1.           SUPPLY OF GOODS AND/OR SERVICES

1.1         In consideration of payment of the Price by Wilgee Civil, the Contractor must supply the Goods to Wilgee Civil and/or perform the Services for Wilgee Civil in accordance with the Purchase Order.

1.2         To the extent the Contractor’s terms and conditions are supplied with any quotation, email or other communication, or by reference to any web site, for the Goods or Services (including as printed on consignment notes or other documents), those terms and conditions will be of no legal effect and will not constitute part of the Purchase Order (even if any representative of Wilgee Civil signs those terms and conditions or annexes the terms and conditions to the Purchase Order).

1.3         The Contractor must, in supplying the Goods or performing the Services:

(a)         not unduly interfere with Wilgee Civil’ or the Client’s activities or the activities of any other person at the Delivery Address;

(b)         be aware of and comply with and ensure that the Contractor’s Personnel are aware of and comply with:

(i)           all applicable Laws;

(ii)          all Standards and Procedures; and

(iii)         all lawful directions and orders given by an authorised representative of Wilgee Civil, or any person authorised by Law to give directions to the Contractor;

(c)          ensure that the Contractor’s Personnel entering Wilgee Civil’ premises, the Client’s premises or the Site perform in a safe manner and are properly qualified for, and skilled in, the performance of their tasks and are of such character as not to prejudice:

(i)           safe working practices;

(ii)          safety and care of property; and

(iii)         continuity of work.

1.4         The Contractor will be responsible for providing Contractor Personnel with all necessary safety equipment and clothing. All Contractor Personnel are required to wear appropriate safety protection in accordance with the Standards and Procedures.

1.5         The Contractor must work co-operatively with other contractors at the Site and will use all reasonable endeavours to avoid any conflict between its activities and the activities of other contractors.

2.           DELIVERY

2.1         The Contractor must deliver the Goods to the Delivery Address.

2.2         The Contractor must ensure that the Goods are suitably packed to avoid damage in transit or in storage. Goods shall be packed in accordance with any applicable Laws.

2.3         Packages must be accompanied by a delivery note specifying the Purchase Order number, item number, destination, contents, quantity and date.

2.4         The Contractor must provide Wilgee Civil at its request with copies of all Deliverables, Proof of Delivery, plans, designs, drawings, specifications, reports, data, and other information relating to the provision of the Goods and/or Services.

2.5         If Wilgee Civil or any of CWilgee Civil’ Personnel signs a docket or other document required by the Contractor to acknowledge performance, acceptance or delivery of any Goods or Services, Wilgee Civil will not be taken to have accepted the Goods or Services as being in accordance with this Agreement (whether as to quality or quantity). This applies notwithstanding any terms and conditions appearing on any such docket or document.

3.           TIME FOR PERFORMANCE

3.1         The Contractor must complete the delivery of the Goods to the Delivery Address, or complete the performance of the Services, by the Date for Completion.

3.2         Unless otherwise expressly agreed in writing by Wilgee Civil, time shall be strictly of the essence in relation to performance of the Purchase Order by the Contractor.

4.           TITLE AND RISK

4.1         Title in Goods passes to Wilgee Civil upon the earlier of delivery of the Goods to Wilgee Civil (or its agent) and payment of the Price by Wilgee Civil.

4.2         Risk in the Goods passes to Wilgee Civil when the Goods are delivered to the Delivery Address.

4.3         Effective upon part payment prior to the delivery of the Goods to the Delivery Address, right title and interest in the Goods passes to Wilgee Civil pro rata as tenants in common.

4.4         The Contractor warrants that immediately prior to the delivery of the Goods, it has complete ownership of the Goods free from any Security Interest (other than any Security Interest created under this Agreement) and will provide the Goods to Wilgee Civil on that basis and Wilgee Civil will be entitled to clear, complete and quiet possession of the Goods.

4.5         Notwithstanding title in the Goods has or has not passed to Wilgee Civil, Wilgee Civil and the Contractor agree:

(a)         a part payment of the Goods gives rise to a Security Interest in the Goods; and

(b)         Wilgee Civil may register a Security Interest under the PPSA in respect of the Goods to be supplied and the Contractor agrees to do all things reasonably required at its cost to assist Wilgee Civil effect such registration and to exercise its rights in connection with the Security Interest.

4.6         Wilgee Civil need not give any notice under the PPSA (including notice of a verification statement) unless the notice is required by the PPSA to be given.

4.7         The Contractor must not:

(a)         create any security interest or lien over any of the Goods or property of Wilgee Civil (other than security interests in favour of Wilgee Civil);

(b)         give possession of the Goods or Wilgee Civil’ property to another person except where Wilgee Civil expressly authorises it to do so; or

(c)          permit any of the Goods or Wilgee Civil’ property to become an accession to or commingled with any asset that is not part of the Goods or Services being supplied under the Purchase Order.

4.8         Neither party may disclose information of the kind referred to in section 275(1) of the PPSA and this clause constitutes a confidentiality agreement within the meaning of s.275(6) of the PPSA. Each party 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 information of the kind referred to in section 275(1) of the PPSA.

5.           PRICE

5.1         Wilgee Civil must pay the Contractor the Price for the Goods and/or Services.

5.2         The Price is inclusive of all costs incurred by the Contractor in the supply of the Goods and/or performance of the Services including all charges for packing, insurance and delivery of the Goods and the cost of any items used or supplied in the performance of the Services.

5.3         The Price cannot be varied unless agreed by the parties in writing.

5.4         The Price is inclusive of all taxes and duties, except GST.

6.           GST

6.1         If GST is imposed on any supply made by the Contractor under or in connection with the Purchase Order, the Contractor may recover from Wilgee Civil, in addition to the Price, an amount equal to the GST payable in respect of that Supply.

6.2         The Contractor must first provide Wilgee Civil with a valid tax invoice before Wilgee Civil will pay the GST amount to the Contractor.

7.           INVOICING

7.1         Upon delivery of the Goods and/or completion of the Services, the Contractor must provide to Wilgee Civil a valid tax invoice which must include the information set out in clause 7.2.

7.2         The Contractor’s tax invoice must include the following details:

(a)         a reference to the Purchase Order and the relevant contract (if any) including the line item numbers on the Purchase Order and the contract number;

(b)         a detailed description of the delivered Goods or performed Services, including the date of delivery and/or period of Services in respect of which the invoice relates and the relevant quantity;

(c)          the Price relating to the Goods and/or Services, broken down to reflect the same Price components on the Purchase Order; and

(d)         the amount of any applicable GST;

7.3         Where the Price is calculated on a ‘cost plus’, ‘schedule of rates’ or ‘per day’ basis, Wilgee Civil may audit the Contractor’s records to determine if the Price has been correctly calculated. This right of Wilgee Civil to audit continues for twelve (12) months after the date of the relevant invoice.

7.4         Wilgee Civil will pay all tax invoices that comply with clause 7.2:

(a)         within the time period for payment nominated in the Purchase Order; or

(b)         if no time period is specified in the Purchase Order, [thirty (30) days] from the end of the month in which the Contractor’s invoice is received; or

(c)          Wilgee Civil may withhold payment of the disputed amount pending resolution of the dispute; and

(d)         if the resolution of the dispute determines that Wilgee Civil must pay an amount to the Contractor, Wilgee Civil must pay that amount upon resolution of that dispute.

7.5         Wilgee Civil may reduce any payment due to the Contractor under this Agreement by any amount which the Contractor must pay Wilgee Civil, including costs, charges, damages and expenses and any debts owed by the Contractor to Wilgee Civil on any account whatsoever. This does not limit Wilgee Civil’s right to recover those amounts in other ways.

8.           QUALITY

8.1         The Goods and/or Services must match the description referred to in the Purchase Order.

8.2         If the Contractor gave Wilgee Civil a sample of the Goods or a demonstration of the Services, the Goods and/or Services must be of the same nature and quality as the sample or demonstration given.

8.3         The Goods and/or Services must be fit for the purpose for which goods and/or services of the same kind are commonly supplied or bought and for any other purpose Wilgee Civil expressly specifies in the Purchase Order.

8.4         The Goods must be of acceptable quality, safe and free from defects, acceptable in appearance and finish, do all things that the Goods are ordinarily used for, and unless otherwise specified in the Purchase Order, must be new.

9.           WARRANTY PERIOD

9.1         If, during the Warranty Period, any of the Goods or Services are found to be Defective, Wilgee Civil may:

(a)         require the Contractor to repair or replace the Defective Goods in which case the Contractor must reimburse Wilgee Civil for any loss or damage incurred by Wilgee Civil in connection with the Defective Goods;

(b)         reject the Defective Goods and require the Contractor to reimburse Wilgee Civil the Price paid or payable on account of the Defective Goods in addition to any other loss or damage incurred by Wilgee Civil in connection with the Defective Goods;

(c)          reject the Defective Services and require the Contractor to re-perform the Defective Services or reimburse Wilgee Civil the Price paid or payable on account of the Defective Services in addition to any other loss or damage incurred by Wilgee Civil in connection with the Defective Services;

(d)          repair or make good the Defective Goods itself; and/or

(e)          re-perform or make good the Defective Services itself.

9.2         The Contractor must:

(a)         repair or replace the Defective Goods;

(b)         re-perform or make good the Defective Services,

at the Contractor’s cost, if requested to do so by Wilgee Civil and within the timeframe considered reasonable by Wilgee Civil, or

(c)          reimburse Wilgee Civil for any direct expenses incurred in Wilgee Civil repairing, re-performing, or making good (as the case may be) any Defective Goods or Services should:

(i)           Wilgee Civil elect to repair, re-perform, or make good (as the case may be) the Defective Goods or Services under clause 9.1; or

(ii)          the Contractor decline or fail in its obligations to do so under clause 9.2(a) or 9.2(b) within a timeframe considered reasonable by Wilgee Civil as notified to the Contractor by Wilgee Civil.

9.3         If Wilgee Civil requests the Contractor to repair or replace any Defective Goods that have been incorporated into larger equipment or facilities, the Contractor must reimburse Wilgee Civil for any direct expense incurred by Wilgee Civil in removing the Defective Goods from such larger equipment or facilities and re-installing any repaired or replacement Goods into the larger equipment or facilities.

9.4         The provisions relating to any warranty or Defective Goods and/or Services specified under this Agreement shall be in addition to and shall not limit any conditions or warranties expressed or implied by statute or common law. The Contractor’s liability under this Agreement shall be in addition to any condition or warranty in Wilgee Civil’s favour implied by statute or common law as to the quality or the fitness for any particular purpose of the Goods and / or Services and each part thereof.

10.         CONFIDENTIALITY

10.1       The Contractor must not, and must ensure that its subcontractors do not, divulge to third parties any information provided by Wilgee Civil or otherwise obtained by the Contractor relating to the Goods and/or Services (including any intellectual property), Wilgee Civil or the supply to Wilgee Civil by the Contractor, unless and until such information is within the public domain (other than by a breach of this clause) or express written consent has been given by Wilgee Civil.

10.2       The Contractor shall indemnify Wilgee Civil and keep Wilgee Civil indemnified from and against all liabilities, losses, damages, actions, suits, proceedings, claims, costs (including legal costs) and expenses arising from any breach of this clause 10 by the Contractor whatsoever.

11.         INTELLECTUAL PROPERTY

11.1       The specifications, drawings, technical instructions, or any other documentation whatsoever issued to the Contractor by Wilgee Civil during tendering and at the time of establishing this Agreement will remain the exclusive property of Wilgee Civil and are to be kept strictly confidential.

11.2       The Contractor warrants that:

(a)         the Goods supplied and/or Services performed by the Contractor and the license granted by it to Wilgee Civil do not infringe any intellectual property rights of any third party; and

(b)         the Goods supplied and/or Services performed are not subject to any intellectual property rights of any third party that in any way restrict the rights of Wilgee Civil or its clients to use or sell the same.

11.3       The Contractor agrees that title in all (present and future) intellectual property created, discovered, or coming into existence as a result of, for the purposes of or in connection with the supply of the Goods and/or performance of the Services under the Purchase Order shall vest exclusively in Wilgee Civil upon its creation.

11.4       Wilgee Civil acknowledges that the Contractor remains the owner of all intellectual property created, discovered, or coming into existence other than as a result of, for the purposes of or in connection with the supply of the Goods and/or performance of the Services under the Purchase Order (Contractor IP).

11.5       The Contractor grants Wilgee Civil a non-exclusive, transferrable, irrevocable, perpetual, royalty free license to use all Contractor IP to the extent necessary to enable Wilgee Civil to exercise its rights in Wilgee Civil IP under the Purchase Order.

12.         INDEMNITY

12.1       The Contractor will indemnify Wilgee Civil, Wilgee Civil’s Personnel and the Client will keep Wilgee Civil, Wilgee Civil’s Personnel and the Client indemnified from and against all Claims, including without limitation injury to (including illness or disability), or death of, any person and loss of, damage to or destruction of or loss of use of any property (including property of Wilgee Civil, Wilgee Civil’s Personnel or the Client) caused or contributed to by an act or omission of the Contractor or the Contractor’s Personnel or by any breach of this Agreement by the Contractor (including any breach of a warranty), except to the extent and in the proportion that such Claim has been caused or contributed to by the willful default or unlawful or negligent act or omission of Wilgee Civil.

12.2       Without prejudice to the obligation on the Contractor to maintain the insurance set out in clause 15, the Contractor shall be solely liable for and indemnify and keep indemnified Wilgee Civil, Wilgee Civil’s Personnel and the Client against any Claims which may be brought against Wilgee Civil, Wilgee Civil’s Personnel or the Client by any:

(a)         employee of the Contractor;

(b)         subcontractor engaged by the Contractor; or

(c)          employee of a subcontractor engaged by the Contractor.

in relation to their employment with or engagement by the Contractor or incurred by Wilgee Civil in connection with the Services, except to the extent and the proportion that such Claim has been caused or contributed to by the willful default or unlawful or negligent act or omission of Wilgee Civil.

12.3       In determining the rights, obligations and liabilities of the parties in any Claim under this Agreement, the operation of Part 1F of the Civil Liability Act 2002 (WA) which would otherwise be applicable is expressly excluded to the maximum extent permitted by Law.

13.         FORCE MAJEURE

13.1       The parties agree that:

(a)         a party will not be liable for any delay or failure to perform any of its obligations under the Purchase Order (other than an obligation to pay money) if as soon as possible after the beginning of the Force Majeure affecting the ability of the party to perform any of its obligations under the Purchase Order, it gives a notice to the other party that complies with clause 13.2.; and

(b)         the Purchase Order will suspend in the event and for the period of the Force Majeure, provided that each parties’ respective obligations contained in this clause 13 are complied with.

13.2       A notice given under clause 13.1 must:

(a)         specify the obligations the party cannot perform;

(b)         fully describe the Force Majeure;

(c)          estimate the time during which the Force Majeure will continue; and

(d)         specify the measures proposed to be adopted to remedy or abate the Force Majeure.

13.3       Any amendment to the Date for Completion is the Contractor’s sole remedy for any delays resulting from Force Majeure where the Contractor is the affected party and the Contractor is not entitled to any increase in the Price or any damages, costs, or expenses in connection with the Force Majeure.

14.         Breach and termination

14.1       Wilgee Civil may terminate the Purchase Order:

(a)         in its absolute discretion by giving the Contractor thirty (30) days written notice; or

(b)         in the event the Contractor defaults on any of the terms of the Purchase Order for any reason (including insolvency) by written notice:

(i)           where the default is not capable of remedy, with immediate effect; or

(ii)          where the default is capable of remedy, but the Contractor fails to remedy such default within ten (10) days of the date of a written notice from Wilgee Civil.

14.2       In the event that Wilgee Civil terminates the Purchase Order then subject to any other rights of Wilgee Civil under this Agreement Wilgee Civil must:

(a)         pay for the Goods delivered or Services provided by the Contractor in accordance with the Purchase Order prior to the date of termination;

(b)         reimburse the Contractor for the direct costs of materials the Contractor reasonably ordered prior to the date of receipt of the notice of termination for the purpose of providing the Goods and or performing the Services and which the Contractor is legally liable to accept and cannot otherwise utilise, but only if the materials are delivered to the Delivery Address and become Wilgee Civil’s property upon payment; and

(c)          reimburse the Contractor for any other direct costs that the Contractor actually and reasonably incurred prior to the date of receipt of the notice of termination in the expectation of providing the Goods and or performing the Services, and which costs were not included in any previous payment by Wilgee Civil,

and the Contractor shall not otherwise be entitled to any compensation whether by way of damages, profit, loss or expense, including without limitation anticipated profits, incurred as a result of a termination of the Purchase Order under this clause.

14.3       Notwithstanding any other clause of this Agreement, if Wilgee Civil terminates the Purchase Order pursuant to clause 14.1(b) the provisions of clauses 14.2(b) and 14.2(c) shall not apply.

14.4       Clauses 10, 11, 12 15.1(b), 16 and 17 shall survive termination or determination of a Purchase Order or this Agreement.

15.         INSURANCES

15.1       The Contractor must at all times during the performance of the Purchase Order effect and maintain the following insurances:

(a)         Public liability insurance for at least $20 million for any one event and unlimited in the aggregate and products liability insurance for at least $20 million for any one event and in the aggregate, which shall contain a principal’s indemnity extension in favour of Wilgee Civil for liability to any third party arising out of the performance of the Purchase Order by the Contractor;

(b)         workers’ compensation insurance as required by law which shall contain (except where precluded by law) a principal’s indemnity extension for both statutory liability and common law liability in favour of Wilgee Civil and its respective officers and employees and shall further contain a waiver of subrogation in favour of Wilgee Civil and its respective officers and employees.

15.2       If directed to do so by Wilgee Civil, the Contractor shall provide copies of certificates of currency of the above insurances.

16.         LIMITATION OF LIABILITY

16.1       Despite any other provision of these Standard Terms and Conditions of Purchase but subject to clauses 16.2 and 16.3, and to the maximum extent permitted by Law, a party’s overall liability to the other party in respect of a particular Purchase Order for liability:

(a)         under, or arising out of, or in connection with this Agreement (in respect of that Purchase Order); or

(b)         otherwise at law or in equity including:

(i)           by statute to the extent permitted by Law;

(ii)          in tort for negligence or otherwise;

(iii)         on any other basis whatsoever,

shall not exceed 100% of the Price specified in that Purchase Order.

16.2       Notwithstanding any other clause of this Agreement but subject always to clause 16.3 neither party shall be in any way liable to the other party, including by way of indemnity, for Consequential Loss.

16.3       The limitation of liability referred to in clause 16.1 and 16.2 does not apply to the Contractor’s liability for:

(a)         loss caused or contributed to by the Contractor or the Contractor’s Personnel that is:

(i)           covered by a policy of insurance under which the Contractor is an insured and which it is required to effect under this Agreement; or

(ii)          which, but for an act or omission of the Contractor (including in respect of its disclosure obligations to any insurer), would have been covered by a policy of insurance which the Contractor is required to effect under this Agreement.

(b)         loss arising from or in connection with the death of or personal injury to any person, or loss or damage to any property, caused or contributed to by the Contractor or the Contractor’s Personnel;

(c)          loss arising from or in connection with the breach of any applicable Law, the deliberate default, the reckless or the willful misconduct by the Contractor or the Contractor’s Personnel or by any person for whose acts or omissions the Contractor is vicariously liable;

(d)         loss arising from or in connection with conduct of the Contractor which is repudiatory of the Agreement as a whole;

(e)         all costs associated with the Contractor repairing or replacing Defective Goods or re-performing Defective Services and costs incurred by Wilgee Civil or the

Contractor in connection with removing Defective Goods from larger equipment or facilities, re-installing any repaired or replacement Goods into the larger equipment or facilities pursuant to clause 9.3 and transport of such goods;

(f)          loss arising from or in connection with liability which, by Law, the Contractor cannot contract out of; or

(g)         loss arising from or in connection with a breach of confidentiality or infringement of any intellectual property rights, or in relation to the indemnities in clause 12.2.

17.         DISPUTE RESOLUTION AND GOVERNING LAW

17.1       The parties agree that all disputes relating to or arising out of this Agreement must be resolved in accordance with the following:

(a)         if a dispute arises then either party may give notice to the other party of the dispute that must:

(i)           be in writing;

(ii)          state that it is a notice under this clause 17.1; and

(iii)         include or be accompanied by reasonable particulars of the dispute;

(b)         if a notice is given under clause 17.1(a), then a senior management representative or equivalent of each of the parties (who must be capable of binding each party) must meet at least once within ten (10) Business Days of receipt of the notice under clause 17.1(a) (or such other time as the parties may agree) and use reasonable endeavours acting in good faith to resolve the dispute; and

(c)          if the dispute is not resolved by the senior management representatives within the period referred to in clause 17.1(b), either party may commence proceedings for the resolution of the dispute.

17.2       Notwithstanding the existence of a dispute, each party must continue to perform its obligations under this Agreement.

17.3       Notwithstanding any other provision of this Agreement, Wilgee Civil may commence proceedings in relation to any dispute at any time where it seeks urgent interlocutory relief.

17.4       This Agreement is governed by the law in force in the State of Western Australia.

18.         DEFINITIONS

Agreement means this agreement, comprising:

(a)         the Purchase Order;

(b)         these Standard Terms and Conditions of Purchase;

(c)          the Annexure to these Standard Terms and Conditions of Purchase (if any); and

(d)         any attachments or annexure specifically referred to in the Purchase Order (if any).

Authority means any government or local authority, any department, minister or agency of government, or any other authority, agency, commission, or similar entity having powers or jurisdiction under any law or regulation or the listing rules of any recognised securities exchange.

Business Day means any day which is not a Saturday, Sunday or public holiday in Perth, Western Australia.

Wilgee Civil’ Personnel means Wilgee Civil’ directors, officers, employees, agents, and contractors.

Claim means any claim, notice, demand, suit, account, action, proceeding, arbitration, litigation (including reasonable legal costs), investigation or judgment of any nature, absolute or contingent, liquidated or unliquidated, whether known or unknown, whether directly or indirectly, or whether in Law, contract, tort, negligence, statute (including strict liability) or any claim for any liability, damages, losses, costs, expenses, expenditure, charge, compensation, payment, remedy, debt, lien, relief or payment, or relief from any obligation under the Agreement.

Client means any client of Wilgee Civil to whom Wilgee Civil is contracted to provide goods and services which include the Goods and Services.

Wilgee Civil’ Personnel means Wilgee Civil’s officers, employees, agents, and contractors (other than the Contractor).

Consequential Loss means:

(a)      loss of profits and revenue or anticipated profit and revenue;

(b)      loss of goodwill; and

(c)      loss of production.

Contractor means the party identified as the supplier of goods and/or services in the Purchase Order.

Contractor’s Personnel means the Contractor’s directors, officers, employees, agents, and contractors.

Defective means Goods and/or Services (or any aspect of them) which are not in accordance with this Agreement and the Purchase Order, or which are damaged, deficient, faulty, inadequate, or incomplete.

Deliverables means those documents, information stored electronically or by other means and materials created under this Agreement and to be handed over to Wilgee Civil.

Delivery Address means the place for delivery specified on the Purchase Order.

Date for Completion means the date specified on the Purchase Order by which the Goods are to be delivered to the Delivery Address or the Services are to be completed.

Force Majeure means any event or circumstance (or combination of events and circumstances) which:

(a)      is beyond the control of the party affected by that event or circumstance or both which could not reasonably have been foreseen at the time of entering into this Agreement and which could not reasonably have been provided against or prevented by the party affected including but not limited to an act of God, war declared or undeclared, blockage, revolution, riot, insurrection, civil commotion, sabotage, lightning, fire, earthquake, storm or flood on the Site, plague and explosion, governmental or governmental agency restraint, expropriation, prohibition, intervention or embargo;

(b)      causes delay in, or prevention of, the performance by the affected party of any of its obligations under the Agreement; and

(c)      cannot be prevented, overcome, or remedied by the exercise by the affected party of a standard of care and diligence consistent with that of a prudent and competent company,

including a strike or industrial dispute which:

(d)      has national or state-wide application and is not confined to the Contractor’s workforce;

(e)      affects the execution of the Services at the Site or the supply of the Goods; and

(f)       lasts for more than seven (7) consecutive days, but does not include:

(g)      other industrial-related disputes including strikes, lockouts, industrial difficulties, labour difficulties, work bans, blockades or picketing;

(h)      wet or otherwise inclement weather not connected to a named cyclone;

(i)        lack of or inability to use funds for any reason;

(j)        any occurrence which results from the wrongful act or wrongful omission of the affected party or the failure by the affected party to act in a prudent and proper manner and in accordance with good and accepted industry practices;

(k)      any failure by the affected party to reach agreement with any third party necessary to enable the affected party to perform its obligations under this Agreement;

(l)        an event or circumstance, where the event or circumstance or its effects on the affected party or the resulting inability of the affected party to perform its obligations could have been prevented, overcome or remedied by the exercise by the affected party of the standard of care and diligence consistent with that of a reasonable and prudent operator; or

(m)     breakdown of any plant or equipment.

Goods means the goods, if any, described on the Purchase Order.

GST has the meaning given to that term under the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Law means:

(a)         Commonwealth, State and local government legislation including regulations, by-laws, orders, awards and proclamations;

(b)         common law and equity;

(c)          Authority requirements and consents, certificates, licenses, permits and approvals (including conditions in respect of those consents, certificates, licenses, permits and approvals); and

(d)         guidelines of Authorities with which the Contractor is legally required to comply.

PPSA means the Personal Property Securities Act 2009

(Cth).

Purchase Order means the purchase order for Goods and/or Services issued by Wilgee Civil to the Contractor from time to time containing, amongst other things, a description of the Goods and/or Services.

Price means the price set out in the Purchase Order which is exclusive of GST but is inclusive of all other costs and charges.

Proof of Delivery means:

(a)         in respect of Goods, a delivery document which evidences the delivery of the Goods and includes as a minimum, the Purchase Order number, the freight provider’s details, the packing list, name, and signature of the recipient; or

(b)         in respect of Services, a time sheet, service log or such other document which evidences the performance of the Services.

Security Interest has the meaning given to it in the PPSA.

Services means the services, if any, described on the Purchase Order.

Site means the site or location set out in the Purchase Order.

Standards and Procedures means all policies, procedures, guidelines, rules, requirements or Site-specific conditions which Wilgee Civil makes available to the Contractor from time to time.

Warranty Period means the period of [eighteen (18) months] commencing on the date of delivery of the Goods and/or [twelve (12)] months from the date on which the Service is performed.

The following additional clauses 19 to 30 apply to the Hire of Equipment

To the extent of any inconsistency between the previous clauses of these Standard Terms and Conditions of Purchase and these additional clauses for the Hire of Equipment, these additional clauses shall prevail.

19.         ADDITIONAL DEFINITIONS

Collection Location means that location nominated by the Contractor as that where the Equipment is located prior to the Commencement Date.

Commencement Date means the date specified by Wilgee Civil as the date from which the Hire shall commence.

End Date means the date specified on the Purchase Order by Wilgee Civil as the date on which the Hire shall terminate.

Equipment means Goods provided to Wilgee Civil for Hire in accordance with these terms and conditions and which shall be used or operated exclusively by Wilgee Civil.

Hire means the hire of any Equipment on the terms of this Agreement and includes any variations to such hire as well as all services, responsibilities and functions not specifically described in this Agreement but which are incidental to or otherwise necessary for the Contractor to provide the hire under this Agreement.

Hire Rates means the rates payable by Wilgee Civil during the Term for the Hire of the Equipment as specified in the Purchase Order.

Major Servicing has the meaning given to it in clause 25.4.

Minor Servicing means any daily servicing, scheduled maintenance and (at Wilgee Civil’s sole discretion) minor running repairs required to ensure the Equipment remains in good repair and condition during the Term between any Major Servicing.

Term means the period of Hire that commences on the Commencement Date and terminates on the End Date unless extended in writing by Wilgee Civil at its absolute discretion.

20.         HIRE AND ACCESS

20.1       Wilgee Civil upon reasonable notice must grant the Contractor access (or procure that the Contractor is granted access) for the purpose of inspection, servicing or, following termination or expiry of the Agreement, repossessing the Equipment.

20.2       The Contractor must promptly notify Wilgee Civil if it becomes aware of any circumstances or event beyond its control that may delay the Commencement Date or the availability of the Equipment at the Collection Location on the Commencement Date.

20.3       The Contractor warrants that it has the right to Hire the Equipment to Wilgee Civil in accordance with this Agreement.

21.         RISK

21.1       Risk in the Equipment passes to Wilgee Civil:

(a)         if the Purchase Order provides that Wilgee Civil shall collect the Equipment, at the time Wilgee Civil removes the Equipment from the Collection Location; or

(b)         if the Purchase Order provides that the Contractor shall deliver the Equipment to the Site, at the time the Equipment is delivered and accepted by Wilgee Civil on the Site,

21.2       Risk in the Equipment shall revert to the Contractor:

(a)         if the Purchase Order provides that Wilgee Civil shall return the Equipment, at the time the Equipment is returned to the Collection Location by Wilgee Civil; or

(b)         if the Purchase Order provides that the Contractor shall collect the Equipment from the Site, the time the Contractor arrives on Site to collect the Equipment.

22.         TITLE AND OWNERSHIP

Notwithstanding the possession and use of the Equipment by Wilgee Civil, the Equipment shall at all times remain the property of Contractor, and nothing contained in this Agreement will confer on Wilgee Civil any right or property or security interest in the Equipment other than the rights specified in this Agreement or by law as hirer of the Equipment.

23.         RATES AND CHARGES

23.1       Wilgee Civil must pay the Contractor the Hire Rates in accordance with this clause 23.

23.2       The Contractor acknowledges and agrees that the Hire Rate:

(a)         includes the cost of all labour, plant, equipment, tools, appliances or other property and items used by the Contractor in the provision of the Hire and in the performance of this Agreement;

(b)         includes all costs, expenses, fees, and charges incurred by the Contractor in providing the Hire and performing all of the Contractor’s obligations under this Agreement;

(c)          includes the Contractor’s profits, overheads and supervision relating to the provision of the Hire and performance of the Contractor’s obligations under this Agreement;

(d)         will not be subject to any rise and fall or any adjustment for any reason; and

(e)         includes any other costs incurred by the Contractor in providing the Equipment for Hire and the performance of this Agreement.

24.         EQUIPMENT CONDITION

24.1       Equipment Manuals

(a)         The Contractor must provide Wilgee Civil with all relevant information and records to enable the safe and proper use of the Equipment by Wilgee Civil including without limitation all operating procedures, manuals, risk assessments and manufacturer’s

instructions required for the safe operation and maintenance of the Equipment (Safety Information).

(b)         If any Safety Information has not been provided by the Contractor to Wilgee Civil because such information is not in the possession of, or available to, the Contractor, then Wilgee Civil may elect (at its absolute discretion) to take delivery of the Equipment without the Safety Information or terminate the Purchase Order with immediate effect.

24.2       Condition of the Equipment

(a)         The Contractor must ensure that at the time of collection of the Equipment by Wilgee Civil from the Collection Location or the time of delivery of the Equipment by the Contractor to the Site (as applicable), the Equipment:

(i)           is as described in the Purchase Order;

(ii)          is fit for the purpose for which such Equipment is ordinarily used, safe to use (including without limitation mechanically, electrically, hydraulically and structurally safe), in good repair and operating condition;

(iii)         is clean and undamaged;

(iv)         has been properly serviced and maintained in accordance with good industry practice and manufacturer’s recommendations;

(v)          as designed, manufactured, and supplied complies with all laws and applicable codes and standards;

(vi)         is complete in all respects and includes everything necessary to operate properly in accordance with any relevant manufacturer’s specifications or other applicable standards; and

(vii)        is free from any charges or encumbrances which could prevent or affect its use by Wilgee Civil in accordance with the terms of this Agreement.

24.3       Pre-Delivery / Return Inspection

(a)         Prior to Wilgee Civil collecting the Equipment from the Collection Location or the Contractor delivering of the Equipment to the Site, the parties must undertake a joint inspection of the Equipment (Pre-delivery Inspection) at a time agreed by the parties (acting reasonably) and a written report that records the condition of the Equipment shall be created and signed by each party (Pre-delivery Inspection Report).

(b)         If the Pre-delivery Inspection discloses that the condition of the Equipment does not, in the reasonable opinion of Wilgee Civil, comply with the requirements of this Agreement, Wilgee Civil may elect not to take delivery of the Equipment and no charges (by way of Hire Rates or otherwise) shall be payable by Wilgee Civil and the Purchase Order will automatically terminate.

(c)          At the time Wilgee Civil returns the Equipment to the Collection Location, or the Contractor collects the Equipment from the Site, the parties must undertake a joint inspection of the Equipment (Return Inspection).

(d)         If the Return Inspection discloses that the Equipment is not in the same condition as that evidenced in the Pre-delivery Inspection Report (fair wear and tear and any other exceptions noted in the Purchase Order excepted), then the Contractor may invoice Wilgee Civil for the reasonable direct costs actually incurred by the Contractor in effecting repairs to the Equipment solely to the extent necessary of returning it to that evidenced in the Pre-delivery Inspection Report (fair wear and tear and any other exceptions noted in the Purchase Order excepted) and Wilgee Civil shall not be liable for any other costs whatsoever and howsoever arising.

25.         REPAIR, MAINTENANCE & SERVICING

25.1       Unless otherwise specified in the Purchaser Order, the Contractor will be responsible for carrying out all Minor Servicing of the Equipment, including the cost of all parts and labour.

25.2       If Wilgee Civil is responsible for the Minor Servicing of the Equipment, Wilgee Civil will during the Term and at its own cost and expense carry out the Minor Servicing of the Equipment in accordance with the any agreed maintenance program, and in the absence of an agreed program, in accordance with good industry practice.

25.3       If the Contractor is responsible for the Minor Servicing of the Equipment, the Contractor will at all times and at its own cost and expense carry out the Minor Servicing of the Equipment so as to keep the Equipment in good condition and working order as evidenced by the Pre-delivery Inspection Report (fair wear and tear and any other exceptions in the Purchase Order excepted).

25.4       The Contractor must promptly carry out the following (Major Servicing):

(a)         all maintenance and servicing that is not Minor Servicing; and

(b)         replacement of major components,

required to keep the Equipment in good condition and working order for the duration of the Term.

25.5       The Contractor must allow Wilgee Civil to inspect any maintenance and servicing records, logbooks or other documents evidencing the condition and servicing of the Equipment.

25.6       Breakdown of Equipment

(a)         Unless caused by any wrongful act or omission of Wilgee Civil, if the Equipment is damaged or rendered non-operational or cannot be used or operated for its intended purpose, Wilgee Civil may elect to give a written notice to the Contractor:

(i)           requiring the Contractor to repair the Equipment in which case the Contractor must immediately and at its own cost repair the Equipment and provide Wilgee Civil with temporary replacement equipment which complies with the requirements of this Agreement until such time that the Equipment is repaired and fully complies with the requirements of this Agreement;

(ii)          requiring the Contractor to supply replacement equipment (provided the Contractor is capable of supplying such replacement equipment) that is at least capable of satisfying the requirements of this Agreement in which case the Contractor must supply the replacement equipment at its cost as soon as practicable and Wilgee Civil shall continue to pay to the Contractor the Hire Rate; or

(iii)         terminating the Purchase Order with immediate effect in which case the Contractor must arrange for the prompt collection of the Equipment from the Site at its cost.

(b)         Notwithstanding any other provision of this Agreement, Wilgee Civil is not obliged to pay any Hire Rates for the period from the time the Equipment is damaged or becomes non-operational (unless caused by any wrongful act or omission of Wilgee Civil) until the Equipment has been repaired or replaced and is operational and available on the Site and ready for use by Wilgee Civil.

26.         OTHER OBLIGATIONS OF Wilgee Civil

26.1       Wilgee Civil must:

(a)         unless the Purchase Order provides that the Contractor must arrange for the delivery or return (as the case may be) of the Equipment to or from the Site, arrange for collection or delivery of the Equipment from or to the Collection Location at Wilgee Civil’s expense; and

(b)         notify the Contractor immediately of the full circumstances of any mechanical breakdown or accident involving the Equipment (including an accident resulting in injury to any person or damage to property or environment).

26.2       When the Equipment is no longer required, Wilgee Civil shall give a notice in writing to the Contractor stating that the Equipment is no longer required (Off-Hire Notice). The period of Hire will be deemed terminated on the date of the Off-Hire Notice (Off-Hire Date) notwithstanding the hire End Date. Unless the Purchase Order provides that the Contractor must arrange for collection of the Equipment from the Site, Wilgee Civil must return the Equipment to the Collection Location within seven (7) days of the Off-Hire Date. If Wilgee Civil fails to return the Equipment to the Collection Location within seven (7) days of the Off-Hire Date, Wilgee Civil may be liable to the Contractor for an amount (being an agreed percentage of the applicable daily Hire Rates if specified in the Purchase Order), for each day after the date that is seven (7) days after the Off-Hire Date, up to and including the date of return of the Equipment.

26.3       Wilgee Civil must not, without the prior written consent of the Contractor:

(a)         alter or dismantle or make any additions to the Equipment including defacing or erasing any identifying mark, plate, or number on or in the Equipment or in any other manner interfere with the Equipment;

(b)         fix any of the Equipment in such a manner as to make it legally a fixture forming part of any freehold property;

(c)          use the Equipment other than in the ordinary course of its business;

(d)         assign, dispose of, or permit any person to acquire, any of the Contractor’s rights or interest under this Agreement or in respect of the Equipment; or

(e)         sell, transfer, assign, sub-lease or otherwise dispose of the Equipment or permit the Equipment to be temporarily or permanently removed from the Site other than for the purposes of repair or servicing in accordance with this Agreement.

27.         INSURANCE & DAMAGE WAIVER

27.1       [Without affecting the Contractor’s obligation to obtain the insurances specified in clause 15, Wilgee Civil must maintain with a reputable insurer:

(a)         an insurance policy covering the full replacement value of the Equipment in the event or total or partial loss or theft; and

(b)         public liability insurance in the amount of not less than $20 million for each occurrence and unlimited in the aggregate arising out of the use of the Equipment.]

27.2       Wilgee Civil shall not be liable for any insurance excess payments or damage waiver fees (or similar) unless such has been agreed to in writing by an authorised representative of Wilgee Civil and is listed on the Purchase Order.

28.         LOST OR DAMAGED EQUIPMENT

28.1       If any items of the Equipment are lost, damaged beyond reasonable repair or destroyed for any reason including as a result of any negligent or otherwise wrongful act or omission of Wilgee Civil during the Term, Wilgee Civil’s liability to the Contractor is limited in all circumstances to:

(a)          the reasonable direct costs actually incurred by the Contractor replacing the relevant item of Equipment with equipment of the same or similar nature, age and condition; or

(b)          at Wilgee Civil’s sole discretion, Wilgee Civil’s replacement of the relevant item of Equipment with equipment of the same or similar nature, age and condition; and

(c)          subject always to Wilgee Civil’ limitation of liability in clause 16.

and the Contractor hereby releases and holds harmless Wilgee Civil from all other loss howsoever arising. For the sake of clarity, Wilgee Civil shall not be liable to the Contractor for any loss or damage to the Equipment to the extent and the proportion such loss or damage is caused or contributed to by an act or omission of the Contractor.

29.         PERMITS AND LICENCES

29.1       The costs of any Equipment licensing such as road registration or similar which is required shall be the responsibility of the Contractor. Should any inspections be required pursuant to any licensing requirements as defined under this clause, Wilgee Civil shall upon reasonable notice make the Equipment available for such inspections.

29.2       Subject to clause 29.1, Wilgee Civil shall obtain and bear the costs of any permits and/or licenses required by law or any Authority in connection with the use and operation of the Equipment at the Site.