Metropolitan Arborist Policy

1. DEFINITIONS: In these terms and conditions:

- “MA” means Metropolitan Arborist (ABN 45775507290) and its agents, servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth);
- “Additional charges” means the charges set out in clause 12;
- "Business day” means a day that is not a Saturday, Sunday, public holiday or bank holiday in Victoria;
- “Costumer” means any person offering to contract with MA on these terms and conditions including that person's agents' servants and employees and any related bodies corporate as defined in the Corporations Act 2001 (Cth);
-"Quotation" means the form of quotation issued by MA to the Customer specifying the cost of the Services and incorporating these terms and conditions by reference;
-“Order” means any order for services placed by the Customer with MA, in a form acceptable to MA;
-“Services” means the services provided by MA to the Customer as agreed between the Parties pursuant to an Order;
-"Consequential Loss" means any loss or damage suffered by a party or any other person which is indirect or consequential, including but not limited to loss of revenue, loss of income, loss of business, loss of profits, loss of goodwill or credit, loss of business reputation, future reputation or publicity, loss of use, loss of interest, damage to credit rating, or loss or denial of opportunity;
-“Loss” means any loss or damage whatsoever and howsoever caused and includes, without limitation, injury to or death of any person, damage to any real or personal property (including intellectual property) of any person, loss of income or profits, actual or prospective liability to any third party, any legal costs and any indirect or Consequential Loss or damage;
-“Invoice" means the invoice issued by MA to the Customer setting out the amount to be paid by the Customer;
-"Scheduled Service Time" means the date and time agreed by the Customer and MA that MA will provide the Services;
-"Worksite’" means the location at which the Services are to be provided including the surrounding areas required for use by MA in the provision of the Services including but not limited to mobilisation, access, hauling, boom swing, ingress and egress.

2. GENERAL: By engaging MA to provide the Services, the Customer is deemed to have accepted these terms and conditions. Unless MA otherwise agrees in writing, these are the only terms and conditions that apply to the provision of Services by MA and the Customer agrees that these terms and conditions will in all circumstances prevail over any other document, Order or other terms. If there is an inconsistency between any other terms agreed by the Customer and MA in writing and/or these terms and conditions, the terms agreed by the Customer and MA in writing will prevail to the extent of any inconsistency. Subject to clause 2() these terms and conditions supersede and exclude all prior and other discussions, dealings, representations (contractual or otherwise) and arrangements relating to the provision of Services including but not limited to those relating to the performance of those Services or the results that ought to be expected from the Services.

a) If there is an inconsistency between any other terms agreed by the Customer and MA in writing and/or these terms and conditions, the terms agreed by the Customer and MA in writing will prevail to the extent of any inconsistency.

3. ORDERS: All Orders must be placed with MA. The Customer must provide MA with all information and documentation that MA requires to perform the Services. The Customer is responsible for ensuring that all information and documentation provided to MA in respect of any Order is accurate and not misleading. MA has the discretion to accept or reject any Order or any variation or modification of an Order requested by the Customer.

4. QUOTE: Upon MA receiving an Order from a Customer, MA will provide that Customer with a Quotation. A Quotation is valid for a period of 30 days from the date of issue. Acceptance of the quote occurs when the Customer provides to MA confirmation that the quote is accepted at which point in time such Quotation becomes binding on the Customer.

5. CANCELLATION: Any Orders accepted by MA which are subsequently cancelled by the Customer, MA is entitled to invoice the Customer for the following amounts, which the Customer shall be liable to pay: i) all costs, expenses and disbursements incurred by MA in relation to providing the Services pursuant to that Order prior to its cancellation; plus ii) in relation to time expended by MA providing the Services pursuant to that Order prior to its termination, an amount equal to $150.00 per hour (ex GST), pro rata for part thereof.

6. WARRANTIES: All warranties and conditions that are capable of exclusion and would, apart from this provision form part of these terms and conditions, are expressly excluded to the maximum extent permitted by law.

7. LIMITATION OF LIABILITY: Except where legislation prevents MA's liability from being limited. or where a limitation of liability would otherwise render MA liable to a penalty, MA 's liability in connection with the provision of Services is limited to any one of the following as determined by MA in its sole discretion: i) MA providing the Services again; or ii) the refund of the fees paid by the Customer to MA for the Services. To the extent the law permits and notwithstanding any other clause of these terms and conditions, MA excludes all liability whatsoever to the Customer for any Consequential Loss.

8. INDEMNITY: The Customer must indemnify, and keep indemnified MA from and against any Loss or claims, including any third party claims, arising out of a breach of these terms and conditions by the Customer or anyone else authorised to represent the Customer.

9. SERVICE PROVISION: MA will endeavour to provide the Services to the Customer as close as possible to the Scheduled Service Time. Time is not of the essence under this clause and MA shall not be liable for any failure or delay in the provision of Services for any reason whatsoever. Notwithstanding any other clause in these terms and conditions, the Customer acknowledges and agrees that MA's capacity to provide the Services to the Customer at the Scheduled Service Time is subject to variables including but not limited to: site access; weather conditions; compliance with all laws and regulations applicable to MA's operations and the provision of Services; and compliance with all applicable MA policies. systems and guidelines, particularly in regard to safety.

10. DELAYS: The Customer is liable for the cost of delays caused by MA obeying any instructions given by the Customer including by not limited to bogging, additional works required to provide safe plant and equipment access, foreign material in trees and stumps. change/altered site conditions within the works area occurring after the date of the Quotation provided by MA.

11. VEGETATION OWNERSHIP: The Customer warrants that all items listed or referred to in the Quotation or in any communication by Customer are either: (1) located on the Customer's property; and/or (2) Customer has received full permission from the owner to enter into this Contract. Should any vegetation be mistakenly or knowingly misidentified as to ownership, the Customer agrees to indemnify MA for any loss, damages or costs incurred thereof pursuant to the indemnity provision herein.

12. WORKSITE REQUIREMENTS: The Customer warrants that the worksite is either: (1) located on the Customers property; and/or (2) located on another's property and the Customer has received full permission from the other property owner to enter into this Contract and to conduct work on that property. Unless otherwise agreed the Customer must ensure that the site is suitably prepared for MA to provide its Services. including unencumbered site access for operational purposes including demobilisation of plant and equipment. Additional charges may be incurred by the Customer for failure to remove obstructions.

13. PERMITS: The customer further warrants that unless otherwise agreed otherwise agreed in writing by MA the Customer has made all enquires and has obtained all of the required permissions, permits, approvals and authorisations for the Service to occur and the Customer agrees to indemnify MA for any loss, damages or costs incurred thereof pursuant to the indemnity provision herein.

14. EXCAVATION: Rock, including crushed rock, or any other material that is difficult to excavate or bore will be charged at an additional cost per ‘linear/cubic metre. Excludes excavation of contaminated material.

15. UNDERGROUND UTILITIES AND SERVICES: It is the responsibility of the Customer to make all enquiries and notify MA prior to the provision of Services as to the existence and location of all underground cables, pipes, fibres, plant, and any other subterranean services, utilities, or infrastructure at the Worksite.

MA will not be held liable for damage to items not located and made known to MA prior to the provision of its Services.

16. REPORTS: If the Services include a report, a draft report may be produced within 10 Business Days of the date that the Customer provides MA access to the site and all other information requested by MA. MA will produce and issue to the Customer a final report in electronic format. A single bound hard copy may be requested at no additional charge.

17. PRICE: Subject to clauses 6 and 18. unless otherwise agreed in writing, the price for the Services shall be the price stipulated in the Quotation. Any price indications or price list provided by MA to the Customer or otherwise made available to the Customer are subject to alteration at any time without notice. Where MA Services are provided on an hourly rate basis: charges will be calculated to include travel to and from the work site (from the MA depot or other work site); lunch break will not be charged; the Customer will bear the cost of any material purchase and supply, and/or equipment hire used to provide the service.

18. ADDITIONAL CHARGES: Any additional services requested by the Customer beyond the scope of the Quotation will be charged to the Customer.

19. FORCE MAJEURE: MA is not liable for any failure to perform any of its obligations under these terms and conditions as a result of any event beyond its reasonable control including, without limitation, where MA is prevented or hindered from providing the Services as a result of any strikes, lockouts or other labour difficulty, inability to obtain any necessary materials, products, equipment, facilities or services from usual suppliers on usual terms. power or water shortage, accidents or breakdowns of plant, machinery. software, hardware or communication network or weather conditions of any kind. In such circumstances, MA may without liability, suspend performance of any obligations under these terms and conditions, or terminate any affected Services and/or these terms and conditions by notice in writing to the Customer.

20. PAYMENT AND DEFAULT: Unless otherwise agreed in writing by MA, all Invoices and Additional Charges shall be payable by the Customer within 14 days from the date of the invoice. In the event that a Customer does not have an ABN or such ABN is not provided to MA at the time of making an Order, invoices will be payable upon delivery of Services, unless otherwise agreed in writing by MA. MA may, in its sole discretion, require payment prior to the provision of Services. MA reserves the right to charge interest on any overdue amount at a rate of 10% per month from the due date until payment in full is received by MA. The Customer agrees to bear all costs incurred by MA in collecting any overdue amounts including but not limited to collector agency fees, legal fees and court costs, on a full indemnity basis if;
i. the Customer defaults on any payments or is unable or states that it is unable to pay its debts as and when they fall due;
ii. the Customer being an individual commits an act of bankruptcy or has a controller or trustee appointed in respect of the Customer's estate or any part of the Customer's property or assets; '
iii. the Customer being a company passes a resolution for its winding up or enters into liquidation or has an application for winding up filed against it;
iv. a receiver, recover and manager, controller or voluntary administrators is appointed over any part of the property or assets of the Customer; or
v. the Customer experiences any analogous event having substantially similar effect to any of the events specified above,
vi. then MA may, at its option, cancel any Order and/or cease to provide Services without notice to the Customer and without prejudice to any other action or remedy which MA has or might otherwise have under these terms and conditions. In such circumstances, all monies owing and outstanding to Arbor Co on any Invoice and irrespective of whether the due date on any Invoice has occurred or passed shall become immediately due and payable.

21. RELEASE: Except where legislation cannot be excluded or would make this clause illegal, or where the inclusion of this clause would otherwise make MA liable to a penalty, the Customer releases MA from any claim that is made against MA for damages or otherwise in respect of any Loss, damage, death or injury arising from negligence or otherwise caused directly or indirectly by or arising from the provision of Services except to the extent that such Loss, damage, death or injury has been caused by MA.

22. SEVERANCE: if any provision of these terms and conditions or its application to any person or circumstance is or becomes invalid, illegal or unenforceable, the provision shall, so far as possible, be read down to such extent as may be necessary to ensure that it is not invalid, illegal or unenforceable. if any provision or part of it cannot be so read down the provision or part of it shall be deemed to be void and severable and the remaining provisions of these terms and conditions shall not in any way be affected or impaired.

23. VARIATION AND ASSIGNMENT: These terms and conditions may be varied by agreement between the parties in writing only. The Customer may not assign its rights under these terms and conditions without MA's prior written consent.

24. GOVERNING LAW: These terms and conditions are governed by the law of the State of Victoria, Australia. Each party submits to the nonexclusive jurisdiction of the Courts exercising jurisdiction in Victoria and waives any right to claim that those Courts are an inconvenient forum.

25. GST AND OTHER TAXES AND DUTIES: Notwithstanding any other clause in these terms and conditions, to the extent that any supply made under or in connection with these terms and conditions is a taxable supply (as defined by GST Law), the Customer must pay to MA, in addition to the consideration provided for under these terms and conditions for that supply an amount (additional amount) equal to the amount of that consideration multiplied by the rate at which GST is imposed in respect of the supply. The Customer must pay to MA the additional amount at the same time as the consideration to which it is referable. The Customer is responsible for paying any other duties, taxes or charges, including any stamp duty (if applicable), in relation to the provision of Services.

26. WAIVER: by MA of a breach of these terms and conditions or of any right or power arising on a breach of these terms and conditions must be in writing and signed by MA. A right or power created or arising on a breach of these terms and conditions is not waived by any failure to exercise or delay in exercising, or a partial exercise of, that or any other right or power.

27. NO RIGHT TO OFFSET: No amount owing whether present or future, actual, contingent or prospective and on any account whatsoever by the Customer to MA may be offset against any amount owing whether present, future, actual, contingent or prospective of the Customer to MA hereunder on any other account whatsoever.

28. HOURS OF OPERATION: Unless otherwise specified and agreed upon by both parties, Services are provided during MA operating hours of 7:30am to 3:30pm Monday to Friday.