Terms and Conditions of Purchase

CHALLENGE PUMPS PTY LTD – ABN 21 114 578 415 - PURCHASE TERMS & CONDITIONS

1. In these terms and conditions the following words or phrases have the meanings shown unless the context otherwise requires:

(i) “Buyer” means the entity stated on the Purchase Order issued to the Seller being either of Challenge Pumps Pty Ltd ABN 21 114 578 415 or Challenge Pumps Australia Pty Ltd ABN 49 141 485 547, but if not stated or uncertain then the entity Challenge Pumps Pty Ltd ABN 21 114 578 415.

(ii) “Products” means all goods, products or services covered by the Contract.

(iii) “Purchase Order” means the Buyer’s purchase order issued by the Buyer to which these conditions apply, and includes printed purchase orders, whether delivered by email, hand, mail or facsimile.

(iv) “Seller” means the person, firm, partnership, company or other legal entity to whom the Purchase Order is issued and includes its servants, agents and sub-contractors.

(v) “Contract” means the contract between the Buyer and the Seller for the sale and purchase of the Products consisting of the Purchase Order and any related quote or offer by the Seller for the Products and the acceptance of the Purchase Order by the Seller.

(vi) “Purchase Price” means the price of the Products and any other fees or charges as stated in the Purchase Order.

(vii) “Invoice” means the invoice rendered by the Seller to the Buyer and includes a tax invoice.

2.1. The number appearing on the Purchase Order must be quoted by the Seller and by the Buyer on all Invoices, delivery dockets and parcels.

2.2. These Conditions of Purchase shall apply to the exclusion of all other terms and conditions whether contained in the Seller’s Invoice or conditions of sale otherwise. These Standard Terms and Conditions (“Conditions”) of Purchase are incorporated and form part of the Contract. Where a term of the Contract conflicts with these Conditions then the Contract term shall prevail. No variation of a Purchase Order will be effective unless approved in writing by the Buyer.

3.1. The Seller warrants that the Products:

(a) conform with the description provided by the Seller;

(b) conform with any applicable specifications agreed by the Buyer and the Seller;

(d) are fit for the purpose made known by the Buyer to the Seller;

(e) are free of defects in material, workmanship and design;

(f) are new (unless otherwise specified);

(g) are free from all liens end encumbrances and the Seller has good marketable title thereto; and

3.2. Where the Products are a service, the Seller warrants that:

(a) It will perform the Contract and supply the service with reasonable care and skill;

(b) The Products comply with the current best practice in the industry in relation to, environment, building, planning and local government compliance.

3.3. The warranties set out in clauses 3.1 and 3.2 are in addition to any other warranties or guarantees contained in the Purchase Order, the Contract, implied by law or provided by the Seller or any third party.

3.4. In supplying the Products, the Seller shall comply at all times with all applicable Federal, State and local laws and regulations, including without limitation environmental laws, occupational health and safety laws, building and planning laws and any local government laws.

3.5. The Seller warrants that it owns all intellectual property rights in relation to the Products.

4.1. The Purchase Price shall be fixed, and includes all of the Seller’s costs of providing the Products. The Purchase Price cannot be varied except in writing and signed by the Buyer.

4.2. Unless otherwise stated, the Purchase Price is inclusive of GST. The Seller shall be liable for all other taxes, levies, fees, deductions, imposts or duties and other charges whatsoever in connection with delivery of the Products to the Buyer. Where there is a reduction in or abolition of any existing taxes, levies, fees, deductions, imposts or duties and other charges, the consideration (excluding any GST) payable by the Buyer for Products shall be reduced by the same proportion as the actual total supply costs of the Seller are reduced as a consequence of that reduction or abolition of those transaction taxes. The Seller shall issue to the Buyer a tax invoice on delivery in the form prescribed by any relevant law or regulation.

5. The terms of payment are 30 days from a proper Invoice, which must specify the Buyer, the Purchase Order number and be a tax invoice for GST purposes. The Buyer may set off any amount owing under the Contract against any amount due from the Seller to the Buyer for any reason whatsoever.

6.1. Unless otherwise specified in the Purchase Order, the date of delivery of the Products shall be promptly after the issue of the Purchase Order and the place of delivery shall be the premises stated in the Purchase Order.

6.2. Time is of the essence insofar as it applies to the obligations of the Seller under the Contract. If any Products are not delivered within the time specified in the Purchase Order, the Buyer may at its discretion refuse to accept such Products and terminate the Contract; or cause the Seller to deliver the Products by the most expeditious means at the Seller’s expense; or cause the Seller to compensate the Buyer for any claims made against the Buyer by its clients as a result of late delivery.

7.1. Notwithstanding clause 6 hereof, the Buyer may reject Products not conforming to the Contract for any reason whatsoever upon delivery of such Products or within a reasonable time thereafter.

7.2. Any interim payment or instalment of the Purchase Price is a payment on account only and shall not prejudice its right of rejection contained herein. The Seller shall reimburse the Buyer for:

(a) any purchase price paid by the Buyer with respect to such Products; and

(b) any costs incurred by the Buyer in connection with the rejection of such Products.

8. Title to and risk of loss in the Products shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract, but without prejudice to any right of rejection or other rights which may accrue to the Buyer hereunder.

9. The Seller shall take out and maintain insurance in the name of the Seller, and the Buyer for accidental loss and damage to the Products (which are goods), and public liability, in an amount not less than $10million (any one event), worker’s compensation (including common law liability), motor-vehicle and compulsory third party, freight liability insurance and product damage insurance for the Purchase Price of the Products. The Seller shall provide evidence of such insurance within 14 days of a request to do so by the Buyer, and upon such other terms and conditions as specified in writing by the Buyer.

10.1. The Seller shall be liable for any personal injury or death to any person arising from the provision of the Products.

10.2. The Seller shall comply with all statutes, regulations, by laws and the requirements of any authority in relation to the safe provision of the Products.

10.3. Where the Products are a service, the Seller shall obtain all necessary approvals and permits required or reasonably necessary for the safe and lawful provision of the Products and the Seller shall:

(a) use only properly qualified and competent employees and contractors;

(b) prepare an appropriate risk assessment,

(d) ensure all employees and contractors are supplied with and use protective equipment which meets current best practice in the relevant industry;

(e) continuously monitor the activities of employees and contractors to ensure continuous safety and compliance with this Contract, and immediately suspend any activity which is unsafe or does not comply with this Contract; and

(f) report any hazards to the Buyer.

11.1. The Seller shall indemnify the Buyer, and hold the Buyer harmless against any loss, damage, expense, claim or liability suffered or incurred by the Buyer, whether consequential, indirect or otherwise, as a result of a breach of the Contract. Without limiting this clause, the Seller shall repair or replace, at the Buyer’s option, all Products which are or become defective or otherwise fail to comply with all warranties contained in the Contract within 30 days of notification of such defect or failure from the Buyer. Clause 3 shall apply to such repairs or replacements. Part 1F of the Civil Liability Act 2002 (WA) is excluded from the Contract.

12.1. The Seller shall not assign its rights or obligations hereunder or sub-contract any work to be performed pursuant to the Contract without the prior written consent of the Buyer. The Buyer’s consent to the Seller sub-contracting any work to be performed pursuant to the Contract shall not relieve the Seller of its responsibility for the whole of the work to be performed pursuant to the Contract or of any obligations contained in the Contract or at law. Where the Buyer has consented to the placing of sub-contracts by the Seller, copies of each sub order shall be sent by the Seller to the Buyer immediately they are issued.

13. Neither the Seller nor the Buyer shall be liable to the other for default or delay in performing its obligations under the Contract caused by any event which could not be avoided by the taking of reasonable precautions including, without limitation, fire, strike, pandemic, industrial disturbance, riot, war, act of God and governmental order or regulation, PROVIDED THAT the party affected by such occurrence gives written notice thereof to the other party within 7 days of the commencement of that occurrence. The obligations of the party affected are suspended for the period that the Force Majeure event prevents the performance of its obligations under the Contract. If the Force Majeure event continues for more than three (3) months then the Contract comes to an end, both parties are relieved from further performance and the Buyer is only obliged to pay for those Products which have been delivered.

14.1. The Contract shall be governed by, subject to and construed in accordance with the laws of Western Australia and the parties submit to the jurisdiction of the courts of Western Australia and the Commonwealth of Australia.