Terms of Trade

BDDC Pty Ltd trading as Big Ditch Aquatecture | ABN 41 688 952 427

Effective from 16 August 2026. These Trading Terms replace all earlier versions and apply to every quotation, invoice and engagement issued on or after that date.

Contents

1 Parties and Scope. 2 Engagement and Acceptance. 3 Quotations, Price and Variations. 4 Fuel Cost Variations. 5 Payment Terms. 6 GST. 7 Interest and Late Payment. 8 Deposits and Cancellation. 9 Subcontractors. 10 Delivery and Access. 11 Client Initiated Delays and Stand Down Charges. 12 Weather Stand Downs. 13 Demobilisation and Remobilisation. 14 Bogging and Ground Condition Risk. 15 Restricted and Constrained Access. 16 Damage to Ground Surfaces, Landscaping and Infrastructure. 17 Supply of Equipment. 18 Additional Equipment, Plant and Attachments. 19 Project Period and Duration of Works. 20 Risk and Title. 21 Customer’s Obligations. 22 Warranties and Liability. 23 Approvals and Compliance. 24 Promotional and Design Collateral. 25 Indemnity. 26 Charge over Customer’s Property. 27 Personal Property Securities Act. 28 Transactions and Credit Account. 29 Application of Moneys. 30 Set Off. 31 Withdrawal or Variation of Credit. 32 Suspension or Ceasing of Supply. 33 Certification. 34 Service of Notices. 35 Notification of Change of Details. 36 Continuing Guarantee. 37 Trusts. 38 Joint and Several. 39 Assignment. 40 Waiver. 41 Amendments and Review. 42 Severance. 43 Entire Terms and Precedence. 44 Expenses. 45 Definitions and Interpretation.

1 Parties and Scope

1.1 BDDC Pty Ltd trading as Big Ditch Aquatecture (ABN 41 688 952 427), and each related body corporate, subsidiary or associated entity, and as trustee of any trust from time to time, individually and together called Big Ditch, operates under these Trading Terms.

1.2 These Trading Terms apply to all quotes, invoices and engagements related to Big Ditch, Big Ditch Aquatecture Pty Ltd, Bucket-Man Dam Construction, Angus Bucketman, Dirtshaper, xBuckets and all other entities associated with BDDC Pty Ltd trading as Big Ditch Aquatecture.

1.3 All projects, invoices and quotes, without exception, are subject to these Trading Terms, and they are binding on all customers of Big Ditch.

2 Engagement and Acceptance

2.1 Any instructions received by Big Ditch from the Customer for the Works, the Customer’s acceptance of Equipment supplied on hire by Big Ditch, or the Customer’s acceptance of Products or Services supplied by Big Ditch, constitutes acceptance of these Trading Terms and creates an Engagement.

2.2 Payment of any deposit constitutes acceptance of these Trading Terms.

2.3 Where more than one Customer has entered into an Engagement, they are jointly and severally liable under these Trading Terms.

2.4 Upon Engagement, these Trading Terms are irrevocable and may only be amended in accordance with clause 41.

2.5 Any Special Conditions annexed to a Quotation form part of these Trading Terms and are to be read with them, subject to clause 43.

3 Quotations, Price and Variations

3.1 Unless otherwise confirmed in writing, the Price is in accordance with Big Ditch’s current pricing model, as amended from time to time.

3.2 In the alternative to clause 3.1, at Big Ditch’s discretion, the Price is:

(a) as indicated on invoices provided by Big Ditch to the Customer in respect of Services supplied;

(b) as indicated on the Job Docket or Job Dockets provided by Big Ditch to the Customer from time to time; or

(c) Big Ditch’s quoted price, subject to these Trading Terms, which is binding on Big Ditch provided the Customer accepts the Quotation in writing within thirty (30) days of issue.

3.3 Big Ditch may change the Price in the event of any variation to the Quotation.

3.4 Where Services are engaged on an hourly basis, charges are tracked using the Big Ditch Earthmoving App.

3.5 At Big Ditch’s discretion a bond may be required, which is refunded on completion of the project.

3.6 At Big Ditch’s discretion a deposit may be required, subject to clause 8.

3.7 Any variation from the Works described in the Quotation, including any variation as a result of latent conditions, is invoiced separately.

3.8 Unless expressly stated otherwise in writing, any Quotation, estimate, scope of works, project period, methodology or price provided by Big Ditch is based on a visual inspection only of the site and of the ground conditions observable at the time of inspection, together with information supplied by the Customer. Big Ditch does not warrant that visually assessed surface conditions accurately represent the actual sub-surface, sub-stratum, geological, hydrological, clay, rock, moisture, seepage, compaction, contamination, service, obstruction or other latent site conditions.

3.9 The Customer acknowledges that earthworks, dam construction and excavation works may reveal conditions that could not reasonably be identified by visual inspection before commencement of the Works. If the actual site conditions, sub-surface conditions or sub-stratum conditions differ from those assumed, observed or assessed at the time of the Quotation, Big Ditch may issue a variation, an amended Quotation, a revised scope of works, a revised project period or an additional invoice for all additional costs, delays, materials, labour, plant, equipment, subcontractors, cartage, water, bentonite, fuel, travel, testing, mobilisation, demobilisation, standby time, remediation works, redesign, rework or changed methodology required as a result of those conditions.

3.10 Such variations may include, without limitation, additional costs arising from unsuitable clay or sealing material, excessive sand, silt, gravel, rock, shale or hardpan, wet or boggy ground, springs, seepage, sub-surface water, hidden fill, contamination, buried objects, underground services, unstable ground, unsuitable moisture content, unexpected compaction requirements, or any other condition materially different from the conditions assumed by Big Ditch when preparing the Quotation.

3.11 Any additional amount payable under this clause is payable in accordance with these Trading Terms and is not included in the original Quotation, estimate or invoice unless specifically included in writing.

3.12 Where a variation requires the Customer’s approval or payment, Big Ditch may suspend, delay, vary or cease the Works until that approval or payment is given, and Big Ditch is not liable for any delay, loss or damage arising from that suspension, delay, variation or cessation. Clauses 12 and 13 apply to any resulting stand down or demobilisation.

3.13 Payment for all variations is due in accordance with the ordinary terms of payment set out in these Trading Terms.

3.14 Big Ditch may submit invoices for the Works from time to time.

3.15 The value of the Works includes the reasonable value of variations and the value of materials and equipment used.

3.16 Big Ditch may charge the Customer a surcharge of 50 per cent on any third party or disbursed costs incurred by Big Ditch in connection with the Works, including consumables, equipment hire, transport and dumping fees, without set off or deduction. Where this clause is applied, the surcharge is shown as a separate line on the invoice.

3.17 Big Ditch may terminate the Works or provide an amended Price where the Customer does not approve a variation issued under this clause.

4 Fuel Cost Variations

4.1 If the rolling 30 day average price of diesel fuel increases by more than 10 per cent above the rolling 30 day average price of diesel fuel at the time the relevant Quotation was issued, Big Ditch may apply a fuel surcharge in respect of the affected Works.

4.2 Any fuel surcharge applied under clause 4.1 is calculated on the actual increased fuel costs incurred by Big Ditch.

4.3 Before applying any fuel surcharge, Big Ditch will give the Customer written notice of the surcharge, being a Fuel Cost Variation Notice. The notice sets out the basis of the calculation and the amount of the surcharge.

4.4 The Customer acknowledges and agrees that:

(a) fuel costs are subject to market fluctuations outside the reasonable control of Big Ditch;

(b) a fuel surcharge applied in accordance with this clause is reasonable and represents a fair allocation of risk; and

(c) payment of any fuel surcharge is due in accordance with the ordinary payment terms set out in these Trading Terms.

5 Payment Terms

5.1 The Customer must pay for all Works in accordance with the payment schedule annexed to the Quotation, and in any event before Big Ditch’s egress from the project site.

5.2 Amounts payable by the Customer under these Trading Terms must be paid in full without deduction or set off.

5.3 Time for payment is of the essence and the time for payment is stated on the invoice or Job Docket.

5.4 Where no payment schedule is annexed and no time for payment is stated, payment is due on delivery of the Products or Services, or at Big Ditch’s discretion:

(a) for approved credit account customers, within thirty (30) days of the end of the month in which the invoice is generated; or

(b) otherwise, two (2) days before completion of earthworks.

5.5 Payment may be made by cash on delivery, by credit card subject to these Trading Terms, or by any other method agreed in writing.

6 GST

6.1 Each amount payable by the Customer under these Trading Terms in respect of a Taxable Supply by Big Ditch is a GST exclusive amount. On receipt of a tax invoice the Customer must, in addition to that amount and at the same time, pay to Big Ditch an amount equal to the GST payable on the Taxable Supply.

6.2 The Price is increased by the amount of any GST and any other taxes and duties which may be applicable.

7 Interest and Late Payment

7.1 Big Ditch may charge interest on amounts not paid within the credit period at the rate of 3 per cent per annum above the annual business overdraft interest rate of its principal banker, as determined and calculated by Big Ditch.

7.2 If any account remains unpaid at the end of the project, that sum becomes immediately due and payable.

8 Deposits and Cancellation

8.1 At Big Ditch’s discretion, delivery of Services takes place when the Customer pays the deposit, being 50 per cent of the total estimate.

8.2 Big Ditch plans projects well in advance and guarantees a project start once a deposit is paid. If the Customer cancels, a cancellation fee of 50 per cent of the deposit is deducted from any refund, to recoup the costs of planning, scheduling and holding plant and personnel available.

8.3 Big Ditch may cancel an Engagement or cancel delivery of the project at any time. Big Ditch does not incur a cancellation fee where Big Ditch cancels.

8.4 If the Customer cancels delivery of the project without giving reasonable notice, Big Ditch may charge the Customer any costs incurred, including any costs of the kind described in clause 13.

8.5 Except for amounts payable under clause 13, the Customer is not liable for hire costs during transportation on or after the day of termination.

8.6 If any invoice remains unpaid on final demand and before Big Ditch leaves the site, any deposit paid is forfeited to Big Ditch.

9 Subcontractors

9.1 Big Ditch may replace any Subcontractor at any time where Big Ditch reasonably believes the Subcontractor is not performing its obligations.

9.2 If Big Ditch replaces a Subcontractor, the Customer will sign all paperwork reasonably required by Big Ditch.

10 Delivery and Access

10.1 If requested by Big Ditch, before the Works the Customer:

(a) must permit Big Ditch or its agent to attend at the Premises to determine the condition of the Premises and its suitability for the Works;

(b) must obtain the necessary permits and plans for completion of the requested Works and pay any associated fees; and

(c) must clearly mark the location of, and identify, all services above and below ground at the Premises before the Works commence.

10.2 A minimum of twenty-four (24) hours notice must be given for standby.

10.3 In the event of any standby, Big Ditch may charge fees in respect of standby time. Clauses 11, 12 and 13 apply where the standby arises from a client initiated delay, a weather stand down or a demobilisation.

10.4 Big Ditch may amend the delivery date and the completion date due to circumstances beyond its control.

10.5 The Customer must make all arrangements necessary to take delivery of the Equipment whenever it is tendered for delivery.

10.6 If the Customer is not able to take delivery of the Equipment as arranged, Big Ditch may charge the Customer storage or hire fees.

10.7 Delivery of the Equipment to a third party nominated by the Customer is deemed to be delivery to the Customer.

10.8 The Customer is responsible for providing free and adequate access by Big Ditch to the site on which the Equipment is to be operated, and clause 15 applies where that access is constrained.

10.9 Any failure or delay in delivering the Equipment does not entitle either party to treat the Engagement as repudiated.

10.10 Subject to clause 22, Big Ditch is not liable for any loss or damage resulting from or related to delays in delivery.

11 Client Initiated Delays and Stand Down Charges

11.1 Where the Customer requests, directs or causes a change to the contracted project commencement date within 30 days of that contracted start date, a stand down charge applies for each day between the original contracted start date and the revised commencement date.

11.2 The stand down charge rate applicable under clause 11.1 is $1,500 per day, excluding GST, for Big Ditch equipment and personnel, plus any additional stand down charges imposed on Big Ditch by its Subcontractors as a direct consequence of the Customer’s delay.

11.3 Stand down charges under this clause are payable whether or not Big Ditch’s equipment and personnel are physically present on site, because the charges reflect committed contractual obligations that Big Ditch cannot release within the 30 day window.

11.4 Big Ditch will give the Customer written notice of stand down charges as soon as practicable after the Customer’s request for a change to the commencement date.

11.5 Stand down charges under this clause are in addition to, and do not reduce or replace, any other amount payable under these Trading Terms.

11.6 This clause applies only to delays requested, directed or caused by the Customer. It does not limit clause 12, and a day is not charged under both clause 11 and clause 12.

12 Weather Stand Downs

12.1 A Weather Stand Down Day is any day on which, in Big Ditch’s reasonable opinion, the Works cannot safely or effectively proceed, in whole or in substantial part, because of rain, storm, wind, flood, saturated, waterlogged or unworkable ground, or any other weather condition or weather related site condition.

12.2 A part day on which the Works cannot proceed for four (4) hours or more is a Weather Stand Down Day.

12.3 The first two (2) Weather Stand Down Days in any Engagement are not charged to the Customer.

12.4 Each Weather Stand Down Day after the first two (2) is charged to the Customer at $1,250 per day, excluding GST, together with any additional stand down, standby, float or hire charge imposed on Big Ditch by a Subcontractor or hire provider as a direct consequence of the stand down.

12.5 The Customer acknowledges that the rate in clause 12.4 is a genuine and reasonable estimate of the continuing costs Big Ditch incurs on a Weather Stand Down Day, being plant finance, insurance, registration, depreciation, float and transport commitments, labour and personnel costs, accommodation and travel, and the loss of the opportunity to deploy the plant elsewhere, and that those costs continue whether or not the plant is working.

12.6 The charge under clause 12.4 is payable whether or not Big Ditch’s equipment and personnel are physically present on site on that day, and whether or not the Equipment remains at the Premises.

12.7 Big Ditch will give the Customer written notice of each Weather Stand Down Day as soon as practicable, and in any event within five (5) Business Days. The notice identifies the day, the reason the Works could not proceed, and the amount charged. The Customer may dispute a notice in writing within five (5) Business Days of receiving it, failing which the day is accepted.

12.8 Rainfall or other weather records published by the Bureau of Meteorology for the station nearest the Premises, together with Big Ditch’s site records and photographs, are admissible evidence of the conditions on any day claimed as a Weather Stand Down Day.

12.9 A Weather Stand Down Day charge is not a variation requiring the Customer’s approval, and clause 3.12 does not apply to it.

12.10 Big Ditch may extend the project period and the completion date by the number of Weather Stand Down Days without liability, and clauses 10.4 and 10.10 apply.

12.11 Charges under this clause are in addition to, and do not reduce or replace, any amount payable under clause 11, clause 13 or any other provision of these Trading Terms. A day charged under clause 14.2(c) as a bogging immobilisation day is not also charged as a Weather Stand Down Day.

13 Demobilisation and Remobilisation

13.1 Where the Works are suspended, delayed or stood down for any reason not caused by Big Ditch, including a Weather Stand Down Day under clause 12, a client initiated delay under clause 11, a bogging event under clause 14, constrained access under clause 15, unsuitable site or ground conditions, a pending variation approval under clause 3.12, or non-payment, Big Ditch may demobilise all or any plant, equipment and personnel from the Premises.

13.2 The Customer acknowledges that Big Ditch’s plant is transported by third party heavy haulage and float operators, that each movement of plant onto or off the Premises is a separately charged service, and that Big Ditch cannot leave plant idle at the Premises indefinitely.

13.3 Where Big Ditch demobilises under clause 13.1 and later remobilises to complete the Works, the Customer is liable for the Remobilisation Costs, comprising:

(a) the actual cost charged to Big Ditch by any third party float, heavy haulage, transport, escort, permit or pilot provider for the removal of plant from the Premises and its return to the Premises;

(b) all Big Ditch float, truck, low loader, fuel, travel time, operator and labour costs for each movement, whether performed by Big Ditch or by a Subcontractor;

(c) any minimum charge, cancellation charge, rebooking charge or waiting time charge imposed on Big Ditch by a transport or hire provider as a consequence of the stand down or of the rescheduling of transport;

(d) all costs of re-establishment on return, including re-setting out, re-pegging, re-establishing site access, re-establishing water supply, and any repeat site preparation or safety set up; and

(e) any offsite storage, yard or holding charge incurred for the plant during the period of demobilisation.

13.4 Clause 3.16 applies to third party costs charged under clause 13.3.

13.5 Remobilisation Costs are in addition to, and do not reduce or replace, any charge under clause 11 or clause 12, or any other amount payable under these Trading Terms. Demobilisation does not of itself end a stand down period.

13.6 Big Ditch will give the Customer written notice of a decision to demobilise, and of the estimated Remobilisation Costs, as soon as practicable. Remobilisation is not a variation requiring the Customer’s approval, and clause 3.12 does not apply to it.

13.7 Big Ditch is not obliged to remobilise until all amounts then owing by the Customer, including stand down charges and Remobilisation Costs incurred to that date, have been paid in full.

13.8 Big Ditch may nominate the date of remobilisation having regard to the availability of plant, personnel and transport, and to site conditions. Subject to clause 22, Big Ditch is not liable for any delay, loss or damage arising from the timing of remobilisation, and clauses 10.4 and 10.10 apply.

14 Bogging and Ground Condition Risk

14.1 The Customer acknowledges that ground conditions at the Premises may present a risk of Equipment becoming bogged or immobilised during the Works. The Customer warrants that it has disclosed all ground conditions known to it, including areas of soft, wet, unstable or flood prone ground, before commencement of the Works.

14.2 If any Equipment becomes bogged, immobilised or unable to operate freely due to ground conditions at the Premises:

(a) all costs associated with the recovery, extraction or salvage of the Equipment, including heavy haulage, crane hire, additional machinery, towing, winching and any third party salvage services, being the Heavy Salvage Costs, are borne by the Customer and invoiced as a variation in accordance with these Trading Terms;

(b) all costs of repair to Equipment arising from or connected with the bogging event, including mechanical damage, track damage, undercarriage damage, hydraulic damage and associated parts and labour, are borne by the Customer;

(c) any period during which Equipment is immobilised due to a bogging event is charged to the Customer at the full daily or hourly hire rate as applicable, including standby time pending recovery; and

(d) subject to clause 22, Big Ditch is not liable for any delay to the Works or any consequential loss arising from a bogging event caused by ground conditions at the Premises.

14.3 The Customer’s obligations under this clause apply whether the bogging results from the Customer’s failure to disclose ground conditions or from unforeseen site conditions, but do not extend to a bogging event caused solely by Big Ditch’s negligent operation of the Equipment in ground conditions that Big Ditch knew to be unsuitable.

14.4 Clause 3.16 applies to third party costs charged under this clause.

15 Restricted and Constrained Access

15.1 The Customer is responsible under clause 10.8 for providing free and adequate access to and within the Premises for the plant required for the Works, including sufficient width, height, gradient, surface stability and turning area for tracked and wheeled plant, attachments and floats.

15.2 The Customer acknowledges that the operating dimensions of plant include its attachments, and that a bucket, blade, ripper, hammer or other attachment may be wider than the tracks or wheels of the machine.

15.3 Access is Constrained Access where access to, within or from the Premises is restricted by fences, gates, posts, walls, buildings, sheds, tanks, trees, embankments, retaining structures, narrow gaps, pinch points, steep gradients, drop offs, or slippery, soft or unstable surfaces, such that plant cannot pass with a reasonable working clearance.

15.4 Where access is Constrained Access, the risk arising from that constraint is borne by the Customer, and the Customer is responsible for the cost of any contact with, movement of, displacement of, scraping of, or damage to any fence, gate, post, wall, structure, improvement, vegetation, service or other item at or near the constrained access point or route, whether or not the contact was observed at the time, and whether or not a spotter was in use.

15.5 The Customer acknowledges that where working clearances are marginal, incidental contact of that kind is a foreseeable consequence of operating heavy plant through the access made available by the Customer, and is not of itself evidence of any failure of skill or care by Big Ditch.

15.6 Where Big Ditch considers access to be Constrained Access, Big Ditch may:

(a) require the Customer, at the Customer’s cost, to remove, relocate, dismantle or protect any fence, gate, post, structure, vegetation or other obstruction before the Works or any further stage of the Works proceeds;

(b) require the Customer, at the Customer’s cost, to form, widen, stabilise, rock or otherwise improve an access route;

(c) require additional or smaller plant, in which case clause 18 applies;

(d) suspend, delay or cease the Works or any part of them, in which case clauses 3.12, 12 and 13 apply; or

(e) proceed using the access made available, in which case clauses 15.4 and 15.5 apply in full.

15.7 Any spotter, observer or other person provided by or on behalf of the Customer is provided at the Customer’s risk. The use of a spotter does not transfer risk to Big Ditch, and the absence, departure or inattention of a spotter does not increase Big Ditch’s liability.

15.8 The Customer must comply with clause 19.3 at all times and must keep all persons, including the Customer, clear of operating plant, swing paths, access routes and pinch points. The Customer indemnifies Big Ditch in respect of any loss, damage or claim arising from a failure to do so.

15.9 Where Big Ditch elects to proceed under clause 15.6(e), Big Ditch will where practicable record the constraint in writing or by photograph before first movement of plant through the access, and provide that record to the Customer on request.

15.10 Any reinstatement, repair, realignment or replacement of an item damaged under this clause is a variation under clause 16.4 and is at the Customer’s cost.

15.11 Nothing in this clause obliges Big Ditch to attempt access that Big Ditch considers unsafe.

16 Damage to Ground Surfaces, Landscaping and Infrastructure

16.1 The Customer acknowledges that earthmoving, dam construction and heavy machinery operations, including access to and egress from the work area, necessarily involve the movement of tracked and wheeled plant across the Premises, and that this may cause rutting, churning, compaction, scarring, subsidence or other disturbance to lawns, pasture, gardens, ground surfaces, tracks and access routes, particularly in wet or saturated conditions.

16.2 All damage to lawns, pasture, landscaping, gardens, trees, driveways, gravel or formed tracks, paving, fences, gates, yards, culverts, crossings, retaining structures, buildings, sheds, pipework, irrigation systems, water lines, tanks, septic or effluent systems, electrical, telecommunications or other services, and any other surface or infrastructure at or adjacent to the Premises, arising from or connected with the carrying out of the Works or with access to and egress from the Premises, is at the Customer’s risk and expense, except to the extent that the damage is caused by Big Ditch’s failure to exercise reasonable care and skill.

16.3 Big Ditch is not obliged to reinstate, repair, resurface, re-level, topsoil, reseed, replant or otherwise remediate any such damage. Big Ditch’s obligation as to finished levels is limited to clause 19.4.

16.4 If the Customer requests any reinstatement or remediation of such damage, that work is a variation and is charged to the Customer at Big Ditch’s applicable rates, including all additional machinery, attachments, floats, materials, labour, Subcontractors, cartage and time required, and clause 3.16 applies.

16.5 The Customer must, before the Works commence, clearly identify and mark all above and below ground services, structures and improvements in accordance with clause 10.1(c). The Customer bears all cost, loss and liability arising from any service, structure or improvement that was not identified and marked, and indemnifies Big Ditch in respect of it.

16.6 The Customer is responsible for nominating and preparing access routes suitable for the plant required for the Works. Subject to clause 22, Big Ditch is not liable for damage arising from an access route that proves unsuitable.

17 Supply of Equipment

17.1 Equipment is supplied by Big Ditch on these Trading Terms to the exclusion of anything else.

17.2 Subject to these Trading Terms, Big Ditch supplies all consumables necessary for the operation of the Equipment.

17.3 Big Ditch is responsible for the repair and maintenance of the Equipment, and the Customer must not attempt any repairs without Big Ditch’s prior written consent. This clause does not affect clause 14.2(b) or clause 21.2.

18 Additional Equipment, Plant and Attachments

18.1 Any equipment, plant, machinery, attachment, tool or consumable required for the Works over and above that expressly itemised in the Quotation is at the Customer’s expense and is charged as a variation in accordance with these Trading Terms.

18.2 Clause 18.1 applies, without limitation, to pumps and dewatering equipment, hoses and pipework, bobcats, skid steers and small plant, additional excavators or dozers, rollers and compaction plant, water carts and water cartage, generators, lighting, pipe and culvert materials, geofabric, bentonite, rock, gravel or imported fill, floats and additional mobilisation, and any hired or subcontracted plant.

18.3 Clause 18.1 applies regardless of the reason the additional equipment is required, and is not limited to latent or differing site conditions.

18.4 The Customer pays all associated hire, delivery, collection, float, fuel, operator, standby and return costs, and clause 3.16 applies to those costs.

18.5 Big Ditch will notify the Customer of the additional equipment required and of its estimated cost before the cost is incurred, where it is practicable to do so.

18.6 Big Ditch may suspend or delay the Works until the Customer approves the additional equipment or pays for it, and clauses 3.12, 12 and 13 apply.

19 Project Period and Duration of Works

19.1 The project period is charged on a daily or hourly rate, as determined by Big Ditch, for the entire period, unless otherwise agreed in writing in the Quotation.

19.2 Hourly charges commence when the Equipment is floated or dropped to the Customer’s site and continue until the Equipment is collected. Clauses 12 and 13 apply to any period during which the Works are stood down or the Equipment is demobilised.

19.3 During the period in which the Works are to be completed, the Customer must:

(a) immediately notify Big Ditch if any competent authority requires the suspension or cessation of the Works;

(b) immediately notify Big Ditch if it becomes aware of any fact, matter or thing that might reasonably affect the Works;

(c) allow Big Ditch, and any agent or Subcontractor of Big Ditch, to store the Equipment at the Premises;

(d) take all reasonable precautions to keep all persons, including the Customer, its employees, agents and visitors, away from the Equipment; and

(e) comply with all reasonable safety requests of Big Ditch, and not at any time operate the Equipment, and ensure that its employees do not operate the Equipment.

19.4 Final trim is completed to the level allowed by the condition of the material. Big Ditch is not responsible for the finished level where the material conditions are unsuitable.

20 Risk and Title

20.1 Risk in the Equipment passes to the Customer on delivery of the Equipment to the worksite.

20.2 The Customer is responsible for the safekeeping of the Equipment while it is at the Premises and indemnifies Big Ditch against all loss of or damage to the Equipment occurring at the Premises, other than loss or damage caused solely by a defect in the Equipment or by Big Ditch’s own negligence, and subject to clauses 14 and 20.14.

20.3 The Equipment is and remains the absolute property of Big Ditch. Nothing in an Engagement entitles the Customer to retain or hold Equipment, or creates any proprietary interest in the Equipment.

20.4 The Customer irrevocably grants to Big Ditch, and to any agent or Subcontractor of Big Ditch, the right to enter upon any premises to repossess Equipment.

20.5 The Customer is not authorised to create a lien over the Equipment for any reason.

20.6 Where Products are supplied by way of sale, property in the Products does not pass until the Customer has paid all money owing to Big Ditch in full. Risk in the Products passes to the Customer on delivery.

20.7 The Customer holds the Products as fiduciary bailee and agent for Big Ditch and must keep the Products separately identifiable.

20.8 If an Event of Default occurs then, without prejudice to Big Ditch’s other rights, Big Ditch may repossess the Products.

20.9 If the Customer sells any of the Products supplied while money is owed to Big Ditch, the Customer holds the proceeds on trust for Big Ditch.

20.10 If the Products are resold, or goods or services using the Products are manufactured and sold, the Customer assigns to Big Ditch the right to receive the sale proceeds to the extent of the amount owing.

20.11 The Customer must not assign or grant a security interest in respect of such book debts without Big Ditch’s consent.

20.12 If the Customer uses the Products in a process of its own or of a third party, the Customer holds such part of the resulting product as relates to the Products on trust for Big Ditch.

20.13 Ownership of any construction remains with Big Ditch and transfers to the Customer only once all monies owed are received by Big Ditch. Where an Event of Default occurs, Big Ditch may deconstruct any construction it has completed, on giving the Customer seven (7) days written notice.

20.14 If the Equipment is lost, damaged or destroyed due to any fault of the Customer, its servants or agents, the Customer must compensate Big Ditch for the full replacement value.

21 Customer’s Obligations

21.1 The Customer is responsible for the provision of transportation, storage and safekeeping of all fuels, oils and greases provided for use in the Equipment.

21.2 The cost of repair or replacement of any GET required during or at the end of the project period is the Customer’s responsibility.

22 Warranties and Liability

22.1 Any work done by another contractor on any dam completed by Big Ditch voids all warranties and guarantees given by Big Ditch in respect of that dam.

22.2 Nothing in these Trading Terms excludes, restricts or modifies any guarantee, condition, warranty, right or remedy conferred on the Customer by the ACL or by any other statute, to the extent that it cannot lawfully be excluded, restricted or modified.

22.3 Subject to clause 22.2, and to the maximum extent permitted by law:

(a) Big Ditch is not liable for any Consequential Loss;

(b) Big Ditch’s total aggregate liability arising out of or in connection with the Works, whether in contract, in tort including negligence, under statute or otherwise, is limited to the Price paid by the Customer for the Works to which the liability relates; and

(c) Big Ditch is not liable for any loss or damage to the extent that it is caused or contributed to by the Customer, its employees, agents, contractors or invitees, or by any failure of the Customer to comply with these Trading Terms.

22.4 Where Big Ditch is liable for a failure to comply with a guarantee under the ACL that cannot be excluded, and the law permits Big Ditch to limit its liability, Big Ditch’s liability is limited, at Big Ditch’s election, to supplying the Services again or to paying the cost of having the Services supplied again.

22.5 The Customer must notify Big Ditch in writing of any claim in connection with the Works within thirty (30) days of the Customer becoming aware of the matter giving rise to the claim.

23 Approvals and Compliance

23.1 Responsibility for negotiating and applying for any government or council approval required for any Works remains with the Customer. Big Ditch takes no responsibility for such approvals and is not responsible for any delay or refusal.

23.2 Big Ditch does not hold itself out as knowledgeable about the by-laws or approvals required in each local government area.

23.3 It is the Customer’s responsibility to be aware of the harvestable rainfall rights allocation applying to its own property. Big Ditch takes no responsibility for understanding or researching harvestable rights for the Customer.

24 Promotional and Design Collateral

24.1 All designs, sketches, concepts and presentations remain the exclusive property of Big Ditch, and ownership does not pass to any other person or entity.

24.2 All photographs, videos and digital representations taken on site at any time, whether during a quoting phase, a site inspection or construction, remain the copyright property of Big Ditch, and ownership does not pass to any other person or entity.

24.3 Such collateral may be used by Big Ditch for promotional or other purposes.

25 Indemnity

25.1 The Customer indemnifies Big Ditch in relation to any direct or indirect loss, liability or damage suffered by Big Ditch or by any other person as a result of the Customer’s negligence or breach of these Trading Terms.

25.2 The indemnities in clauses 15.8, 16.5, 20.2 and 25.1 are continuing obligations, independent of the Customer’s other obligations, and survive completion of the Works.

25.3 The Customer’s liability under this clause is reduced to the extent that the loss, liability or damage was caused by Big Ditch’s negligence.

26 Charge over Customer’s Property

26.1 As security for payment of all moneys payable by the Customer, and for the Customer’s obligations under these Trading Terms, the Customer charges in favour of Big Ditch the whole of the Customer’s undertaking, property and assets, including all of the Customer’s interests, both legal and beneficial, in freehold and leasehold land.

26.2 The Customer irrevocably appoints each Officer as the Customer’s attorney to do all things necessary to give effect to this clause.

26.3 On demand by Big Ditch, the Customer must immediately execute a mortgage or other instrument as required by Big Ditch.

26.4 If the Customer fails within a reasonable time of such demand to execute that mortgage or instrument, Big Ditch may execute it on the Customer’s behalf.

27 Personal Property Securities Act

27.1 In these Trading Terms, financing statement, financing change statement, security interest, purchase money security interest, attached, attachment, perfected, accession and commingled, and all related terms, have the meaning given to them by the Personal Property Securities Act 2009 (Cth), the PPSA.

27.2 In consideration of Big Ditch supplying the Services to the Customer at the request of the Customer, the Customer:

(a) grants to Big Ditch a purchase money security interest, a PMSI, in all Products supplied by Big Ditch to the Customer from time to time, as security for payment of all moneys owing;

(b) grants to Big Ditch a security interest, an SI, in all of its present and after acquired property and in all of its present and future rights in relation to its property;

(c) agrees that any Products, or proceeds of sale of the Products, coming into existence after the date of these Trading Terms are subject to the PMSI;

(d) acknowledges that it has received valuable consideration from Big Ditch and agrees that it is bound by these Trading Terms; and

(e) agrees that the PMSI and the SI have attached to all Products supplied now or in the future by Big Ditch to the Customer.

27.3 Big Ditch may register a financing statement in the Personal Property Securities Register.

27.4 The costs of registering a financing statement or a financing change statement may be charged to the Customer.

27.5 The Customer must promptly, on request by Big Ditch, execute all documents and do anything else required by Big Ditch to ensure Big Ditch has a perfected security interest in the Products.

27.6 The Customer must not agree to allow any person to register a financing statement over any of the Products without Big Ditch’s prior written consent.

27.7 The Customer must not allow the Products to become accessions to, or commingled with, other goods unless Big Ditch has first perfected any PMSI or SI that Big Ditch has in relation to those goods.

27.8 If Big Ditch perfects any PMSI or SI in relation to the Products, the Customer waives all rights to receive a notice.

27.9 The Customer irrevocably grants to Big Ditch the right to enter upon the Customer’s property or premises without notice, and without liability to the Customer or to any third party, if Big Ditch has cause to exercise any of its rights under the PPSA.

27.10 Nothing in sections 125, 132(3)(d), 142 and 143 of the PPSA applies to these Trading Terms.

27.11 To the full extent permitted by law, the Customer agrees that the following rights are excluded, being the right to:

(a) not have goods damaged, or be inconvenienced any more than necessarily incidental, if Big Ditch removes an accession under section 95;

(b) receive notice of any intention to remove an accession under section 95(1)(a);

(c) apply to the court for an order postponing the removal of an accession, or to determine the amount to be paid, under section 97;

(d) receive notice of a decision to enforce a security interest in personal property in the same way as a security interest in land;

(e) receive notice of the enforcement of liquid assets under section 121(4);

(f) receive notice of any proposal to dispose of collateral under section 130(1)(a);

(g) receive a statement of account if there is no disposal, under section 132(4);

(h) receive notice of any proposal to retain collateral under section 135(1)(a); and

(i) receive notice of a verification statement in relation to any registration event, including registration of a financing statement or a financing change statement.

28 Transactions and Credit Account

28.1 The Customer is liable for all transactions and expenses involving the Customer’s credit account.

28.2 The Customer is liable for any fraudulent use of the Customer’s credit account by a party known to the Customer.

29 Application of Moneys

29.1 If Big Ditch receives or recovers money in respect of a debt of the Customer, Big Ditch may apply that money in whatever order it chooses.

30 Set Off

30.1 Big Ditch may at any time set off amounts owed by Big Ditch to the Customer against amounts owed by the Customer to Big Ditch.

31 Withdrawal or Variation of Credit

31.1 Big Ditch may at any time, without the need to provide a reason, vary or withdraw any credit granted to the Customer.

31.2 Where the Customer completes a further Application for a Commercial Trading Account, that application supersedes any previous credit terms.

32 Suspension or Ceasing of Supply

32.1 Big Ditch may, at its discretion and without liability to the Customer, cease or suspend supply of Products and Services to the Customer.

32.2 Without limiting clause 32.1, if an Event of Default occurs, Big Ditch may, without prejudice to its other rights, suspend or cease supply.

32.3 This clause does not permit amendment of these Trading Terms, which may only be amended in accordance with clause 41.

33 Certification

33.1 A statement signed by an Officer certifying the amount of any moneys payable by the Customer, or identifying any Products or Services as being unpaid for, is, in the absence of manifest error, conclusive evidence of the amount owed.

34 Service of Notices

34.1 All notices or documents required to be given to Big Ditch for the purposes of the PPSA must be given in writing to Big Ditch.

34.2 Any notice or document required to be given by Big Ditch to the Customer, including a notice under clause 12 or clause 13, may be given by delivering it, or sending it by post or by email, to:

(a) the last address or email address for the Customer known to Big Ditch;

(b) if the Customer is a company, its registered office or principal place of business; or

(c) if the Customer trades under a registered business name, any address contained on a current business name registration.

35 Notification of Change of Details

35.1 The Customer must give written notice to Big Ditch of any change in the Customer’s structure or management, including any change of director, shareholder, partnership, trusteeship or address, within seven (7) days of the change.

36 Continuing Guarantee

36.1 All guarantees under or related to these Trading Terms are continuing guarantees and terminate only with Big Ditch’s written agreement.

37 Trusts

37.1 These Trading Terms bind the Customer both personally and as trustee of any trust of which the Customer is a trustee.

38 Joint and Several

38.1 If the Customer consists of more than one person, the obligations of each person are joint and several.

39 Assignment

39.1 The Customer may not assign any agreement under these Trading Terms without Big Ditch’s prior written consent.

40 Waiver

40.1 Any waiver by Big Ditch must be in writing signed by Big Ditch. Where Big Ditch waives its rights in respect of a particular matter, that waiver is not a waiver in respect of any other matter.

41 Amendments and Review

41.1 Once an Engagement has been entered into, these Trading Terms may only be amended by written agreement signed by Big Ditch.

41.2 Big Ditch may review and change these Trading Terms at any time by publishing the changed terms at www.bigditch.com.au.

41.3 A change published under clause 41.2 applies to Engagements entered into after the date of publication. It does not vary an Engagement already on foot, which continues to be governed by the Trading Terms in force when that Engagement was entered into, except as agreed under clause 41.1.

42 Severance

42.1 Each clause, sub-clause and part of these Trading Terms is separate and independent. If any clause, sub-clause or part is void or unenforceable, that does not affect the validity of the remaining provisions.

43 Entire Terms and Precedence

43.1 These Trading Terms, together with any Special Conditions annexed to a Quotation and any Credit Terms, contain the entire terms of the agreement between Big Ditch and the Customer, and are not affected or amended by any other express or implied term.

43.2 If there is any inconsistency, the order of precedence is: first, any Special Conditions annexed to the Quotation; second, these Trading Terms; and third, any Credit Terms.

43.3 No terms of the Customer apply to any agreement between the Customer and Big Ditch.

44 Expenses

44.1 The Customer must pay to Big Ditch any costs, charges and expenses, including stamp duty, legal fees and costs, and debt recovery expenses on a full indemnity basis, incurred by Big Ditch in relation to any breach by the Customer.

45 Definitions and Interpretation

45.1 In these Trading Terms, unless the context requires otherwise:

ACL means the Australian Consumer Law as contained in the Competition and Consumer Act 2010 (Cth), as amended from time to time.

Business Day means a day that is not a Saturday, a Sunday or a public holiday in Victoria.

Constrained Access has the meaning given in clause 15.3.

Consequential Loss means, without limitation, damage to any third party’s property, loss of profits, loss of revenue, economic loss, loss of goodwill and loss of opportunity.

Credit related information includes credit information, credit reporting information, credit eligibility information and credit information file as defined in the Privacy Act.

Credit Terms means the General Credit Terms attached to any Application for a Commercial Trading Account.

Customer means the customer whose details appear in the Application for a Commercial Trading Account, and any other customer of Big Ditch.

Engagement has the meaning given in clause 2.1.

Equipment means any equipment, tools, materials, resources or other items necessary to carry out the Works.

Event of Default means any of the following: the Customer fails to pay for any Products or Services; the Customer breaches these Trading Terms; the Customer ceases or threatens to cease carrying on business; where the Customer is a company, an order is made or a resolution is effectively passed for winding up under the Corporations Act 2001 (Cth); or where the Customer is a natural person, an order is made for the Customer’s bankruptcy or the Customer commits an act of bankruptcy.

Fuel Cost Variation Notice has the meaning given in clause 4.3.

GET means ground engaging tools and wear items, including cutting edges, bucket teeth, wear plates, ripper boots, shin guards, hammer bits and tips.

GST has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Heavy Salvage Costs has the meaning given in clause 14.2(a).

Job Docket means each job docket or tax invoice issued by Big Ditch in respect of the Works from time to time.

Minimum Hire Period means the minimum hire period described on the invoice, Quotation, authority to hire or any other document.

Officer means each director, secretary, credit manager and authorised representative of Big Ditch.

Premises means the site or location at which the Works are to be provided, as set out in the Job Docket or the Quotation.

Price means the amount payable by the Customer for the Works, determined in accordance with clause 3.

Privacy Act means the Privacy Act 1988 (Cth), as amended from time to time.

Products includes all products supplied by Big Ditch to the Customer, including earthworks and dam related materials.

Quotation means any written quotation, estimate or scope of works issued by Big Ditch to the Customer, together with any payment schedule and Special Conditions annexed to it.

Remobilisation Costs has the meaning given in clause 13.3.

Services includes all services supplied by Big Ditch to the Customer, including the Works.

Special Conditions means any conditions annexed to a Quotation by Big Ditch.

Subcontractor means any subcontractor engaged by Big Ditch for completion of the Works.

Taxable Supply has the meaning given in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Trading Terms means all the provisions of the Application for a Commercial Trading Account, including the Credit Terms, together with these Terms and Conditions of Trade.

Big Ditch means BDDC Pty Ltd trading as Big Ditch Aquatecture, and any related body corporate, subsidiary or associated entity, and any trustee of any trust.

Weather Stand Down Day has the meaning given in clauses 12.1 and 12.2.

Works means all earthmoving and heavy machinery services provided by Big Ditch to the Customer or its nominees.

45.2 A reference to a party includes that party’s executors, administrators, successors and permitted assigns.

45.3 Headings are for convenience only and do not affect interpretation.

45.4 A reference to a clause is a reference to a clause of these Terms and Conditions of Trade.

45.5 The singular includes the plural and the plural includes the singular.

45.6 Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.