Terms and Conditions

1. Application

1.1 These standard terms and conditions apply to Airig Pty Ltd (ACN 168 623 783 trading as “Air Communications”.

1.2 The Customer acknowledges that they have read and understood these Terms and conditions.

1.3 These Terms and Conditions supersede any previous agreements or understandings of any kind between Air Communications and the Customer with effect from the date of this document.

1.4 These Terms and Conditions apply to all agreements and to all supplies of Goods and Services by Air Communications, at the direction of, the Customer.

1.5 The Customer acknowledges that acceptance of Air Communication’s quote is deemed acceptance of these Terms and Conditions.

1.6 Unless otherwise agreed by Air Communications in writing, the Customer agrees that all orders placed with Air Communications will be accepted subject to the contractual terms and conditions below:

2. Definitions and Interpretation

In this Agreement unless the context otherwise requires:

2.1 Agreement means any agreement, arrangement or contract between Air Communications and the Customer for the supply of Goods and Services;

2.2 Air Communications means Airig Pty Ltd (ACN 168 623 783) of 11 Mulgul Road, Malaga, Western Australia.

2.3 Customer means the customer in the Quotation or the party that requests, orders and/or receives the benefit of the Goods and Services.

2.4 Default Event means any of the following:

I. When an amount payable by the Customer to Air Communications is overdue, or the Customer fails to meet any obligation to Air Communications or in Air Communication’s reasonable opinion the Customer is likely to be unable to meet its payment or other obligations to Air Communications;

II. the Customer is unable to pay its debts when they fall due;

III. the Customer ceases or suspends conduct of its business or a material part of it, or threatens to;

IV. a resolution is passed or proposed, or a summons is presented to wind up the Customer;

V. a receiver and/or manager or other form of insolvency administrator is appointed over all or part of the Customer’s assets;

VI. the Customer makes or proposes to make any arrangement with its creditors;

VII. the Customer commits an act of bankruptcy;

VIII. the Customer breaches any of the Agreement and fails to rectify the breach within 14 days of written notice by Air Communications.

2.5 Goods mean the goods or equipment sold or agreed to be supplied by Air Communications to the Customer.

2.6 Services mean the services supplied by Air Communications to the Customer.

2.7 Quotation means any written quotation of price and description of Goods and Services given by Air Communications to the Customer.

2.8 Every covenant or agreement expressed or implied in these Terms and Conditions in which more persons than one covenant or agree shall bind such persons and every two or more of them jointly and severally;

2.9 Reference to any party shall mean a reference to that party, its successors, assigns, personal representatives, executor/s, transferees, agents, servants and employees as the case may be.

2.10 Time is of the essence in all respects as regards these Terms and Conditions.

2.11 For all purposes and for any purpose relating to these Terms and Conditions, a certificate in writing signed by a director of Air Communications certifying any facts, matters, acts or things relating to an Agreement or Goods or Services shall be prima facie evidence of the truth of the facts, matters, acts or things so certified.

TERMS OF CONTRACT

3. Quotation

3.1 Where Air Communications provides a Quotation to the Customer, the Quotation is an offer by Air Communications to supply Goods and/or Services to the Customer on these Terms and Conditions and any further Terms and Conditions in the Quotation.

3.2 Unless otherwise specified in the Quotation, the Customer may accept the Quotation by placing an Order in accordance with the Quotation within 30 days from the date of the Quotation. If an Order is not placed within 30 days of the date of the Quotation, Air Communications may vary the price or any other Term and Condition of the Quotation.

3.3 Air Communications may withdraw a Quotation at any time.

3.4 Where the Quotation provides technical information, including, but not limited to, details regarding weight, dimensions, physical properties, operating cost or performance, this information is an estimate only unless specifically expressed to be final and binding.

3.5 All prices in this quotation are exclusive of applicable duties (including GST) and are in Australian dollars. Air Communications reserves the right to adjust the pricing in this quotation should there be any changes to the supplied information or scope of work. Air Communications reserves the right to review and modify all prices and Terms and Conditions without notice.

3.6 Cancellation of an order with Air Communications after the purchase of materials and manufacture of the Product has been undertaken will result in full payment being required to be made to Air Communications unless otherwise agreed in writing.

4. Delivery Period

4.1 Unless otherwise noted, delivery of quoted works shall be scheduled in accordance with Clause 5 Payment Terms.

4.2 Delivery compliance will be adjusted at the sole discretion of Air Communications in the event of the customer not providing all necessary information to continue works, site access delays however caused, changes in site conditions and non‐compliance with Air Communications payment terms.

4.3 Liquidated damages are not applicable unless specified in writing as part of the quotation.

5. Payment Terms

5.1 All quotations are subject to payment terms as follows;

Labour and supply:

I. Any quoted works shall be payable within 30 days of invoice date

II. Materials shall be invoiced on receipt by Air Communications and payable within 30 days of invoice.

III. Variations, where applicable, will be agreed within 7 days of notification to the client and payable 30 days of invoice date thereafter.

NB: Large Project and ongoing labour invoicing will occur for all works carried out within a calendar month. With prior approval labour invoicing may be based on project milestones otherwise this will default to daily site records (DSR) works for the month.

5.2 Failure to comply with the above payment terms will constitute a breach of contract and Air Communications may suspend work and commence debt recovery action. All referrals to a debt collection agency will result in an administration and debt collection surcharge of 15% of the overdue amount plus any costs incurred.

5.3 Any payment not made by the Customer to Air Communications will bear interest until paid. Interest will accrue at the rate from time to time prescribed under section 8 of the Civil Judgments Enforcement Act 2004 (WA) plus 11% pa from the due date to the date of payment.

5.4 Title to goods fully paid by the customer passes to the customer on dispatch. Where dispatch is unduly delayed by the customer for more than 60 days, Air Communications is entitled to charge holding costs calculated at 10% of the invoice value of the goods per annum for any days after the 60-day period elapses. Holding costs, where effected by the customer, will constitute a variation to the original order value and will require settlement in full to facilitate dispatch of goods.

6. Confidentiality and Intellectual Property

6.1 Air Communications may provide information and documents, whether stored on paper or by electronic or other means (“Information”) to the Customer.

6.2 In consideration for Air Communications providing the Information, the Customer covenants to Air Communications as follows:

I. the Information will be received and maintained by the Customer in the strictest confidence and the Information will not be used by the Customer for any purpose, save as directed by Air Communications in writing;

II. the Information will not be photocopied or otherwise reproduced by the Customer without Air Communication’s written consent and the Information will not at any time be disclosed by the Customer (directly or indirectly, in whole or in part) to  any other person except with Air Communication’s written consent;

III. the Information and any photocopies or reproductions must be returned to Air Communications upon request by Air Communications;

IV. the Information and any developments or additions to the Information however created shall remain the property of Air Communications and any copyright or intellectual property rights in such information are and shall be the property of Air Communications; and

V. the Customer releases Air Communications from all claims arising out of or incidental to the Information. Air Communications may plead this clause as a bar to any claim brought by the Customer in relation to and arising out of or incidental to the Information. The Customer indemnifies and agrees to keep Air Communications indemnified against all claims arising out of or incidental to the Information.

6.3 The Customer acknowledges and declares that it has not relied on any promise, representation, warranty or undertaking given by or on behalf of Air Communications in respect of the accuracy of the Information and in respect of the suitability of the Information.

7. Application of the Personal Property Securities Act (PPSA)

7.1 Title to the Goods remains with Air Communications and does not pass to the Customer until the Customer pays Air Communications all amounts owed by the Customer to Air Communications on any account.

7.2 In this clause PPSA means the Personal Property Securities Act 2009.  If a term in this clause has a particular meaning in the PPSA, it has the same meaning in this clause.

7.3 The Customer grants to Air Communications security interest under the PPSA in any Goods and Services supplied by Air Communications and any proceeds from Goods and Services (including insurance proceeds).

7.4 The Customer waives it right under section 157 of the PPSA to receive notice of any verification of the registration.

7.5 Air Communications can apply amounts it receives from the Customer towards amounts owing to it in such order as Air Communications chooses.

7.6 If the Customer defaults in the performance of any obligation owed to Air Communications under these terms and conditions or any Agreement then Air Communications may enforce its security interest in any Goods and Services (including proceeds) by exercising all or any of its rights under these Terms and Conditions or the Terms of any Agreement or the PPSA. To the maximum extent permitted by law, the Customer and Air Communications agrees that the following provisions of the PPSA do not apply to the enforcement by Air Communications of its security interest in the Goods and Services (including proceeds) supplied by Air Communications to the Customer: sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), 135, 142 and 143.

7.7 The Customer and Air Communications agree not to disclose information of the kind mentioned in section 275(1) of the PPSA, except in circumstances required by sections 275(7)(b) ‐(e) of the PPSA.

7.8 The Customer must promptly do anything required by Air Communications to ensure that Air Communication’s security interest is a perfected security interest and has priority over other security interests in the Goods and Services (including proceeds).

8. Indemnity

8.1 The Customer shall save, keep harmless and indemnify Air Communications against all actions, claims, proceedings, demands, liabilities, losses, damages, expenses and costs that may be brought against Air Communications or which Air Communications may pay, sustain or incur as a direct or indirect result of any of the following:

I. breach or non‐performance of an Agreement by the Customer;

II. any wrongful, wilful or negligent act or omission of the Customer or any of its employees, agents or contractors.

8.2 In the event of a complaint or claim by third parties, those complaints or claims shall to be addressed directly by the Customer.

9. Exclusion of Liability

9.1 Air Communication’s liability to the Customer is excluded to the fullest extent permitted by law. The exclusion includes, but is not limited to, liability in respect of torts (including negligence), breach of contract, breaches of statute and all other causes of action.

9.2 If Air Communication’s liability to the Customer cannot be excluded, then such liability is, subject to Clause 10.3, limited, at Air Communication’s option, to:

I. refunding the price paid for the Goods or Services;

II. replacing the Goods or re‐performing the Services; or

III. issuing credit for the purchase price to the Customer.

9.3 The Customer is only entitled to a refund, replacement or credit under Clause 10.2 if

I. the Goods and Services are defective by reason of faulty materials or poor workmanship or breach of any warranties or guarantees which cannot be excluded by law;

II. Air Communications is notified of the defect in writing within 7 days after the Goods and Services are received by the Customer;

III. the Goods are returned to the place nominated by Air Communications, at the expense of the Customer;

IV. the Goods are returned undamaged and in their original condition;

V. Air Communications is given a reasonable opportunity to correct the defect and cannot do so.

9.4 Notwithstanding anything in these Terms and Conditions or an Agreement, Air Communications is not liable for any consequential losses and indirect loss including but not limited to loss of profits, loss of revenue, loss of opportunity, loss of chance, loss of goodwill, rectification costs and other similar losses and Air Communications accepts no liability in respect of any Goods once they have been incorporated in any compound, structure or fixture.

10. Assignment

10.1 The Customer may not assign or transfer its rights under any Agreement without the prior written consent of Air Communications.

11. Default event

11.1 If a default Event occurs:

I. Air Communications will be entitled to cancel all or any part Agreement with the Customer which remains unperformed, in addition to and without prejudice to its other remedies;

II. all amounts outstanding under any Agreement Air Communications will, whether or not due for payment, become immediately due and payable;

III. the Customer’s right to possess the Goods immediately terminates; and

IV. Air Communications will be entitled to reclaim the Goods in the Customer’s possession or control and to dispose of them for Air Communication’s own benefit.

12. General

12.1 If the Customer is a Trustee, then an agreement is binding upon the Customer in its own right and in its capacity as Trustee of the trust and the Customer warrants that the trust is properly construed as the date of an Agreement, the Customer has at all times acted within the scope of its authority under the trust deed and the Customer will not permit any amendment to the terms of the trust (to the extent that it is able) without the prior written consent of Air Communications.

12.2 If any part of these Terms is found to be illegal, invalid or unenforceable, then such provision must be severed, and the remaining provisions will continue in full force and effect and operate as if the severed provision had not been included.

12.3 No other terms and conditions (including any submitted by the Customer) except those confirmed in writing by Air Communications will be incorporated into an Agreement.

12.4 If either party is delayed or prevented from performing any of its obligations under an Agreement (other than an obligation to pay money) by Force Majeure, the affected obligations are suspended until the Force Majeure has ceased.

12.5 Notices under these Terms and service of any originating process or writ by Air Communications against the Customer may be effected by post, facsimile or email to any postal address, facsimile number or email address provided by the Customer to Air Communications in accordance with Order 9 rule 3 of the Rules of the Supreme Court of Western Australia.

12.6 These Terms and Conditions are governed by and to be construed in accordance with the laws of Western Australia and the Customer submits to the exclusive jurisdiction of the Courts of Western Australia.

CONDITIONS OF CONTRACT

13. Design

13.1 The customer shall, as soon as practical, make available to Air Communications all the latest information, documents, drawings, geotechnical report and other relating to the said project required to undertake the work.

14. Site Access and Preparation

14.1 Unless otherwise specifically noted, site access, site preparation and any required site access permits will be the sole responsibility of the Customer. Access to site will permit standard construction equipment such as concrete trucks, semitrailer trucks and cranes to reach the proposed construction site without assistance.

14.2 The Customer is to ensure that the site will have sufficient flat area of cleared land to enable all construction activity to take place unhindered.

14.3 Unless otherwise specifically agreed in writing, site amenities shall be provided by the customer.

14.4 Air Communications and its approved subcontractors shall conform wherever possible to the site‐specific inductions, documentation, training and safety requirements as well as any government or other relevant agencies, or regulative authorities. If the required training or inductions extend beyond 1 hour per person in duration, Air Communications reserves the right to charge the customer for any additional costs incurred plus 10%.

14.5 Air Communications requires the project site to have clear and level access with suitable overhead clearance for the unloading of Product and Installation equipment. Suitable clearance is required between other personnel, products and equipment working or stored onsite as well as any completed structures or services. Unless otherwise specifically stated in writing, no traffic‐management has been allowed for in this quotation. Set out of the screw piles position, finished level and excavation of footings is the customer’s responsibility (unless stated otherwise in this quotation) and should complete prior to any installation work commencing. Air Communications shall as far as practicable address any concerns the customer may have including, access to the Project Site or the required clearances for the particular installation equipment to be used.

14.6 The Customer shall make provision for adequate protection of the public and the works.

15. Latent Ground Conditions

15.1 Air Communications or its approved subcontractor shall promptly notify the customer and/or the customer’s project representatives verbally and in writing as soon as is practical, of any subsurface latent physical conditions encountered on the site during the installation of the piles differing from those indicated on the supplied information or what can be reasonably expected or seen during a site inspection. Air Communications shall seek written directions from the customer and or the customer’s representatives in relation to these latent conditions encountered and of any subsequent changes to the original pile design or the scope of work. Air Communications shall provide a written cost variation to the customer for approval prior to proceeding due to any changes to the design or the scope of work as a result of these latent ground conditions.

15.2 This cost variation will include and is not limited to, additional manufacture costs for changes to the design of the piles or any pile extensions, predrilling, delivery, stand down costs for installation personnel and equipment, additional mobilisation costs or any additional engineering costs incurred.

16. Underground and Overhead Services

16.1 Unless advised in writing by the Customer, Air Communications will assume that there are no underground services or overhead services in the vicinity of the works area. Under these circumstances, any costs associated with repair of damaged services incurred during excavation / piling, or for the relocation of services, will be borne entirely by the Customer.

16.2 Unless otherwise stated in this quotation the customer or the customer’s representatives shall identify, locate and clearly mark all underground services and utilities on or near the site and make available all related information on these services and utilities to Air Communications and its approved subcontractors. Air Communications and its approved sub‐ contractors will not accept any liability or any claims from any damage to any underground services that have been incorrectly or inaccurately identified or differ from the information supplied.

17. Construction Stand-By

17.1 Stand‐by rates will apply when work is either halted at the request of the Customer due to severe weather, industrial action, or any project delays outside the control of Air Communications or, when site access is prevented after notice has been given by the Customer that site access and preparation has been completed. Standby rates to apply.

I. Labour: Will be charged per man based on a working week of 10 hours per day, 7 days per week at the going rate at the time of the standby situation arising.

II. Plant: Air Communications Plant: As per Air Communication’s most current scheduled hire rates Hired Plant: Cost +15%

III. Incidentals: Including but not limited to materials, accommodation and flights for personnel: Cost +1