to reproduce or use all copyright works or other materials the subject of Intellectual Property Rights supplied by the Customer to Fusion Field Services for the purposes of the Order. Further, the Customer indemnifies and agrees to keep indemnified Fusion Field Services against all Losses incurred by Fusion Field Services in relation to or in any way directly or indirectly connected with any breach of any other Intellectual Property Rights in relation to any material supplied by the Customer.

(b) Unless specifically agreed in writing between Fusion Field Services and the Customer, all Intellectual Property Rights in any works created by Fusion Field Services on behalf of the Customer vest in and remain the property of Fusion Field Services.

(c) Subject to payment of all invoices due in respect of the Goods or Services, Fusion Field Services grants to the Customer a perpetual, non-exclusive licence to use the works created or produced by Fusion Field Services in connection with the provision of Goods or Services under these Terms for the purposes contemplated by the Order.

12 Agency and assignment

(a) The Customer agrees that Fusion Field Services may at any time appoint or engage an agent to perform an obligation of Fusion Field Services arising out of or pursuant to these Terms.

(b) Fusion Field Services has the right to assign and transfer to any person all or any of its title, estate, interest, benefit, rights, duties and obligations arising in, under or from these Terms provided that the assignee agrees to assume any duties and obligations of Fusion Field Services owed to the Customer under these Terms.

(c) The Customer is not to assign, or purport to assign, any of its obligations or rights under these Terms without the prior written consent of Fusion Field Services.

13 Default by Customer

(a) Each of the following occurrences constitutes an event of default: (i) the Customer breaches or is alleged to have breached these Terms for any reason (including, but not limited to, defaulting on any payment due under these Terms) and fails to remedy that breach within 14 days of being given notice by Fusion Field Services to do so;

(ii) the Customer, being a natural person, commits an act of bankruptcy;

(iii) the Customer, being a corporation, is subject to: (A) a petition being presented, an order being made or a meeting being called to consider a resolution for the Customer to be wound up, deregistered or dissolved;

(B) a receiver, receiver and manager or an administrator under Part 5.3A of the Corporations Act 2001 being appointed to all or any part of the Customer’s property and undertaking;

(C) the entering of a scheme of arrangement (other than for the purpose of restructuring); and

(D) any assignment for the benefit of creditors;

(iv) the Customer purports to assign its rights under these Terms without Fusion Field Services’ prior written consent; or

(v) the Customer ceases or threatens to cease conduct of its business in the normal manner.

(b) Where an event of default occurs, except where payment in full has been received by Fusion Field Services, Fusion Field Services may: (i) terminate these Terms;

(ii) terminate any or all Orders and credit arrangements (if any) with the Customer;

(iii) refuse to deliver Goods or provide further Services;

(iv) pursuant to clause 10(c), repossess and re-sell any Goods delivered to the Customer, the payment for which has not been received; or

(v) retain (where applicable) all money paid by the Customer on account of Goods or Services or otherwise.

(c) In addition to any action permitted to be taken by Fusion Field Services under clause 13(b), on the occurrence of an event of default all invoices will become immediately due and payable.

14 Exclusions and limitation of liability

(a) Fusion Field Services’ liability in relation to any breach of: (i) the warranties referred to in clause 5;

(ii) any other warranties referred to in the Quote; and

(iii) any guarantees arising under the Australian Consumer Law (to extent liability for non-compliance with such guarantees can be limited) are limited with respect to the supply of Goods, to the replacement or repair of the Goods or the costs of resupply or replacement of the Goods or with respect to Services to the supply of Services again or cost of re-supplying the Services again.

(b) To the fullest extent permissible at law: (i) any warranties or other terms that might otherwise be implied into these Terms are excluded; and

(ii) Fusion Field Services is not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, damages for loss of use, data or profits, arising out of or in any way connected with the provision of or failure to provide Goods or Services, or otherwise arising out of the provision of Goods or the Services, whether based on Terms, negligence, strict liability or otherwise.

(c) All information, specifications and samples provided by Fusion Field Services in relation to the Goods or Services are approximations only and, subject to any guarantees under the Australian Consumer Law, small deviations or slight variations from them which do not substantially affect the Customer’s use of the Goods or Services will not entitle the Customer to reject the Goods upon delivery, or to make any claim in respect of them.

(d) Any advice, recommendation, information, assistance or service given by Fusion Field Services in relation to Goods or Services or both, is given in good faith and is believed to be accurate, appropriate and reliable at the time it is given. It is provided without any warranty or accuracy, appropriateness or reliability. Fusion Field Services does not accept any liability or responsibility for any Loss suffered as a result of the Customer’s reliance on such advice, recommendation, information, assistance or service.

15 Indemnity

(a) The Customer indemnifies and keeps indemnified Fusion Field Services, its servants and agents in respect of any claim or demand made or action commenced by any person (including, but not limited to, the Customer) against Fusion Field Services or, for which Fusion Field Services is liable, in connection with any Loss arising from or incidental to the provision of Goods or Services, any Order or the subject matter of these Terms.

(b) This includes, but is not limited to, any legal costs incurred by Fusion Field Services in relation to meeting any claim or demand or any legal costs for which Fusion Field Services is liable in connection with any such claim or demand, on an indemnity basis.

(c) This provision remains in force after the termination of these Terms.

16 Force majeure

(a) If circumstances beyond Fusion Field Services’ control prevent or hinder its provision of the Goods or Services, Fusion Field Services is free from any obligation to provide the Goods or Services while those circumstances continue. Fusion Field Services may elect to terminate this agreement or keep the agreement on foot until such circumstances have ceased.

(b) Circumstances beyond Fusion Field Services’ control include, but are not limited to, unavailability of materials or components, strikes, lockouts, riots, natural disasters, fire, war, pandemics, acts of God, Government decrees, proclamations or orders, transport difficulties and failures or malfunctions of computers or other information technology systems.

17 Miscellaneous

(a) These Terms are governed by the laws of Western Australia and each party irrevocably submits to the non-exclusive jurisdiction of the courts of that state.

(b) These Terms and any Quotes and written variations agreed to in writing by Fusion Field Services represent the whole agreement between the parties relating to the subject matter of these terms and supersede all oral and written negotiations and communications by and on behalf of either of the parties.

(c) In entering into these Terms, the Customer has not relied on any warranty, representation or statement, whether oral or written, made by Fusion Field Services or any of its employees or agents relating to or in connection with the subject matter of these Terms.

(d) If any provision of these Terms at any time is or becomes void, voidable or unenforceable, the remaining provisions will continue to have full force and effect.

(e) A party’s failure or delay to exercise a power or right does not operate as a waiver of that power or right.

(f) A notice or other communication required or permitted to be given by one party to another must be in writing to the email address shown on a Quote.