STANDING ORDER FOR WORKS, SERVICES OR GOODS

Transcription

1 CONDITIONS OF CONTRACT 1. Work Orders (a) (Issue of Work Orders) The parties agree at any time throughout the Standing Order Period, SunWater may issue to the Contractor Work Orders requiring the Contractor to provide a Supply (of the nature and type set out in the Standing Order Supply Description referred to in the Contract Particulars) described in the Work Order. (Form of Work Orders) Each Work Order shall: be in a form determined by SunWater which may, in SunWater's absolute discretion, be in the form of the Work Order in Appendix 1; specify the Supply (including quantity and price) (which may be any items within the Standing Order Supply Description referred to in the Contract Particulars as nominated by SunWater); specify any of the following particulars, (which may be nominated by SunWater from the Work Order Particulars Options in Part B of the Contract Particulars): Security; Insurance; (C) Contractor Management Plans; (D) Site; (E) Pre-Completion Documents; (F) Principal Contractor appointment; (G) Time for Payment Claims; (H) Commencement Date; (I) Date for Completion or Supply Period; (J) Defects Liability Period; (K) Rate of Liquidated Damages; (L) excluded working times; (M) Commencement Preconditions; and (N) Completion Preconditions. (c) (Terminology) For the purposes of a Work Order, the terms referred to in subparagraph will have the meaning nominated by SunWater in the relevant Work Order in accordance with subparagraph. (d) (SunWater's Discretion) Matters nominated for determination by SunWater under the Work Order may be determined by SunWater in its absolute discretion (subject to these Conditions of Contract); (Terms) Upon the issue of any Work Order issued by SunWater (whether or not executed by the Contractor) the Contractor shall be bound to undertake the Supply on the following terms: the terms set out in the Work Order as determined by SunWater; and (f) (g) (h) (j) (k) to the extent they are not inconsistent with the Work Order, the terms set out elsewhere in the Contract. (No Obligation) SunWater shall be under no obligation to require or agree with the Contractor any Supply or any minimum quantity of Supply under any Work Order or in the aggregate during the Standing Order Period. (Work Order Terms Prevail) To the extent of any inconsistency between these Conditions of Contract and the Work Order, the Work Order shall prevail. (No Maximum Supply) SunWater may require Supply or quantities of Supply to any quantity it determines in its absolute discretion. (Acknowledgement of Work Order) Within 2 business days after SunWater issues a Work Order to the Contractor under the Contract, the Contractor must: acknowledge receipt of the Work Order; and confirm the Contractor will comply with the Work Order, failing which SunWater may at any time after that period give the Contractor notice withdrawing the Work Order (without prejudice to SunWater's rights arising from the Contractor s failure to comply with the Contract). (Means of Issuing Work Orders) SunWater may issue any Work Order by mail, fax or to the Contractor's Representative specified in the Contract Particulars (to the address set out in the Contract Particulars or any alternative address notified in writing to SunWater at any time). (Negotiated Work Orders) Despite any other provision of the Contract, the parties agree: SunWater may issue a Work Order which contains terms which SunWater determines in its absolute discretion and which are not provided for, or which are inconsistent with, this Contract (including, without limitation, terms which are not provided for in the Work Order Particulars Options in Part B of the Contract Particulars) ("Negotiated Work Order"); immediately upon: SunWater giving the Contractor a Negotiated Work Order; and the Contractor accepting that Negotiated Work Order by notice in writing to SunWater the parties will be bound by a contract which comprises: Doc No.Legal # Version No. 3 Version Date. 11 December 2015

2 (C) the Negotiated Work Order; and (D) the terms set out elsewhere in the Contract. where the Contractor commences the provision of the Supply ordered under a Negotiated Work Order, the Contractor will be deemed to have accepted all of the terms of that Negotiated Work Order for the purposes of this Contract; if the Contractor has not accepted a Negotiated Work Order by notice in writing to SunWater within seven business days of the date of SunWater giving the Contractor the Negotiated Work Order, SunWater may withdraw the Negotiated Work Order by notice in writing to the Contractor; and a Negotiated Work Order will be taken to be a Work Order for the purposes of this Contract after it is accepted by the Contractor. 2. Performance (a) (Performance) The Contractor must, as an independent contractor, provide all things necessary to complete the Supply in accordance with this Contract. (Time) The Contractor must: satisfy the Commencement Preconditions set out in the Work Order and commence the Supply on or before the Commencement Date specified in the Work Order; where the Work Order provides for a Supply Period, carry out the Supply continuously throughout the Supply Period in accordance with this Contract; and proceed with due expedition and without delay, and achieve: completion of the Supply which means: (1) to the extent the Supply is for the provision of Goods, the delivery of the Goods to the Site; (2) to the extent the Supply is for the carrying out of Works, the completion of the Works except for immaterial defects which SunWater considers can be rectified after Completion; (3) to the extent the Supply is for the performance of Services, the performance of all of the Services to SunWater's satisfaction; (4) to the extent any two or more of subparagraphs (1), (2) or (3) apply to the Supplier, the satisfaction of the requirements of all of the subparagraphs that apply; and satisfaction of all conditions required by this Contract to be satisfied before Completion, to the satisfaction of SunWater ("Completion") before the 'Date for Completion' specified in the Work Order or within the period specified in the Work (c) (d) (f) (g) (h) Order (as the case may be) (which shall only be extended as expressly provided in the Contract) ("Date for Completion"). (Payment) SunWater must pay, in the manner set out in this Contract, the amount referred to in the Work Order as the Supply Price (which amount shall only be increased as expressly provided in this Contract) ("Supply Price"). (Goods) To the extent the Supply is for the provision of goods ("Goods"): the Contractor warrants that the Goods are fit for their purpose, of merchantable quality and free and clear of all liens, charges or encumbrances; full unencumbered title in the Goods passes to SunWater upon the earlier of any payment for the Goods or delivery, but risk in the Goods remains with the Contractor until Completion; SunWater may return the Goods at the Contractor's cost and risk if SunWater finds that the Goods or any part of them are not in accordance with this Contract; and SunWater will only be taken to have accepted the Goods when SunWater advises the Contractor that the Goods are acceptable to SunWater or SunWater puts the Goods to use (other than for testing). (Works) To the extent the Supply is for the carrying out of works ("Works") the Contractor must ensure the Works are carried out in a proper and workmanlike manner and that the Works incorporate only new materials or plant which are of merchantable quality and fit for that purpose. (Services) To the extent the Supply is for the performance of services ("Services"): the Contractor must use reasonable skill and care in providing the Services; the Contractor warrants that the Services will be fit for their purpose; and to the extent the Services include superintending or administering any contract, or providing advice or assistance to others in connection with their superintendence or administration of any contract, the Contractor shall satisfy itself as to the terms of and act in accordance with the requirements of that contract (including those which may give rise to a requirement that SunWater ensure the Contractor or the others to whom the Contractor is providing advice or assistance act reasonably or independently). Except to the extent any such contract requires otherwise, the Contractor agrees to act in accordance with SunWater's interests and reasonable directions. (Relationship of Parties) The Contractor acknowledges: this Contract does not create any relationship of employment, partnership or joint venture; it is not entitled to any employee benefits or entitlements; and it has no authority to act as SunWater's agent or on SunWater's behalf. (Term) The parties agree this Contract shall continue to apply until the later of: the last Defects Liability Period under the Work Order; the last date that Completion is achieved under the Work Order; and the expiry of the last Supply Period under the Work Order, page 10

3 even if that date is after the end of the Standing Order Period set out in the Contract Particulars (unless terminated earlier in accordance with this Contract). (Extension of Standing Order Period) At any time prior to the expiration of the current Standing Order Period specified in the Contract Particulars, SunWater may on one or more occasions as SunWater determines in its absolute discretion extend the Standing Order Period by any period but the aggregate of all periods of extension under this clause cannot exceed the Maximum Aggregate Period of Extension set out in the Contract Particulars. References in the Contract to the Standing Order Period are taken to include any period of extension in accordance with this clause. 3. Contractor's Obligations 3.1 Subcontracting, Assignment and Personnel (a) (Subcontracting and Assignment) The Contractor must not subcontract or assign or otherwise deal with any right or obligation under this Contract without SunWater's prior written consent. (Responsibility for Subcontracting) If the Contractor subcontracts any of the Supply, the Contractor: remains fully responsible for the Supply and its obligations under this Contract; and will be liable to SunWater for acts or omissions of its subcontractors and their employees and agents (as if they were acts or omissions of the Contractor), including where any subcontractor is nominated or consented to by SunWater. (c) (Personnel) The Contractor must use the personnel nominated to and accepted by SunWater (or other personnel acceptable to SunWater) to provide the Supply. (d) (Separate Contractors) The Contractor must cooperate with, and coordinate the Supply with works, services or supplies being provided by other contractors on the Site. (Assignment by SunWater) The Contractor agrees: SunWater may encumber, transfer, assign, novate or otherwise deal with its rights or obligations under this Contract at any time ("SunWater Dealing"); and the Contractor must promptly enter into any agreements which SunWater reasonably requests to give effect to a SunWater Dealing. 3.2 Site (a) (Access to the Site) The Contractor must only access and use the Site: after giving SunWater at least 48 hours prior notice of its intention to commence the Supply on the Site; after completing any safety or other training or induction required by SunWater; for the purposes of providing the Supply; without interfering with others using the Site; on days and during hours specified in the Work Order and not during any Excluded Working Times (except as otherwise directed by SunWater or in an emergency); (c) (d) (vi) in accordance with SunWater's reasonable directions; (vii) subject to SunWater's right to require the prompt removal of any person from the Site at any time including, without limitation, persons SunWater considers to be unsafe or offensive; (viii) at the locations directed by SunWater; (ix) via the routes which ensure minimum disturbance and inconvenience and as directed by SunWater; (x) doing all things necessary to avoid nuisance to or interference with SunWater or any other person at or near the Site; and (xi) if it informs itself of and complies with SunWater policies or rules (including any Principal Requirements Documents specified in the Contract) relevant to the Site or areas adjoining the Site. (Management of Site) To the extent the Contractor accesses or uses the Site for the purposes of providing the Supply, the Contractor must: keep the Site safe, secure, clean and tidy and free of rubbish and surplus material; clean up and make good fencing, roads, footpaths and surfaces on or adjacent to the Site, to SunWater's satisfaction, before Completion; correctly set out the Works on the Site (to the extent the Supply is for the carrying out of Works); not permit the Site to be used for any purpose other than carrying out the Supply; and not allow disconnection of or disruption to any utility or other services or alteration of or disruption to existing improvements or operations, without SunWater s prior approval. (Protection of the Supply, People and Property) The Contractor must in providing the Supply: protect all people from death or injury (including by the provision and maintenance of barricades, guards, fences, signs, lighting and traffic flagging); protect the Supply (including any unfixed plant, materials and goods) and all other property (including property or works of SunWater or others) from loss or damage; and promptly make good, at its own cost, any loss or damage to the Supply or any loss or damage caused to any property of SunWater or third parties by or in connection with the Supply (except to the extent it is caused by the breach or negligence of SunWater or its officers, employees, agents or other contractors). (Site Conditions) Despite any other provision of this Contract: the Contractor accepts the risk of all known and unknown conditions of the Site (including without limitation natural or artificial conditions, contamination, services, facilities and page 11

4 improvements on the Site (including those installed or constructed by other contractors)) ("Site Conditions"); the Contractor is not entitled to any adjustment to the Supply Price or to any claim for any costs, expenses, damages, delay or disruption costs or other liabilities or extension of time arising from any Site Condition; the Contractor must carry out all works required to ensure the Supply is in accordance with this Contract despite any Site Conditions; SunWater gives no warranty and makes no representation as to the capacity of the Site to support the Works or Goods; and the Contractor warrants the Site is suitable for and can support the Works or Goods and that the Contractor can provide the Supply in accordance with this Contract so that the completed Supply complies with the requirements of this Contract. 3.3 Information and Documents (a) (Goods Information) To the extent the Supply is for the provision of Goods, the Contractor must: notify SunWater at the time of dispatch of the Contract Number (as identified in the Contract Particulars), description and quantity of the Goods dispatched and the method and route of their transportation; package the Goods safely and securely (so as to avoid any damage during transit) and otherwise as required by this Contract and in accordance with the carrier s requirements; clearly label packages with "SunWater" and the Contract Number applicable to the packaged Goods; ensure the Goods are accompanied by a packing slip for each package (detailing the Contract Number, description and quantity of the packaged Goods); and ensure the Goods are signed for by an authorised representative of SunWater (and the Contractor is not entitled to make a claim for any progress payment for the Supply until the Goods are signed for by an authorised representative of SunWater). (Management Plans) Subject to paragraph 3.3, the Contractor must prepare and submit to SunWater before commencing the Supply, comprehensive and detailed Contractor's Management Plans covering the matters referred to in the Contract Particulars. The Contractor acknowledges that: SunWater has prior to the date of this Contract provided to the Contractor and the Contractor has satisfied itself as to, the Principal Requirements Documents referred to in the Contract Particulars; and the Contractor is not entitled to any claim, including without limitation for any extension of (vi) time or cost arising out of or in connection with either the use of the Principal Requirements Documents or the preparation by the Contractor of its own Contractor's Management Plans as contemplated by this clause. The Contractor must as and when required by SunWater: (C) consult openly with SunWater in respect of the preparation of the Contractor's Management Plans; obtain SunWater's approval to the Contractor's Management Plans and any update to the Contractor's Management Plans; and update the Contractor's Management Plans to address changed or additional matters identified by SunWater or the Contractor from time to time. The Contractor must: (C) comply with Principal Requirements Documents identified in this Contract so far as they are relevant to the provision of the Supply; ensure the Contractor's Management Plans are implemented and complied with in connection with the Supply; and not change a Contractor's Management Plan unless it has obtained SunWater's prior approval to the change. The Contractor agrees: the Contractor's Management Plans must, as a minimum, satisfy all requirements of and be consistent with this Contract, environmental requirements, Principal Requirements Documents, Work Health and Safety Requirements and laws and legal requirements; and this Contract, laws and legal requirements and any government approvals shall prevail over the Contractor's Management Plans and Principal Requirements Documents to the extent of any inconsistency or discrepancy between them. The Contractor agrees: the Contractor's obligations under the Contractor's Management Plans and Principal Requirements Documents comprise only minimum obligations; the Contractor shall remain fully responsible for complying with this Contract, all laws and legal requirements, and government approvals, and will not be relieved of any obligation, duty of care, warranty or liability arising out of or in connection with this Contract or the performance of the Supply; and page 12

5 (c) (d) (C) SunWater does not assume any responsibility to the Contractor arising out of or in connection with any approval or audit of any Contractor's Management Plan or any audit of the Contractor's performance in accordance with any Contractor's Management Plan, notwithstanding: (D) (E) the obligation of the Contractor to prepare, implement or comply with the requirements of the Contractor's Management Plans and Principal Requirements Documents in accordance with this Contract; or any comment or direction upon, review or acceptance or approval of, direction to proceed with or request, or absence of request to vary or update a Contractor's Management Plan by or on behalf of SunWater. (vii) The Contractor's full compliance with its obligations under paragraphs and of this clause is a condition precedent to the Contractor being entitled to submit any claim for payment under this Contract at any time. (Adequacy of Information) The Contractor must: promptly notify SunWater if any information provided to the Contractor by or on behalf of SunWater is inaccurate or inadequate for the Contractor to provide the Supply or contains any discrepancy; give SunWater reasonable prior written notice of any information or documents required from SunWater in connection with the Supply; not rely on any information provided by or on behalf of SunWater for any purpose whatsoever except to the extent SunWater specifically authorises the Contractor to do so in writing (which sets out the information to be relied upon and purpose for which it can be relied upon by the Contractor); and release SunWater from and indemnify SunWater against any loss or liability arising from the Contractor not complying with paragraph (c). (Intellectual Property) The Contractor: irrevocably licenses SunWater to use any intellectual property connected with the Supply and not referred to in paragraph (d) for any of its own purposes; agrees SunWater's licence is perpetual, royalty-free and non-exclusive; agrees that ownership of all intellectual property created in connection with the Supply vest in or are immediately assigned to SunWater upon its creation; and indemnifies SunWater against any loss or liability arising from third party claims in connection with the intellectual property. (f) (g) (h) (Reporting) The Contractor must keep SunWater fully informed as to any matters affecting the cost, timing or quality of the Supply or any other matters specifically requested by SunWater, including the supply of progress reports when directed by SunWater. (Ownership of Documents) All documentation either: provided by or on behalf of SunWater to the Contractor; or provided by or on behalf of the Contractor to SunWater, will remain or, when provided by the Contractor, become the property of SunWater. (Documents Relating to Supply) As a precondition to Completion, the Contractor must deliver to SunWater: all suppliers and manufacturers warranties, inspection or testing certificates and operation or maintenance manuals relating to the Supply available to the Contractor or required by this Contract (on terms allowing their enforcement by SunWater); all approvals, certificates or other authorisations required for the Supply before the Supply can be applied to its intended purpose; and all other documents required by this Contract to be delivered by the Contractor before Completion (including the Pre-completion Documents referred to in the Work Order). (Publicity) The Contractor must obtain SunWater's written approval before publishing or publicising any information associated with SunWater or the Supply. (Confidentiality) The Contractor must keep confidential and not use for any purpose other than carrying out the Supply any information about this Contract, the Supply, SunWater or otherwise provided by or on behalf of SunWater (except if necessarily provided to the Contractor s legal advisers or accountants or required by law); and SunWater must not, without the consent of the Contractor, disclose to any person other than SunWater's employees and agents, the contents of any information provided to SunWater, which is confidential to the Contractor, except: (C) where required or permitted by law or a policy of any government department or public authority; to SunWater's Shareholding Ministers as that term is defined in the Government Owned Corporations Act 1993 (Qld); to its directors, shareholders, financiers, legal advisers and other consultants; or (D) in enforcing this Contract or in a proceeding arising out of or in connection with this Contract or page 13

6 resolving any dispute between the parties under this Contract. (j) (Directions) Where SunWater gives a direction relating to the Supply: the Contractor must comply with the direction (without affecting the Contractor s responsibility for its own actions as an independent contractor); or if the Contractor considers it is not for any reason bound to comply with the direction, the Contractor must notify SunWater that it considers itself not so bound and the reason, immediately after the direction is first given. 3.4 Quality (a) (SunWater's Property) The Contractor must use any property, goods, materials, services or information provided by SunWater: at its own risk; only to provide the Supply; using reasonable care; and in accordance with SunWater's instructions. (Quality Assurance) Unless SunWater agrees otherwise, the Contractor must implement a quality assurance plan in connection with the Supply to SunWater's requirements. (c) (Commissioning Program) Where the Work Order requires a commissioning program, the Contractor must: obtain SunWater's approval to a commissioning and testing program for the Works or Goods in sufficient time to allow commissioning and testing prior to the Date for Completion; ensure such program establishes that the Supply complies with this Contract and the requirements of SunWater; successfully commission and test the relevant Works or Goods in accordance with such program before Completion; and co-operate with SunWater in connection with any additional testing or inspection required by SunWater at any time. (d) (Defects) Without limiting or excluding any of its other rights, SunWater may in its discretion, require the Contractor to promptly rectify, replace, repair or re-supply ( rectification activities ) any part of the Supply which SunWater finds to be defective at any time before the expiry of the Defects Liability Period set out in the Work Order (which, unless otherwise stated in this Contract commences from Completion or in connection with any rectification activities, completion of the rectification activities). If no Defects Liability Period is set out in the Work Order, the Defects Liabilities Period will be 12 months. (Defective Goods) Without limiting or excluding other rights of SunWater, if Goods are determined by SunWater to not be in compliance with this Contract: SunWater may return the Goods to the Contractor at the Contractor s risk and expense; and the Contractor will be indebted to SunWater for: the Supply Price paid by SunWater for the returned Goods (if paid); and the costs incurred by SunWater in connection with the delivery and return of the returned Goods. 3.5 Laws and Legal Requirements (a) (Legal and Contractual Compliance) The Contractor must: comply with and ensure the Supply (c) complies with: all agreements and policies of SunWater (notified to the Contractor) including the Principal Requirements Documents referred to in the Contract; and all laws and legal requirements; and except to the extent expressly provided by this Contract pay all fees, taxes, duties and other charges relating to the Supply. (Industrial Relations) The Contractor must: ensure all its employees and its subcontractors employees are employed and remunerated in accordance with any applicable laws, awards or agreements; promptly notify SunWater of any industrial claim, dispute or disturbance arising in connection with the Supply and ensure as far as practicable that the Supply continues; and consult with SunWater, actively manage and do all things necessary to manage good industrial relations with all its employees and its subcontrators employees employed in connection with the Supply to avoid industrial relations disputes or disturbances which may affect the Supply or the Site. (Environmental Protection) The Contractor must: take all action necessary (including complying with and not causing SunWater to breach any laws and legal requirements) to protect and preserve the environment from harm or damage arising from or in connection with the Supply; obtain all approvals and licences required and pay and indemnify SunWater against all fees, fines or other amounts payable under environmental laws (including in connection with any applicable approvals or licences); except as expressly required or permitted by this Contract, not remove or damage any existing vegetation on or in the vicinity of the Site; if the Contractor receives any direction or notice from any authority having jurisdiction over the carrying out of the Supply, provide a copy of the direction or notice to SunWater within 2 business days of receiving the direction or notice; immediately report in writing to SunWater any breach of: page 14

7 (d) any environmental law or legal requirement; any of the Contractor's environmental obligations under this Contract; or (C) any incident concerning the Supply which causes or has the potential to cause environmental harm; (vi) at all reasonable times give SunWater and any other person authorised in writing by SunWater, access to the Site and any documentation or records relating to Contractor's environmental obligations under this Contract; (vii) promptly make good at its own cost, any pollution, contamination, damage or other harm to the environment arising out of, or in connection with, the Contractor carrying out the Supply, and pay any compensation as required in accordance with any laws and legal requirements or environmental requirement (whether or not the Contractor has complied with its environmental obligations under this Contract); and (viii) to the maximum extent permitted by law, indemnify SunWater and SunWater's employees and agents, against all claims, demands, actions, costs (including legal costs), charges, expenses, damages, loss, penalties, fines or other liability arising from or in connection with actual or threatened environmental harm, arising from or contributed to by: (C) the carrying out of the Supply except to the extent directly caused by the negligence of SunWater; the Contractor's failure to comply with any Principal Requirements Documents (including the Contractor s Management Plans) or this Contract; breach by the Contractor of its obligations under this clause; or (D) acts or omissions of the Contractor, its employees, its subcontractors or their employees and agents (whether wilful, negligent or otherwise). (Workplace Health and Safety) For the purposes of this clause: "Work Health and Safety Law" means any legislative requirement, principles of law or equity established by decisions of Australian Courts or requirements of persons acting in the exercise of statutory powers relating to health and safety, including the Work Health and Safety Act 2011 (Qld) and the Work Health and Safety Regulation 2011 (Qld); and "Work Health and Safety Requirements" means: any Work Health and Safety Law; and the requirements of: (1) Principal Requirements Documents; (2) any manufacturer's recommendations associated with any equipment or materials to be used for the purposes of carrying out the Supply; or (3) any other provisions of this Contract, relating to health and safety. The Contractor must comply with (and ensure its officers, employees, agents and subcontractors comply with) and ensure that the Supply is carried out in accordance with all Work Health and Safety Requirements. The parties agree: (C) (D) (E) (F) subject to subparagraph (C), to the extent stated in the Work Order, SunWater appoints the Contractor as the "principal contractor" (as defined by Work Health and Safety Law) in respect of the Supply; the Contractor accepts appointment under subparagraph ; to the extent necessary to allow the Contractor to discharge its duties as "principal contractor" SunWater authorises the Contractor to: (1) assume effective management and control of the Site; and (2) carry out and discharge the duties given to the principal contractor by Work Health and Safety Law; the Contractor's appointment as "principal contractor" under this clause ends, for any part of the Site, only when: (1) the Contractor has completed all things necessary to complete the Supply in that part of the Site and the Contractor ceases to have access to that part of the Site; or (2) SunWater notifies the Contractor in writing that it is no longer to be the "principal contractor" in respect of that part of the Site; if the Contractor is required to perform any defect rectification work during the Defects Liability Period, SunWater re-appoints and re-authorises the Contractor to be "principal contractor" pursuant to the Work Health and Safety Law in respect of the defect rectification work for all areas of the Site and the Contractor accepts such an appointment; and the Contractor is responsible for ensuring that it discharges the obligations imposed on a "principal contractor" under page 15

8 Work Health and Safety Law even if its appointment as "principal contractor" under Work Health and Safety Law is not (or cannot be) effective for any reason (including without limitation because the nature or extent of activities to which the obligations of the Contractor relate do not allow the appointment of a "principal contractor" under Work Health and Safety Law). The Contractor must ensure that the Contractor and its officers, employees and agents, subcontractors and its subcontractors' officers, employees and agents: (C) (D) (E) (F) subject to paragraph (d), comply with the directions of SunWater (or any other person nominated by SunWater (which may include without limitation a principal contractor to the extent the Contactor has not been appointed as principal contractor under this Contract as having the authority to give directions) ("SunWater's Nominee") in connection with health and safety; consult fully with SunWater and SunWater's Nominee in respect of: (1) any matter relevant to health and safety; and (2) without limiting subparagraph (1), how the Supply can be undertaken in a way which prevents or minimises all risks to health and safety; where SunWater's Nominee is the principal contractor in respect of the Site (and that is notified by SunWater to the Contractor), fully cooperate with that principal contractor including by allowing it management and control of the Site and complying with that principal contractor's reasonable directions in respect of workplace health and safety; maintain adequate records of all health and safety matters (including in accordance with Work Health and Safety Requirements); audit their respective health and safety records and compliance with Work Health and Safety Requirements regularly and whenever requested by SunWater and provide to SunWater a copy of the findings of that audit; and satisfy themselves as to, and only treat as minimum requirements, those Work Health and Safety Requirements prepared or provided by or on behalf of SunWater. (vi) SunWater may at any time conduct its own audit of the Contractor's health and safety records and compliance with Work Health and Safety Requirements and the Contractor must: co-operate fully and procure its subcontractors to co-operate fully with SunWater in connection with that audit; and immediately address and ensure any subcontractors address any issues identified. The Contractor must immediately notify SunWater of: any breach or potential breach by the Contractor or any of its officers, employees and agents, subcontractors and its subcontractors' officers, employees and agents of Work Health and Safety Requirements; or any notice or direction received by the Contractor or any of its officers, employees and agents, subcontractors and its subcontractors' officers, employees and agents under or in connection with Work Health and Safety Law (including by providing a copy of the notice or direction to SunWater). (vii) Despite any other provision of this Contract, SunWater's rights under this Contract relating to health and safety (including without limitation the rights under this clause, to give directions to the Contractor, carry out an audit of the Contractor's records or practices, provide, approve or review any plan or other document to be implemented or relied upon by the Contractor (including any Work Health and Safety Requirements) or exercise rights of termination under this Contract) ("Safety Enforcement Rights"): (C) are for the benefit of SunWater; may be exercised by SunWater in its absolute discretion; and do not prejudice or otherwise affect the Contractor's full responsibility for ensuring strict compliance with all of the Contractor's obligations under this Contract and under Work Health and Safety Requirements. (viii) The Contractor must provide to SunWater and also to any person who the Contractor is aware has been or will be engaged by SunWater to undertake any activities relating to the Supply ("Relevant Contractors"), all information relevant to the Supply: required to be disclosed by the Contractor in the discharge of its duties under Work Health and Safety Law; or received (or which should have been received) by the Contractor or any subcontractor of the Contractor from any other person required to disclose the information to the Contractor or page 16

9 (f) any subcontractor in the discharge of that person's duties under Work Health and Safety Law. (ix) The Contractor must indemnify and keep indemnified SunWater and their officers, employees and agents against all claims, demands, actions, costs (including legal costs), charges, expenses, damages, loss, penalty, fine or other liability (including without limitation in tort, under any law), arising from or in connection with any breach by the Contractor of its obligations under this clause or any Work Health and Safety Requirements. (Licence and Competency Requirements) Without limiting any other provision of this Contract, the Contractor must: ensure that the Contractor, its subcontractors and their respective employees and agents, hold and maintain at all times during this Contract all qualifications, certificates, licences, permits and approvals and have and maintain the necessary skills, experience and competencies required to be held for the purposes of carrying out the Supply including but not limited to those licences and competencies listed in the Principal Requirements Documents, or elsewhere in this Contract ("Licence and Competency Requirements"); where requested by SunWater, provide evidence to SunWater that the Contractor, its subcontractors and their respective employees and agents, comply with the Licence and Competency Requirements prior to commencing on Site and at other times on request by SunWater; and immediately notify SunWater if any Licence and Competency Requirements expires, is suspended or cancelled or otherwise ceases to be complied with at any time. (PPSA) In this clause, PPSA means the Personal Property Securities Act 2009 (Cth) and security interest, and perfected have the meanings given to them in the PPSA. The Contractor must, whenever SunWater requests, do anything to ensure any security interest granted to SunWater under this Contract is fully effective, enforceable and perfected with priority over any other claims or interests of any person. The Contractor must: not without SunWater's consent (which will not be unreasonably withheld) give or allow to exist any security interest in this Contract, the Supply, or plant, equipment, materials or other things used by the Contractor in the discharge of its obligations under this Contract; and whenever requested by SunWater, provide SunWater with any form, notice, consent, (vi) agreement or other information relating to a security interest referred to in paragraph 3.5(f). Despite any other provision of this Contract, SunWater will not be obliged to pay for and the Contractor will not be entitled to make a claim for the value of any part of the Supply until either: that part has been affixed to land of SunWater; or the Contractor has demonstrated to SunWater that that part is not the subject of security interests in favour of any person (other than SunWater). The Contractor must take reasonable steps to identify security interests in its favour and to perfect and protect them, with the highest priority reasonably available to the extent they are relevant to the subject matter of this Contract or the Contractor's performance of its obligations under this Contract. In relation to PPSA exclusions: to the extent this Contract gives rise to a security interest under the PPSA in favour of SunWater, the parties agree that all provisions of the PPSA listed in section 115(1) and 115(7) of the PPSA (other than sections 117, 118, 134 and 135) are excluded in full and will not apply to that security interest; and the Contractor waives its right to receive: (1) each notice which section 157(3) of the PPSA permits it to waive and, to the extent capable of being waived, notice under any other provision of the PPSA; and (2) anything from the other party under section 275 of the PPSA and agrees not to make any request of the other party under that section. (vii) For the purposes of section 275(6) of the PPSA, SunWater and the Contractor agree, their obligations of confidentiality under this Contract applies to any information of the kind referred to in section 275(1) of the PPSA relating to any security interest given or arising under this Contract. (viii) Despite any other provision of this Contract: the Contractor has no right, title or interest in or in respect of retention moneys which may be retained by SunWater under this Contract; and the retention moneys comprise amounts of consideration under this Contract in respect of which page 17

10 SunWater has no payment or other obligations, until those retention moneys are required by this Contract to be paid to the Contractor. 3.6 Time (a) (Program) Where the Work Order requires a program, the Contractor must: prepare and obtain SunWater's approval of a program for the Supply (in a form approved by SunWater) before commencing the Supply; at all times comply with the approved program; and not change the program without SunWater s prior written approval. (Early Use) The Contractor must allow SunWater or others authorised by SunWater early occupation or use of any part of the Supply which is fit for such occupation or use (without Completion being deemed to have occurred). (c) (Prior Notice of Completion) The Contractor must give SunWater seven (7) days prior written notice of the date upon which the Contractor anticipates Completion occurring. (d) (Early Delivery of Goods) Where Completion: is achieved by the delivery of the Goods, the Goods must not be delivered prior to the Date for Completion (without SunWater's prior written consent); and is achieved only after the installation, testing or commissioning of the Goods, the Contractor must deliver the Goods prior to the time delivery is reasonably required for the performance of the Supply in accordance with this Contract. (Liquidated Damages) Where this Contract provides a Date for Completion, if Completion is for any reason not achieved by the Date for Completion, the Contractor will be indebted to SunWater for liquidated damages calculated by applying the Rate of Liquidated Damages set out in the Work Order to the period from the Date for Completion to and including the earlier of the date Completion is achieved and the date of termination of this Contract. If no Rate of Liquidated Damages is specified in the Work Order or no positive amount for the Rate of Liquidated Damages is specified in the Work Order, SunWater will be entitled to claim general law damages. 3.7 Inspection The Contractor must allow SunWater access at any time to any place where the Supply is being undertaken to inspect any part of the Supply. 4. Contractor's Acceptance of Risk The Contractor warrants and agrees that the Contractor has satisfied itself as to all matters affecting the performance of the Supply including: (a) all Site Conditions; (c) SunWater's requirements for the Supply; and all risks which may arise (including those affecting the timing or cost of the Supply). 5. Professional Services and Design Obligations 5.1 General Where the Contractor is to provide professional services (including without limitation any Design Obligations), the Contractor must, in addition to its other obligations in this Contract: (a) (Duty of Care) ensure that in providing the Supply, it exercises the standard of skill and care expected of a competent and qualified professional; (Conflicting Duties / Interests) not accept any other engagement, employment or enter into any agreement or dealing with any person which may place the Contractor in a position of conflict in respect of any obligation under this Contract; and (c) (Professional Indemnity Insurance) effect (before commencing the Supply) and maintain (for at least 6 years after Completion) professional indemnity insurance in the amount specified in the Work Order with insurers and on terms and conditions acceptable to SunWater. 5.2 Design Obligations To the extent that the Contract requires the Contractor to undertake any design or specification of or in connection with the Supply ("Design Obligations") the Contractor: (a) confirms that the description of the Supply is adequate for the Contractor to complete the Contractor's Design Obligations in accordance with this Contract and has satisfied itself as to SunWater's requirements for the Contractor's Design Obligations; The Contractor must carry out all of its Design Obligations (including undertaking any design or redesign required to give effect to any change in SunWater's requirements or to ensure the Supply complies with the requirements of this Contract despite any Site Condition or change in law taking effect after the Date of Contract); (c) complete and provide to SunWater copies of all drawings, specifications or other documents or materials ("Design Deliverables") required to give effect to the Contractor's Design Obligations prior to relying upon those Design Deliverables; and (d) warrants that the Design Obligations and Design Deliverables, when completed, will be fit for their purpose. 6. Security 6.1 Provision of Security As security for the Contractor's performance of its obligations under this Contract: (a) (Unconditional Undertaking) where the Work Order requires Security in the amount and form of an unconditional bank undertaking, the Contractor must provide SunWater with the Security before the Contractor commences any part of the Supply; and (Retentions) where the Work Order requires Security in the form of retention moneys, SunWater may retain from any amount payable to the Contractor, an amount necessary to ensure that SunWater holds an amount equal to the Retention Percentage (as specified in the Work Order) of the total amount of the Supply Price page 18

11 previously paid or then payable to the Contractor. 6.2 Security SunWater may: (a) (Hold Security) hold the Security for its own benefit; and (Use Security) use the Security at any time to pay itself any amount claimed by SunWater from the Contractor (whether in connection with this Contract or otherwise). 6.3 Release of Security The Contractor may claim: (a) (Release after Completion) after Completion, fifty percent (50%) of Security held at Completion; and; (Release after Defects Liability Period) after the last Defects Liability Period has ended and all defects for which the Contractor is responsible have been rectified, any balance of Security held by SunWater. 6.4 Replacement of Expiring Security Where SunWater in its absolute discretion (and without being under any obligation to do so) accepts any Security on terms which cause the Security ("Expiring Security") to expire or otherwise cease to be enforceable by SunWater after the occurrence of a date or other event ("Expiry Date"): (a) the Contractor must ensure that before the date being 30 business days prior to the Expiry Date, the Contractor has provided to SunWater a replacement Security in the amount of the Expiring Security complying with the requirements of this Contract ("Replacement Security") (in exchange for the Expiring Security); if the Contractor fails to comply with paragraph (a) SunWater will be entitled to immediately convert the Expiring Security to cash, without notice to the Contractor; and (c) if SunWater exercises its right under this clause to convert the Expiring Security to cash: SunWater will hold the cash as Security under and subject to the terms of this Contract; the Contractor will have no claim arising from or in connection with the conversion of the Expiring Security or SunWater holding the cash (including without limitation for any interest); and SunWater will exchange the cash (or so much of the cash as has not been used by SunWater in accordance with this Contract) for a Replacement Security when requested by the Contractor. 7. Payments (a) (Entire Contract) Where under this Contract no part of the Supply Price (other than an amount not exceeding ten percent (10%) of the Supply Price) is payable prior to Completion, if this Contract is terminated by SunWater prior to Completion (other than for SunWater's convenience), the Contractor will have no claim for any part of the Supply Price or any other amount. (Invoices) Subject to paragraph (g), the Contractor must at each time for a payment claim set out in the Work Order (and not before): send an invoice for payment for the Supply (accompanied by all supporting documentation required by SunWater) to the address of SunWater set out in this Contract; ensure the invoice states the Contract Number, description of the Supply and the amount claimed; and only claim the amount which this Contract provides is payable to the Contractor at that time. (c) (Payment) Within the time after a Contractor's payment claim set out in the Contract, SunWater must pay the amount SunWater determines is payable to the Contractor. (d) (Calculation of Payment) The amount which the Contractor must be paid at the time of each claim for payment must be: the amount specified in this Contract as payable for the progress payment; or if no amount is specified, the amount of the value of the Supply provided to the satisfaction of SunWater to the time of the progress payment claim, but excluding any: previous amounts paid; amounts which SunWater is entitled to retain as retention moneys; amounts representing the value of unfixed plant or materials, unless SunWater has agreed to such value being included; and (vi) amounts which this Contract otherwise provides are not payable for any reason (including by way of set-off). (Title to Plant, Materials and Goods) Full unencumbered title to, and property in any plant, materials and goods provided by the Contractor as part of or in connection with the Supply passes to SunWater on the earlier of: delivery of the plant, materials or goods to SunWater; and SunWater making any payment for the plant, materials or goods. (f) (Payments Not Acceptance) Neither payments by SunWater nor the acceptance of delivery of any Supply evidence SunWater's acceptance that any of the Supply has been performed in accordance with this Contract. (g) (Conditions Precedent to Payment Claims) Despite any other provision of this Contract, the Contractor will not be entitled to make a claim for any payment until the later of the date payment may otherwise be claimed and the date the Contractor has provided to SunWater: any program (or updated program) required to be provided under this Contract; evidence of the Contractor having effected all insurances required to be effected by it under this Contract; documentary evidence (satisfactory to SunWater) that all the Contractor's employees, subcontractors and subcontractor's employees have been paid for all work, services, plant, goods and materials provided by them in connection with the carrying out of the Supply at the relevant award or rate specified in any applicable industrial agreement; and evidence of the Contractor having satisfied any other Payment Preconditions specified in the Contract Particulars. (h) (Set Off) SunWater may set off against any amount claimed by the Contractor, any amounts claimed by SunWater from the Contractor (whether in connection with this Contract or otherwise). 8. Insurance and Indemnities (a) (Risk) The Contractor agrees the Supply (including any Goods comprising part of the Supply) are at page 19