Terms and Conditions

1. DEFINITIONS

In this Agreement, unless context requires otherwise:

Additional Services means works carried out by WAHR outside of the Services that in WAHR’s reasonable opinion are required, or are requested by the Customer.

Authorised Party means the person authorised by the Customer to enter into the Contract and named under item 3 of the Schedule;

Contract means any agreement between WAHR and the Customer for WAHR to provide Services;

Customer means the person or entity detailed in item 1 of the Schedule;

Employee means a person employed by WAHR;

Goods means all or any part of the goods supplied to the Customer or used (including automotive parts, tyres, oils, and lubricants) as part of the Services provided;

Labour Fee means the fee listed under item 12 of the Schedule;

Manufactured Goods means any product the Customer requests WAHR to manufacturer or produce, as set out in items 16-19 of the Schedule;

Manufactured Goods Fee means the fee listed under item 19 of the Schedule;

Services means services of any kind relating to the repair, maintenance, refitting, improvement, inspection, testing, storage, transport, handling or delivery of the Vehicle, Plant and Equipmentand/or the manufacturing, design, and supply of any Manufactured Goods and includes (without limiting the generality of the foregoing) the supply, installation and/or fitting of Goods;

Plant and Equipment means any plant, equipment or machinery that that the Customer requests Services be performed on;

PPSA means the Personal Property Securities Act 2009 (Cth), as amended from time to time.

WAHR means New Trend Australia Pty Ltd (ABN 72 644 550 747) trading as WA Haulage Repairs;

Vehicle meansany heavy haulage truck or machine bought into WAHR for the purposes of the Services;

2.INTERPRETATION

In this Contract, unless the context otherwise requires:

(a) words importing the singular include the plural and vice versa;

(b) words importing a gender include any gender;

(d) references to the clauses, sub-clauses, paragraphs, schedules or annexures are references to the clauses, sub-clauses, paragraphs, schedule and annexures respectively to or of this Contract;

(e) a reference to a person includes a corporation and any entity capable of being the subject of legal proceedings;

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

(g) if a word or phrase is defined in this Contract, its other grammatical forms have a corresponding meaning;

(h) a reference to a party to this Contract includes the party’s successors, permitted substitutes and permitted assigns and, where applicable, the party’s legal personal representatives;

(i) a right or obligation of any 2 or more persons confers that right or imposes that obligation, as the case may be, on each of them severally and on any 2 or more of them jointly;

(j) references to currency means Australian currency;

(k) references to time are to local time in Perth, Western Australia; and

(l) “including” and similar expressions are not words of limitation.

3. NATURE OF AGREEMENT

(a) Any Contract incorporates these terms and conditions. In any event, any Services provided by WAHR are provided pursuant to these terms and conditions (and any schedule or addendum to these terms and conditions) except to the extent they are explicitly varied in writing by agreement between the Customer and WAHR.

(b) The Customer agrees the Contract is formed, and it is bound by these terms and conditions,as soon as WAHR expressly agrees to provide the Services or by commencement of work, whichever is the earlier.

(d) Both parties acknowledge that the Contract may not be varied except as agreed in writing.

(e) These terms and conditions may be varied from time to time by WAHR in which case the Customer will be notified. Delivery of such notification will constitute acceptance of the variation unless as otherwise notified by the Customer within 3 days of the notification under this clause 3(e).

4. AUTHORISATION

(a) The Authorised Party warrants that it is authorised to enter the Contract on behalf of the Customer.

5. DELIVERY OF SERVICES

(a) Where the time for performance and/or delivery of the Services is agreed, it is only an estimate and not a guarantee, and the Customer agrees that WAHR will not be liable for a delay in the delivery of Services in any case.

(b) WAHR may, by written notice to the Customer, at its sole discretion and at any time, refuse to provide the Services.

6. MANUFACTURED GOODS

(a) This clause 6 applies to Services relating to the design, manufacture and supply of Manufactured Goods..

(b) Notwithstanding clause 7, WAHR may require the entirety or part of the Manufactured Goods Fee (or an estimate of such Fee) to be paid in advance before commencement of works on the Manufactured Goods.

(c) The Customer acknowledges that once works commence on the Manufactured Goods, the Manufactured Goods Fee is non-refundable and is only recoverable to the extent permitted by Australian Consumer Law.

7. PRICES AND PAYMENT

(a) If the Customer requests a quote, and in WAHR’s opinion it is reasonable to do so, WAHR may provide a quote of the cost of the Services prior to the Services being provided or any works commencing.

(b) Quotes remain valid for 30 days after the date WAHR provides the estimate to the Customer.

(c) Unless expressly stated, the price of the Services provided in a quote does not include GST which, in addition to the price, must be paid to WAHR at the time invoice is paid.

(d) A quote given by WAHR does not constitute a contractual agreement and no agreement shall arise until the Contract becomes binding under clause 3(b).

(e) The Customer agrees to pay WAHR all costs incurred in carrying out the Services including the cost of any required spare parts, materials and labour.

(f) WAHR’s Labour Fee is applied per Employee, per hour. This cost is cumulative if more than one Employee provides the Services and is exclusive of the cost for any required Goods.

(g) If providing any Additional Services means that an estimate provided to the Customer is exceeded, the Additional Services will be provided at the Labour Fee and in accordance with clause 7(f).

(h) If, at any time, the Services are terminated pursuant to clause 5(b), or otherwise by the Customer or WAHR, the Customer must pay for the Services performed up to the date of the termination of Services. WAHR may issue an invoice for the costs and expenses of the Services completed up to the date of the termination of the Services.

(i) Unless otherwise agreed in writing by the parties, and subject to clause 7(h), payment of all invoices must be paid by the Customer in full upon completion of works and prior tothe return of the Vehicle to the Customer.

(j) Payment under this clause 7 may be made by cash, credit card, EFTPOS or bank cheque (if previously agreed). Payment made by Visa, MasterCard or American Express credit cards will incur a surcharge.

(k) If, for any reason, any amount is unpaid by the due date under clause 7(i), interest is payable by the Customer at a rate of 15% per annum on any unpaid amount, calculated daily from the due date to the date the amount owing is paid in full.

8. LIABILITY AND INDEMNITY

(a) To the extent permitted by law, WAHR’s maximum liability to the Customer or any other person for any loss or liabilityarising from or in relation to the provision of the Services is limited to the invoiced amount for the Services or amount owing by the Customer for the Services.

(b) The Customer agrees to indemnify WAHR against all loss and liability WAHR suffers or incurs (either directly or indirectly) in connection with the Customer’s breach of the Contract or any other act or omission by the Customer, or any amounts incurred or expended by WAHR in exercising or enforcing its rights under the Contract.

9. JURISDICTION

(a) This Contract is governed by the laws of Western Australia and the parties irrevocably submit to the jurisdiction of the courts exercising jurisdiction in Western Australia.

10. GENERAL

(a) The rights and remedies provided in under the Contract are cumulative with and not exclusive of the rights and remedies provided by law independently of the Contract.

(b) The Customer must not assign or transfer any rights or obligations under these terms and conditions.

(c) If a provision of the Contract is void, voidable or unenforceable, it will be severed and the remainder of the Contract will not be affected.

(d) WAHR acknowledges that its Goods and Services come with guarantees that cannot be excluded under the Australian Consumer Law. To the extent of the Australian Consumer Law, the Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage.

11. PERSONAL PROPERTY SECURITIES ACT

(a) Capitalised terms in this clause 11, that are not defined elsewhere in the Contract, have the same meaning as set out in the PPSA unless the context otherwise requires.

(b) This Contract constitutes a security agreement pursuant to the PPSA in relation to the Services supplied by WAHR to the Customer and Services that will be supplied in the future by WAHR to the Customer.

(c) The Customer acknowledges and agrees that one or more Security Interests (as that term is defined in the PPSA) may be registered by WAHR in relation to the Services and/or and the Proceeds arising in respect of any dealing in the WAHR Product in accordance with the PPSA (and in any other manner WAHR considers appropriate).

(d) The Customer agrees to do all such things and sign all such documentation and/or provide any further information (such information to be complete accurate and up-to-date in all respects) as are necessary and reasonably required to enable WAHR to:

(i) acquire a perfected Security Interest in the Vehicle (or otherwise to secure payment for the Securities, if any);

(ii) register a Financing Statement or Financing Change Statement;

(iii) ensure that WAHR’s security position, and rights and obligations are not adversely affected by the PPSA.

(e) The Customer waives its rights to receive a copy of any Verification Statement after the registration of a Financing Statement or Financing Change Statement in respect of the Security Interest created by the Contract.

(f) The Customer agrees to not:

(i) register a Financing Change Statement in respect of a Security Interest contemplated or constituted by the Contract; or

(ii) register, or permit to be registered, a Financing Statement or a Financing Change Statement in relation to the Vehicle in favour of a third party,

without WAHR’s prior written consent.

(g) For the purposes of section 20(2) of the PPSA, the collateral is the Vehicle.

(h) If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interest(s) created under the Contract, the parties agree that the following provisions of the PPSA will not apply or are waived, as the context requires:

(i) section 95 (notice of removal of accession to the extent that it requires WAHR to give a notice to the Customer);

(ii) section 96 (retention of accession);

(iii) section 121(4) (notice to grantor);

(iv) section 125 (obligations to dispose of or retain collateral);

(v) sections 129(2), 129(3) and 130 (notice of disposal to the extent it requires WAHR to give a notice to the Customer);

(vi) section 132(3)(d) (contents of statement of account after disposal);

(vii) section 132(4) (statement of account if no disposal);

(viii) section 135 (notice of retention);

(ix) section 142 (redemption of collateral); and

(x) section 143 (re-instatement of security agreement).

(i) The Customer agrees that, until all monies owing to WAHR are paid in full,

(i) it shall not sell or grant any other Security Interest in the WAHR Product or its Proceeds, without the prior written consent of WAHR.

(ii) It will not, without the prior written consent of WAHR change its name, its details or initiate any change to any documentation registered under the PPSA pursuant to the Contract.

(j) Unless otherwise agreed and to the extent permitted by the PPSA, the parties agree not to disclose information of the kind referred to in section 275(1) of the PPSA to an Interested Person, or any other person requested by an Interested Person. The Customer waives any right it may have, or but for this clause may have had, under section 275(7)(c) of the PPSA to authorise the disclosure of the above information.

(k) If any provisions of the Contract are inconsistent with the PPSA, the PPSA shall prevail to the extent of that inconsistency.