TERMS AND CONDITIONS OF HIRE

BLACKSHEEP HIRE & EXCAVATIONS PTY LTD

TRADING AS BLACKSHEEP HIRE & EXCAVATIONS ABN 78 679 957 165 (“BHE”)

All Equipment provided to the Customer by BHE will be subject to the following General Terms and Conditions, which form part of the Hire Agreement.

1. DEFINITIONS AND INTERPRETATION

1.1. In these General Terms and Conditions, unless otherwise required:

‘Agreement’ means the accompanying hire agreement between BHE and the Customer for the hire of Plant and Equipment;

‘BHE’ means Blacksheep Hire & Excavations ABN 78 679 957 165;

‘BHE’s Premises; means 10 Chinderah Drive, Chinderah NSW 2487 or such other premises as BHE may specify in writing for the purpose;

‘Business Day’ means a day that is not a Saturday, Sunday or a Public Holiday in New South Wales;

‘Collection’ means collection of the Plant and Equipment, whether by the customer (Including without limitation by BHE under Clause 4.3), from BHE premises or another person or company where the Plant and Equipment are for the time being located;

‘Customer’ means the person or company whom or which BHE makes the Agreement as “Hirer”;

‘Delivery’ means the delivery of the Plant and Equipment to a site specified by the Customer, as specified in the quotation or as otherwise agreed in writing between the parties;

‘Delivery Address’ means the delivery address specified in the Agreement or such alternate delivery address as may be agreed in writing between the parties;

‘General Terms and Conditions’ means these terms and conditions, and includes the Agreement;

‘Hire’ means the hire of the Plant and Equipment by the customer;

‘Hire Charge’ means a charge for hire or transport of the Plant and Equipment, and any other amount which may be charged by BHE to the Customer as set out in the Agreement or arising from or in relation to any cost or expense incurred by BHE under the agreement;

‘Hire Rate’ means a rate at which Hire Charges are calculated pursuant to the Agreement;

‘Invoice’ means an invoice in respect of Hire Charges issued under Clause 7;

‘Loss’ means:

(a) loss, including but not limited to direct loss, special loss, loss of anticipated profits and/or loss of business opportunity;

(b) liability;

(d) cost or expense including legal costs on a full indemnity basis.

“Parties’ means BHE and the Customer, and ‘party’ means either of them;

‘Security Deposit’ means a refundable deposit to be held by BHE as security for the Customer’s use and possession of the Equipment and in accordance with clause 7.

‘Term’ means the hire term agreed in writing between the parties.

2. AGREEMENT FOR HIRE

2.1. The Agreement is formed upon BHE’s acceptance of the Customers hire request, and comprises the Agreement and these General Terms and Conditions.

2.2. Prior to accepting the Agreement BHE may require the Customer to provide security payments in advance.

2.3. The Customer agrees to be bound by these General Terms and Conditions. This agreement is confirmed when the Customer signs these General Terms and Conditions or any hire or lease document for the Plant and Equipment that includes or refers to them.

2.4. Upon the Agreement becoming binding, BHE agrees to hire to the Customer, and the Customer agrees to take on hire from BHE, the Plant and Equipment for the Term on the terms and conditions contained in the Agreement, including these General Terms and Conditions

3. TERM

Subject to Clause 12, the hire Term will be as specified in writing in the Agreement between the parties.

4. COLLECTION, DELIVERY AND RISK

4.1. The Customer will be responsible for the collection of the Equipment from BHE’s premises unless otherwise

agreed between the parties.

4.2. Risk in the Plant and Equipment passes to the Customer in accordance with clause 6.

4.3. If BHE is responsible for delivering the Plant and Equipment, the Customer must provide vehicular access via a properly constructed roadway to the Delivery Address. If access is not provided, BHE will attempt to deliver the Plant and Equipment as close to the Delivery Address as conditions permit or as deemed appropriate. BHE will not be liable for any costs, damages, or injuries arising from the inability to deliver to the Delivery Address or from the manner or location of the delivery.

4.4. The Customer agrees that the Plant and Equipment will be deemed to be delivered and in good condition unless notice of defects is received by BHE within two (2) hours after delivery.

4.5. Unless specifically stated otherwise in the Agreement, the Customer is responsible for all transport charges incurred by BHE in relation to the return of the Plant and Equipment to BHE’s Premises or such other premises as may be agreed in writing between the parties.

4.6. If the Customer elects to organise its own transport for the purposes of returning the Plant and Equipment to BHE at the expiry of the Term or upon earlier termination in accordance with Clause 13.2, then it will return the Plant and Equipment:

(a) at its own expense;

(b) in the same condition as the Plant and Equipment were in at the commencement of the Hire, cleaned and properly maintained, subject only to fair wear and tear; and

4.7. The Customer will be solely responsible for the operation of the Plant and Equipment after Delivery, and BHE and the Customer agree and the Customer specifically acknowledges that:

a. the Customer must not modify or alter the Plant and Equipment in any manner whatsoever, including without limitation by the removal of any item without BHE’s written consent; and

b. the Customer must, at its own cost and prior to the return of the Plant and Equipment at the expiry of the Term or the earlier termination of the Agreement, rectify any damage caused to the Plant and Equipment.

4.8. The Customer warrants that it will comply with all applicable legislation and regulations, including without limitation any relevant equipment operating codes, and that it will comply with all applicable equipment operating standards and good equipment operating practice.

4.9. The Customer agrees to indemnify and protect BHE from any claims, costs, damages, expenses, or losses resulting from the Customer’s failure to meet their obligations under this Clause 4. This includes, but is not limited to, any remedial or corrective action needed due to improper or unlawful use of the Plant and Equipment.

5. INSPECTION, LIMITATION OF LIABILITY AND WARRANTIES

5.1. Inspection of Plant and Equipment. The Customer may inspect the Equipment at BHE’s premises or the Delivery Address before taking possession. Unless the Customer provides notice of any shortages or defects as outlined in Clause 4.4, they are considered to have accepted the Equipment’s condition, quality, safety, suitability for their purposes, and compliance with its description.

5.2. Indemnity

To the fullest extent permitted by law, the Customer indemnifies and shall keep indemnified BHE and its agents and employees from and against:

(a) All claims and demands for any loss or damage caused to the Customer, its agents, employees, or any other person or company, including death, injury, property damage, delay, financial loss, or any other issue, arising from the transport of the Plant and Equipment to and from the Delivery Address and the Customer’s possession or use of the Plant and Equipment; and

(b) any and all costs and disbursements incurred by BHE in pursuing any debt arising from a default in payment of an invoice by the Customer when due, including legal costs (on a solicitor-client basis) and any fees associated with BHE’s collection agency;

5.3. Exclusion of liability for Loss

BHE will not be liable for any special, indirect, consequential, or punitive losses, costs, expenses, or damages resulting from a breach of the Agreement, including loss of profits, revenue, use of the Plant and Equipment, or the cost of substitute Plant and Equipment.

6. RISK AND TITLE

6.1. BHE retains full title to the Plant and Equipment notwithstanding their delivery to the Customer, their

possession and use by the Customer and any temporary attachment of the Plant and Equipment to any land or buildings to facilitate its use.

6.2. Equipment supplied by BHE to the Customer will be at the Customer’s risk upon:

(a) delivery to the Customer; or

(b) delivery to the Customer’s custody possession or control, whichever is the sooner.

7. SECURITY DEPOSIT

7.1. Deposit Requirement

The Hirer shall pay a refundable deposit as set out in Item 3.2 of the Agreement to the BHE / The Owner prior to the commencement of the hire period. This deposit is intended to cover any potential damages or losses incurred during the hire period.

7.2. Conditions for Refund

The deposit shall be refunded to the Hirer upon the return of the equipment, provided that:

(a) The equipment is returned in the same condition as it was at the commencement of the hire period, subject to fair wear and tear.

(b) All hire charges and any other amounts due under this agreement have been paid in full.

7.3. Deductions from Deposit

The Owner reserves the right to deduct from the deposit any costs associated with:

(a) Repairing damages to the equipment beyond fair wear and tear.

(b) Cleaning the equipment if it is returned in an unsatisfactory condition.

7.4. Refund Process

The refund of the deposit shall be processed within five (5) business days following the return of the equipment and the completion of any necessary inspections or repairs.

7.5. Dispute

In the event of a dispute regarding the condition of the equipment or the amount to be refunded, both parties agree to resolve the matter in accordance with Clause 18 herein prior to seeking any legal remedies.

8. HIRE CHARGES AND TERMS OF PAYMENT

8.1. The Customer will pay the total amount of the Hire Fees and additional fees / charges calculated in accordance with the Hire Rate set out in Item 3.4 of the Agreement by the Start Date of the Agreement. For the avoidance of doubt the Customer will not be permitted to collect the Equipment until full payment of the Hire Fees and the Security Deposit is received.

8.2. If the Customer extends the Hire Period in accordance with Clause 9 herein, the Customer will pay BHE on demand interest at the Reserve Bank of Australia cash rate plus 4% per annum on all overdue amounts owed by the Customer to BHE, which interest will be calculated daily and will be payable together with the overdue amount.

8.3. For the avoidance of doubt, except where due to failure of the Equipment, if the customer ends the Hire Period earlier than the End Date, the Customer will not be entitled to a refund of any portion of the Hire Fee. The Customer expressly acknowledges that this is a reasonable pre-estimate of BHE’s lost revenue as a result of the Equipment not being available for hire during the whole duration of the Hire Period.

9. VARIATION TO HIRE CHARGES

If the Customer needs additional Plant and Equipment (other than the originally hired Plant and Equipment) during the Term, BHE will specify the Hire Charge for the new Plant and Equipment. If the Customer agrees to the charge, the additional Plant and Equipment will be hired to the Customer under the terms of this Agreement.

10. USE OF PLANT AND EQUIPMENT

10.1. The Customer must operate and maintain the Plant and Equipment in compliance with all relevant Commonwealth and State laws (including occupational health and safety legislation), as well as the manufacturer’s or supplier’s requirements and recommendations, and industry-recognised standards.

10.2. The Customer will ensure at all times that only competent and (where appropriate) properly qualified, trained and licensed personnel, using appropriate methods and standards of operation, are permitted to operate the Plant and Equipment.

11. MAINTENANCE OF PLANT AND EQUIPMENT

11.1. The Customer will be fully and solely responsible for any Loss or damage to the Plant and Equipment in excess of normal wear and tear, and will notify BHE in writing and will pay for any Loss of or damage to the Plant and Equipment, however occasioned (fair wear and tear only excluded).

11.2. The Customer must, at their own expense and for the duration of the hire period, ensure they take adequate steps to avoid damage to the Plant and Equipment and it remains in a state of repair suitable for its intended use.

12. PLANT AND EQUIPMENT FAILURE

If the Plant and Equipment becomes unsafe, damaged, or not in working order, the Customer must immediately stop using it and notify BHE. The Customer will not attempt to repair the Plant and Equipment without BHE’s consent and will return it to BHE’s premises if requested. If the failure is due to reasonable wear and tear and not caused by the Customer’s negligence or misuse, BHE, at its discretion, agrees to:

(a) Repair the plant and equipment at the Customers location; and/or

(b) Make similar plant and equipment available, and/or

BHE shall in no circumstances be liable for any loss sustained by the Customer.

13. EXTENSION OF HIRE TERM

13.1. If the Customer wishes to extend the Hire for a further period, it may make a written request to BHE prior to the expiry of the Term, and BHE will endeavour to notify the Customer in writing not later than the expiry of the Term whether or not BHE agrees to grant that request and, if so, at what Hire Rate.

13.2. If BHE has not given the Customer its written response by the expiry of the Term, the Agreement will continueon the current terms and conditions until BHE gives its written response and BHE may without limitation:

(a) advise the Customer that the Plant and Equipment must be delivered up in accordance with Clause 14.1; or

(b) send the Customer a new quotation for the requested extended term.

14. DEFAULT AND TERMINATION

14.1. Consequences of default If a payment default occurs, BHE may at its option do any one or more of the following:

(a) terminate the Agreement and the Customer’s right to possession of the Plant and Equipment;

(b) Initiate court proceedings as deemed appropriate to enforce the Customer’s obligations or for other remedies; and

15. RETURN OF EQUIPMENT

15.1. Delivery-up of Equipment by the Customer

(a) Upon the expiry or earlier termination of the Agreement, the Customer must at its own expense immediately deliver up the Plant and Equipment to BHE’s Premises or as otherwise directed in writing by BHE.

(b) The Customer will return the Plant and Equipment in accordance with clause 4.7, and if upon the return of the Plant and Equipment, BHE determines that the Customer has failed to observe the provisions contained herein, the Customer will pay the costs of any repairs and extraordinary cleaning determined by BHE to be necessary.

(c) Notwithstanding the expiry of the Term or earlier termination of the Agreement under Clause 8.2, the Plant and Equipment will remain on Hire at the Hire Rate then current until they are cleaned and any repairs (other than in relation to fair wear and tear) are completed and the Plant and Equipment is able to be re-hired.

(d) Without limiting in any manner whatsoever any other indemnity given by the Customer under the Agreement, the Customer will indemnify BHE and hold it harmless in respect of all costs and expenses which BHE may incur or suffer arising out of any failure or default in respect of the Customer obligations under this Clause 15 including without limitation any cleaning and maintenance required in respect of the Plant and Equipment (other than in relation to fair wear and tear) after their return by the Customer.

16. RECOVERY OF EQUIPMENT

16.1. If, pursuant to Clause 15.1, the Customer does not return the Plant and Equipment to BHE as and when required, BHE may retake possession of the Plant and Equipment, and BHE and its employees and agents may for this purpose, without notice, liability or legal process, enter upon or into the Customer’s site or any other premises where the Plant and Equipment are located.

16.2. The Customer must ensure that BHE has access to such premises and must indemnify BHE against any claims, damages, or losses arising out of or in connection with the exercise of this right of entry, except to the extent caused by BHE’s negligence or misconduct.

17. NO DEALING WITH EQUIPMENT

The Customer must not without BHE written consent:

(a) assign, sublet, lend, pledge, mortgage, let on hire or otherwise part or deal with any of the Plant and Equipment and any part thereof, or agree with or offer to any person or company, or attempt or purport, to do any of the foregoing; or

(b) modify or alter any of the Plant and Equipment or any part thereof or make any addition thereto, except as previously agreed in writing by BHE, or remove, change, alter or deface any name, name plate, identification number, trade mark or any other identifying mark or number on the Plant and Equipment.

18. DISPUTE RESOLUTION

18.1. If a dispute arises out of or relates to this agreement, including any dispute as to breach or termination of the agreement or as to any claim in tort, in equity or pursuant to any statute, neither party may commence any court or arbitration proceedings relating to the dispute unless they have complied with this clause except where they seek urgent interlocutory relief.

18.2. Notice specifying the nature of the dispute

(a) The party to this agreement claiming that a dispute has arisen under or in relation to this agreement must give written notice to the other party to this agreement specifying the nature of the dispute.

(b) On receipt of the notice referred to in this clause by that party, both parties must endeavour to resolve the dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation, determination or similar techniques agreed by them.

18.3. Mediation

(a) If the contractor and the principal do not agree within 7 days of receipt of the notice, or such further period as agreed in writing by them, as to:

(i) The dispute resolution technique and procedures to be adopted;

(ii) The timetable for all steps in those procedures; and

(iii) The selection and compensation of the independent person required for such technique,

(b) then they must mediate the dispute in accordance with the mediation rules of the recognised professional association for solicitors in the State of Queensland.

(c) The president of this professional association or the president's nominee will select the mediator and determine the mediator’s remuneration.

18.4. Proceedings

If the mediation referred to above is not completed within four weeks of reference to a mediator then either party may commence any court or arbitration proceedings relating to the dispute as they see fit.

18.5. Associated costs

The costs of the mediation will be borne equally by the parties.

19. GENERAL

19.1. The Agreement will be construed in accordance with the laws of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts of New South Wales.

19.2. If any provision of the Agreement or these Terms and Conditions is invalid, void, illegal or unenforceable that provision is severed to the minimum extent required by the law and the validity, existence, legality and enforceability of the remaining provisions are not affected, prejudiced or impaired.

19.3. BHE is under no liability whatsoever to the Customer for any Loss suffered by the Customer arising out of a breach by BHE of the Agreement or these Terms and Conditions;

19.4. In the event of any breach of the Agreement or these Terms and Conditions by BHE, the remedies of the Customer are limited to damages which under no circumstances will exceed the Hire Charge of the Plant and Equipment;

19.5. The Customer is not entitled to set-off against or deduct from the Hire Charge any sums owed or claimed to be owed to the Customer by BHE;

19.6. Neither party is liable for any breach of this agreement due to any force majeure, war, terrorism, strike, lock-out, industrial action, fire, flood, drought, storm or other event beyond the reasonable control of either party.

19.7. The failure of BHE to enforce any provision of the Agreement or these Terms and Conditions is not a waiver of that provision (unless specifically waived in writing and signed by BHE) nor does it affect BHE’s right to subsequently enforce that provision

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