Terms and Conditions for the Supply of Goods and/or Services

THIS AGREEMENT is executed at the time and date that the Client accepts a Proposal from the Supplier referring to these Terms of Business, or otherwise purchases advertised Goods and / or Services where the Supplier refers to these Terms of Business.

BETWEEN:

BYRON BAY RANGA TRUST ABN 50 531 906 864

PO Box 1865

BYRON BAY NSW 2481 (“the Supplier”)

and THE CLIENT purchasing the Goods and/or Services.

(“the Client”)

IT IS AGREED AS FOLLOWS:

1 DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, unless the context specifically requires otherwise:

“Agreement” means the sum of these Terms of Business and a Proposal from or advertisement of goods and / or services for sale by the Supplier referring to these Terms of Business. Where there is any conflict between these Terms of Business and a Proposal, these Terms of Business shall prevail, with the exception of any Special Clauses in a Proposal or advertisement that explicitly modify these Terms of Business.

“Business Day” means any day other than a Saturday, Sunday or public holiday at the place where the activity in question occurred or is to occur.

“Background Intellectual Property” means Intellectual Property owned or controlled by a Party, including Intellectual Property, developed prior to or independently of this Agreement, which that Party determines, in its sole discretion, to make available for the carrying out of the Services.

“Confidential Information” means all un-patented inventions, designs, ideas, know-how, concepts, trade secrets, processes, techniques, software, products and any and all other unregistered or un-patented intellectual property, financial and business information and all other commercially valuable and/or (in the case of residential Clients) personally sensitive information of the Disclosing Party which the Disclosing Party regards as confidential to it or which is evident by its nature to be confidential and all copies, notes and records and all related information generated by the Receiving Party based on or arising out of any such disclosure but not including information, which is, or becomes:

a) available to the public at or after the date of its disclosure to the Receiving Party otherwise than through the default of the Receiving Party;

b) properly in the possession of the Receiving Party otherwise than by prior confidential disclosure from the Disclosing Party; or

c) is demonstrated by the Receiving Party to be independently developed by an employee or agent of the Receiving Party having no knowledge of such information, which is the subject of the disclosure.

“Disclosing Party” means the Party that is disclosing Confidential Information and may include a Subcontractor who makes applicable disclosures.

“Goods” means any plants, tangible products or materials used by the Supplier or its Subcontractors when providing the Services or sold to the Client by the Supplier for use by the Client or other parties. For the avoidance of doubt, goods sold or otherwise provided by Subcontractors or other parties that are not supplied by the Supplier are excluded from this Agreement.

“Improvement” means any improvement, advancement, modification, adaptation or the like arising from a Party’s use of Background Intellectual Property.

“Intellectual Property” means all rights resulting from intellectual activity, whether capable of protection by statute, common law or in equity and including copyright, discoveries, inventions, patent rights, registered and unregistered trademarks, design rights, landscaping plans and plant varieties and all rights and interests of a like nature including but not limited to methods and techniques, together with any documentation relating to such rights and interests.

“Losses” means any actual, contingent or opportunity financial losses or losses or degradations of property or amenity suffered by a party to this Agreement, including (without limitation) plant deaths, diseases and/ or failures to thrive or the loss of and/or damage to garden and landscaping fixtures and equipment.

“Machinery” means any tangible plant and equipment, including motor vehicles, used by the Supplier and / or a Subcontractor to deliver the Goods and / or Services.

“Notice” means any notice, demand, consent or other communication whatsoever given or made under this Agreement and must be in writing by e-mail.

“Parties” means the parties to this Agreement and their respective successors and permitted assigns, and Party means any one of them. For the avoidance of doubt, Subcontractors are not contractual, statutory, common law or equitable agents, partners or legal representatives of the Supplier, and their actions or omissions will in no way bind the Supplier for the purposes of amending, enforcing or complying with this Agreement.

“Proposal” means a written proposal of Services to be delivered by the Supplier (or by a Subcontractor contracted by the Supplier) to the Client, which may be delivered in any form and may include prices described variously as fixed fees, quotes, estimates or any other terms that describe how the price charged by the Supplier to the Client will be calculated. Variations to Proposals previously provided will also be Proposals for the purpose of this Agreement.

“Receiving Party” means the Party that is receiving Confidential Information and may include a Subcontractor that receives applicable disclosures.

“Services” means (a) the services described in a Proposal and/or (b) any other services provided by the Supplier where the Client receives the benefit of those services, whether they were formally or informally agreed to between the Client and the Supplier.

“Start Date” means the date on which the Client first receives the benefit of the Services.“Subcontractor” means an independent contractor engaged by the Supplier that provides discrete Services directly to a Client on behalf of the Supplier, however legally constituted. For the avoidance of doubt, an independent contractor that provides services to the Supplier that are incorporated directly into broader Services that are then provided by the Supplier itself to a Client are not Subcontractors for the purposes of this Agreement.

“Term” means the term (if any) specified in a Proposal in relation to the Services and ending no later than the final provision of the Services to the Client by the Supplier or a Subcontractor.

1.2 The following rules apply unless the context requires otherwise:

a) the singular includes the plural and conversely;

b) a gender includes all genders;

c) if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

d) a reference to a person, corporation, trust, unincorporated body or other entity includes any of them;

e) a reference to a clause or schedule is a reference to a clause of, or a schedule to, this

Agreement;

f) a reference to A$, $A, dollar or $ is to Australian currency;

g) a reference to time is to Australian Eastern Standard or Summer Time, as may apply at the relevant date in the state of New South Wales;

h) a reference to an agreement or contract is to

the Agreement;

i) a reference to legislation or to a provision of the legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

j) a reference to “GST”, “input tax credit”, “supply”, “tax invoice”, and “taxable supply” have the meanings given to those expressions in the A New Tax System (Goods and Services Tax) Act 1999; and

k) headings are for convenience only and do not affect interpretation.

2 TERM

This Agreement will begin on the Start Date and will continue for the Term, with those terms and conditions that are referred to in clause 9.3 also surviving termination.

3 GOODS, SERVICES AND ACCESS

3.1 The Supplier and/or a Subcontractor managed by the Supplier will perform the Services on and/or by the date(s) agreed with the Client in relation to the Services.

3.2 The Services must be performed in accordance with the terms of this Agreement, subject to any Special Conditions that may be included in a Proposal submitted by or advertisement made by the Supplier that has been accepted by or reasonably relied upon by the Client.

3.3 The Supplier reserves the right to subcontract the Services to a Subcontractor and to change a Subcontractor, provided at all times that the Services will be provided to the Client in accordance with this Agreement.

3.4 The Supplier may also provide or sell Goods to the Client in conjunction with or in addition to the Services.

3.5 The Client will provide adequate, safe and timely access to premises, water and any other Client materials and resources specified in a Proposal that are necessary for the Supplier or its Subcontractor to provide the Services, and also to places where Goods and / or Machinery that are required for the delivery of Services may be safely, legally and conveniently located or stored.

4 PAYMENT

4.1 The Client shall make payments to the Supplier for the Goods and Services in accordance with the price calculated in accordance with (a) a Proposal submitted by the Supplier referring to these Terms of Business and / or (b) the current price list for Goods and Services advised to the Client by the Supplier.

4.2 Payments must be made in accordance with credit terms stated in the Proposal or advertisement or, where not stated, the earlier of 7 days after the delivery of the Goods or Services or before any further Goods or Services are provided, without deduction or set off of any kind.

5 CONFIDENTIALITY

5.1 When receiving Confidential Information, the Receiving Party must:

a) keep all Confidential Information of the Disclosing Party confidential unless strictly required otherwise by law;

b) limit access to those of its personnel (including its contractors) reasonably requiring the Confidential Information on a strict need-to-know basis;

c) not use any Confidential Information in any way other than for the Services or as otherwise contemplated by this Agreement without the prior written permission of the Disclosing Party;

d) ensure that all personnel to whom Confidential Information is disclosed are legally bound under the terms and conditions of their employment or contracting agreements or otherwise to keep the Confidential Information confidential and not to use the Confidential Information except in relation to the subject matter of this Agreement; and

e) at the termination or expiration of this Agreement and upon the written request of the Disclosing Party, the Receiving Party must return to the Disclosing Party any documents originating from the Disclosing Party which embody Confidential Information and must not keep any copies in any form. The Disclosing Party may, at its sole discretion, vary this requirement in favour of the secure destruction of the documents by the Receiving Party.

6 INTELLECTUAL PROPERTY

6.1 Each Party:

a) agrees that it will not have any claim, ownership or interest in or duplicate or reverse engineer the other Party’s Background Intellectual Property or Improvements in such Background Intellectual Property;

b) grants the other Party a non-exclusive, irrevocable and royalty-free license for the use of any Background Intellectual Property made available by the granting Party for the purpose of carrying out the Services; and

c) Subject to clause 6.1(a), the rights to all Intellectual Property created, discovered or coming into existence as a direct and sole result of or arising directly and solely out of the Services shall be the property of and vested in the Client, and the Client also grants a non-exclusive, irrevocable and royalty-free license to the Supplier to make use of the Intellectual Property arising out of the Services for its current and future research and development and commercial purposes, subject to Confidentiality.

6.3 Where Services managed by the Supplier are provided to a Client by a Subcontractor, the Supplier will contract with that Subcontractor to ensure that these Intellectual Property rights and obligations will also apply to all dealings between that Subcontractor and the Client.

7. CONSENT TO COLLECTION AND PUBLICATION OF IMAGES AND OTHER DESCRIPTIVE CONTENT

7.1 The Supplier acknowledges that the Supplier relies on advertising and publicity to market its services to other clients and consents to the Supplier’s collection and publication of images and other descriptive content for that purpose.

7.2 For the purposes of this clause, images and descriptive content includes (but is not limited to) photographs, videos, films, plans, diagrams, designs, specifications, instructions, manuscripts or articles relating to the Services.

7.3 The Client may only withdraw this consent at the time that it accepts the Proposal (or after accepting the Proposal) if it has a reasonable concern for its safety or security (or that of others who use the premises that are the subject of the Services), those concerns cannot be reasonably mitigated by any means other than the withdrawal of that consent and the non-publication of or taking down the relevant images and other descriptive content, and those concerns have been communicated to the Supplier, who has been given adequate opportunity to respond. For the avoidance of doubt, concerns regarding privacy or future property asset or rental values are not grounds for withdrawal of consent.

7.4 The Supplier may use employees or contractors (”content agents”) to collect, edit, compile or publish images and other descriptive content, at its own discretion.

7.5 The Supplier (or its content agents) will liaise with the Client regarding suitable dates, times and techniques to access the premises and collect images and other descriptive content, and the Client will take reasonable steps to co-operate with that process.

7.6 The Supplier grants the Client a royalty free, irrevocable license to use the images and other descriptive content for its own purposes, where permitted by its terms of business with content agents.

7.7 The Supplier will take all reasonable steps to ensure that images and other descriptive content do not materially include images of or references to persons or things that are not the subject of the Services.

7.8 The Supplier may not identify the Client or the full address of the premises without the Client’s express prior written consent, however it may describe the premises by reference to the town or region where they are located.

7.9 Where the Client withdraws consents in accordance with clause 7.3, it will provide the Supplier with a reasonable opportunity to comply where that might require the taking down of previously published images and other descriptive content, provided that the Supplier also takes all reasonable steps to ensure that affected images and other descriptive content are taken down at the earliest opportunity.

7.10 The Client also acknowledges that there may be instances where a third party publisher may not agree to a take down request and the Supplier may not be able to secure the publisher’s agreement, despite its best efforts.

8. RISK, LIABILITY AND INSURANCE

8.1 The Supplier warrants that it (or a Subcontractor that provides Services managed by the Supplier to the Client) will use Goods and/or perform the Services in accordance with those standards that may be mandated by regulators and/or recognised professional bodies with jurisdiction in the State of New South Wales, in so far as those standards are expressly relevant to the Services and specified in a Proposal. Where the Services include landscaping design and/or construction services the Supplier will deliver those services in accordance with the standards prescribed by the Landscaping Association in New South Wales, in so far as they directly apply to the Services.

8.2 Except for the warranty in clause 8.1, the Supplier (or a Subcontractor that provides Services managed by the Supplier to the Client) does not make any warranties regarding the Goods and Services. All other warranties, including without limitation those of merchantability, fitness for a particular purpose, or that the use of the Goods or Services or any materials created pursuant to this Agreement will not infringe any intellectual property or other rights of a third party are excluded.

8.3 The Client accepts that the Goods and Services will be recommended, selected, planned and/or provided by the Supplier based primarily on instructions and/or historical or contextual information provided by the Client. The Supplier disclaims responsibility for Losses incurred because of factual errors or omissions in those instructions or that information, unilateral changes of mind by the Client or because of usage, weather, quality control and other factors beyond the reasonable control of the Supplier.

For the avoidance of doubt, the Supplier is not liable for quality control issues with Goods and / or Machinery that it purchases or procures on behalf of the Client from third parties, unless those quality control issues are manifestly obvious at the time that the Goods and / or Machinery were ordered. If disclaimed quality control issues are subsequently detected by the Supplier or the Client after the supply of the Goods or usage of Machinery the Supplier will use its best endeavours to assist the Client to obtain remedies for the original defects directly from independent suppliers of the Goods and / or operators of Machinery, however it will not be itself liable for any losses, damages or costs that relate to those disclaimed quality control issues, including those relating to delays in the delivery of Services.

8.4 The Supplier (and any Subcontractor that provides Services managed by the Supplier to the Client) further disclaims responsibility for Losses incurred because of any failures to successfully implement any advice or recommendations provided to the Client or because of the acts or omissions of the Client or other parties that provide goods or services to the Client, including the use or misuse of Goods sold or otherwise provided by the Supplier to the Client.

8.5 The Services should not be relied on for any purpose other than that advertised by the Supplier or specified in a Proposal or by any persons other than the named Client, which acknowledges that it purchases Goods and receives the benefit of the Services at its own risk.

8.6 To the extent permitted by law, the Supplier (and any Subcontractor that provides Services managed by the Supplier to the Client) has no liability for Services under this Agreement other than as set out in this clause 8. Where liability cannot be excluded, it is limited, at the Supplier’s option, to re-performing the Services or paying the Client the cost of having the Services re-performed.

8.7 To the extent permitted by law, the Supplier (and any Subcontractor that uses Goods sold or provided by the Supplier to the Client) has no liability for Goods under this Agreement other than as set out in this clause 8. Where liability cannot be excluded, it is limited, at the Supplier’s option, to re-supplying the Goods or paying the Client the cost of having the Goods re-supplied.

8.8 The cost to the Supplier under this clause 8 shall not exceed the total payments already received up to that date by the Supplier under this Agreement.

8.9 Neither Party will be liable for indirect or consequential Losses incurred by the other Party for whatever reason, and the Supplier disclaims all responsibility for whatever reason in relation to any dealings between the Supplier and a Subcontractor that do not entirely relate to Goods supplied by or Services managed by the Supplier and/or where the Supplier is not a direct party to those dealings.

8.10 The Supplier warrants that it will maintain Public Liability, Motor Vehicle and Workers’ Compensation Insurance policies that are appropriate for the nature and value of risks and liabilities relating to the supply of Goods and performance of Services in accordance with this Agreement.

8.11 The Supplier warrants that it will maintain all Machinery used by it to provide the Services in safe working condition, except where that Machinery is operated or maintained by a Subcontractor and the Supplier is not reasonably able or expected to maintain that Machinery itself, in which case the Supplier disclaims all responsibility for any losses, damages or other liabilities relating to the use, misuse or storage of that Machinery.

9 TERMINATION, POSTPONEMENT & CANCELLATION

9.1 This Agreement may be terminated at any time with the consent of both Parties or by either Party where a Force Majeure event (including but not limited to acts of war, terrorism, civil unrest, outbreaks of disease, natural disasters, industrial action, loss of key staff, suppliers, Goods and Machinery and actions of governments or regulators adversely affecting that Party’s operations) prevents that Party from fulfilling its obligations.

9.2 Either the Client or the Supplier may terminate this Agreement if the other Party is (a) in default of the terms and conditions of this Agreement and fails to remedy the default within 7 days after receiving the Notice requiring the remedy of the default; or (b) becomes bankrupt, insolvent or subject to receivership, administration or other debt reconstruction proceedings.

9.3 Termination of this Agreement for whatever cause shall be without prejudice to any rights or obligations that have accrued or were owed prior to such termination, including but not limited to payments of money, Confidentiality and Intellectual Property.

9.4 The Supplier will not be required to refund any part of the payments already made by the Client in connection with the Goods and/or Services if the Client terminates the Agreement before the supply of the Goods or completion of the Services or, through its own acts or omissions, practically prevents the Supplier from providing the Goods and/or Services.

9.5 The Client and/or the Supplier may each postpone or cancel attendances required for the Supplier to provide the Services in accordance with notice periods and communication channels included in a Proposal. In such cases, the Client and the Supplier will work in good faith to reschedule those attendances to ensure that the Services can still be provided as agreed, and any payments already made or payable by the Client relating to those interactions will be applied by the Supplier to the rescheduled attendances. Where attendances are postponed or cancelled by the Client and cannot be practically rescheduled, the Supplier is entitled to charge the Client for that portion of the Services and retain any payments already made without having to provide the part of the Services related to the affected attendances. The Supplier may also charge the Client for any out-of-pocket travel and other costs incurred as a direct result of the Client’s late postponement or cancellation of any attendances, to the extent that the Supplier is unable to avoid or recoup those costs.

10 GST

10.1 For the purposes of this clause 10, the value of taxable supply made by either Party under this Agreement is as follows:

a) unless expressly stated to the contrary, the consideration to be provided for any taxable supply made by one party to the other under this Agreement has been calculated without regard to, and is exclusive of GST;

b) the consideration referred to in paragraph (a) shall be increased by the amount of any GST;

c) the Party receiving any payment for a taxable supply under this Agreement shall provide to the Party making a payment for a taxable supply a tax invoice in respect of that payment; and

d) the Party receiving any payment under this Agreement for a taxable supply shall do all things necessary that are within its reasonable control (including, without limitation, registering with any required Government authority) to enable the party making a payment for a taxable supply to claim any credits or other benefits under the relevant law relating to GST.

11.1 A Party claiming that a dispute has arisen under this Agreement (“Dispute”), including any Dispute relating to a Subcontractor that provides Goods and Services to a Client managed by the Supplier, must notify the other Party by giving written details of the Dispute. The Parties agree to negotiate in good faith on a commercially realistic basis to resolve the Dispute at the earliest opportunity.

11 DISPUTE RESOLUTION

11.2 The Parties may agree to refer the Dispute to conciliation, mediation, arbitration or other informal dispute resolution proceedings before either Party commences legal proceedings.

11.3 The Client agrees not to withhold, delay, set off or deduct any payments for Goods and Services (whether or not they are the subject of a Dispute) because of a Dispute.

11.4 The Supplier agrees not to withhold or delay the supply and/or performance of any Goods and/or Services because of a Dispute unless specifically requested to do so by the Client.

12 GENERAL

12.1 Entire Agreement: This Agreement constitutes the entire agreement of the Parties with respect to its subject matter and supersedes all prior oral or written representations and agreements.

12.2 Amendment: This Agreement may only be amended in writing by the Parties or by Special Conditions in a Proposal or advertisement by the Supplier that are specifically stated will override these Terms of Business.

12.3 Assignment: A Client may not assign its rights or obligations arising under this Agreement without the prior written consent of the Supplier. The Supplier may assign its rights or obligations where reasonable to a Subcontractor, subject at all times to these Terms of Business, or to another legal entity that is a controlled entity of the Supplier or subject to common control.

12.4 Waiver: A waiver by either Party of a breach of any provision of this Agreement does not constitute a waiver of any succeeding breach of the same or any other provision.

12.5 Severance: If any provision or part-provision of this Agreement is invalid or unenforceable, such provision shall be deemed deleted but only to the extent necessary, and the remaining provisions of this Agreement shall remain in full force and effect.

12.6 Relationship: The Parties are independent contracting parties, and nothing in this Agreement shall make any Party the agent, partner or legal representative of the other Party for any purpose whatsoever, nor does it grant either Party any authority to assume or create any obligation on behalf of or in the name of the other Party on any account whatsoever.

12.7 Governing Law: This Agreement is governed by the laws of the State of New South Wales, Australia. The Parties submit to the jurisdiction of the courts of the State of New South Wales and any courts which may hear appeals from those courts.

12.8 Notices: All Notices must be communicated using the e-mail addresses notified by the Client and the Supplier to each other when making this Agreement or as otherwise advised after that time. Notices will only be communicated electronically. Notices will be determined to have been received at 6 pm if sent electronically prior to that time on that Business Day.