08 6166 2400
Terms of Service
Iron Mine Services Pty Ltd ACN 608 402 446
of Suite 7, 43 Cedric Street, Stirling Western Australia 6021 (
The party who accepts a Purchase Order connected to these Terms and Conditions
Terms and Conditions (
These Terms and Conditions version 3 apply to any Purchase Order issued by Company to Contractor after on or after 01/01/2018 and until amended or replaced by Company and notified to Contractor. These Terms and Conditions apply to the absolute exclusion of any Terms and Conditions attaching to any quotation or estimate of Contractor and the Contractor will be deemed to have accepted these Terms and Conditions if the Contractor confirms acceptance of a Purchase Order or if the Contractor commences supply of the Goods or Services the subject of the Purchase Order.
Each Purchase Order accepted by the Contractor will form a separate contract with Company.
1. Definitions and Interpretation
In a Contract, unless the contrary intention appears:
Access Date is the date specified in the Purchase Order.
Background IP means any Intellectual Property Rights which:
are in existence as at the date of a Contract; or
come into existence after the date of a Contract otherwise than in connection with a Contract.
means any day other than a Saturday, Sunday or public holiday in the State.
Claim means any action, suit, proceeding or demand of any kind.
Commissioning includes checking the operational availability of each item, checking all manual and automatic contacts and interlocks, no-load commissioning, full-load commissioning, testing to demonstrate performance in accordance with the Scope Schedule and any other actions which are described in Scope Schedule, or otherwise agreed in writing by the Parties, as being part of Commissioning.
Company Representative means the person identified as the Company Representative as identified by the Company from time to time.
Confidential Information means the terms of a Contract and any business, financial, marketing, technical or scientific information or data relating to or connected with a Party, its business or any of its Related Bodies Corporate.
means any loss that does not arise naturally or in the ordinary course of things, and includes any such loss which is:
loss of profit;
loss of expected savings;
loss of business (including loss or reduction of goodwill);
damage to reputation; and
loss or corruption of data.
a Contract means a contract formed between the Company and the Contractor (governed by these Terms and Conditions) following the acceptance by the Contractor of a Purchase Order from the Company.
Contractor Representative means the person identified as the Contractor Representative in by the Contractor from time to time.
Corporations Act means the Corporations Act 2001 (Cth).
has the meaning given in clause 25.
Defective Goods means Goods which do not conform with a Contract.
Defective Services means Services which do not conform with a Contract.
means the schedule prescribed in a Purchase Order.
Delivery Date means:
for Goods, the date for delivery of the Goods as set out in the Delivery Schedule; and
for Services, the schedule for delivery of the Services as set out in the Delivery Schedule.
Delivery Point is set in the Purchase Order.
Drawings means the drawings (if any) referred to the Scope Schedule and any modifications of such drawings notified to the Contractor by the Company Representative and includes such other drawings as may from time to time be supplied to the Contractor by the Company Representative for the purposes of a Contract and any of the Contractor's drawings approved by the Company Representative.
means a failure to make a payment when due under a Contract.
Force Majeure Event
means any event or circumstance, or combination of events and circumstances, that is beyond the control of the party affected (the
) and causes or results in an inability on the part of the Affected Party to perform any of its obligations under a Contract (other than the obligation to pay money), and whose effects the Affected Party could not reasonably have been expected to have ameliorated, avoided or overcome by the exercise of a standard of foresight, planning, care and diligence consistent with that expected of a prudent and competent person in similar circumstances.
Goods means any goods specified in the Scope Schedule.
Government Agency means any government or governmental, semi-governmental, administrative, municipal, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Gross Negligence means any act or failure to act which, in addition to constituting negligence, was in reckless disregard of or wanton indifference to the consequences.
GST has the meaning given to that term in the GST Act.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
means all relevant legislation relating to health and safety, including the Mines Safety and Inspection Act 1994 (WA), the Occupational Safety and Health Act 1984 (WA) and any other applicable legislation relating to health and safety on any Site, and the attendant written laws, codes of practice or safety standards made pursuant to those Acts.
means, in respect of a person:
a "controller" (as defined in section 9 of the Corporations Act), administrator or similar officer being appointed in respect of that person or any asset of that person;
a liquidator or provisional liquidator being appointed in respect of that person;
an application (not withdrawn or dismissed within 7 days) being made to a court for an order, an order being made, a meeting being convened or a resolution being passed, for the purpose of:
appointing that person referred to in paragraph (a) or (b) of this definition;
winding up or deregistering that person; or
proposing or implementing a scheme of arrangement, other than a solvent scheme of arrangement, pursuant to Part 5.1 of the Corporations Act;
any application (not withdrawn or dismissed within 7 days) being made to a court for an order, a meeting is convened, a resolution being passed or any negotiations are commenced, for the purpose of implementing or agreeing:
a moratorium of any debts of that person;
any other assignment, composition or arrangement (formal or informal) with that person's creditors; or
any similar proceeding or arrangement by which the assets of that person are subjected conditionally or unconditionally to the control of that person's creditors or a trustee,
or any agreement or other arrangement of the type referred to in this paragraph (d) of this definition being ordered, declared or agreed to;
as a result of the operation of section 459F(1) of the Corporations Act, that person being taken to have failed to comply with a statutory demand (as defined in the Corporations Act);
any writ of execution, garnishee order, mareva injunction or similar order, attachment, distress or other process being made, levied or issued against or in relation to any asset of that person;
anything analogous to anything referred to in paragraphs (a) to (f) of this definition, or which has a substantially similar effect, occurs with respect to that person under any law of any jurisdiction; or
that person being, or admitting in writing that it is, or being declared to be, or being taken under any applicable law to be (for any purpose), insolvent or unable to pay its debts.
Intellectual Property Rights means (in the context of a Party) all industrial and intellectual property rights whether protectable by statute, at common law or in equity, including all copyright and similar rights which may subsist or may hereafter subsist in works or any subject matter, rights in relation to inventions (including all patents and patent applications), trade secrets and know-how, rights in relation to designs (whether or not registerable), rights in relation to registered or unregistered trademarks, circuit layout designs and rights in relation to circuit layouts, but excludes non-assignable moral rights and similar non-assignable personal rights of authors and producers.
the present or future requirements of any statute, regulation, order, rule, subordinate legislation, common law, equity or other document enforceable under any statute, regulation, rule or subordinate legislation, common law or equity; and
the lawful requirements, directions or instructions of any Government Agency.
Liabilities means damages, Claims, losses, liabilities, costs and expenses of any kind (including legal costs on a full recovery basis).
Manufacturer Warranties has the meaning given in clause 5(a).
means a Default that it is not a Financial Default.
Party means a party to a Contract, being the Company and the Contractor.
in relation to the Contractor, any of its employees, Sub-contractors (including Sub- contractors’ employees, agents or representatives), agents and representatives involved in the performance of the Supply; and
in relation to the Company, any of its past or present officers, employees, agents or representatives.
PPSA means the Personal Property Securities Act 2009 (Cth).
Price means the price or the rates specified in a Contract for the supply of Goods and/or Services (as the case may be) as detailed in the relevant Purchase Order
is the owner or occupant of the Site (and may be the Company, or a party to whom the Company is providing Goods and/or Services)
Principal's Policies and Rules
means the Principal's polices, standards and rules of conduct and operation applicable to the Supply or the Site, as updated from time to time and notified and provided to the Contractor.
Project IP means all Intellectual Property Rights (present or future) created, discovered or coming into existence as a result of, for the purpose of, or in connection with the Supply of Goods and/or Services (including all Intellectual Property Rights developed by the Contractor in supplying the Goods and/or Services and any Intellectual Property Rights created or discovered by the Contractor in Technical Materials provided by the Contractor to the Company).
Purchase Order means an order (whether in writing or otherwise) from the Company and accepted by the Contractor, for the supply of Goods and/or Services by the Contractor to the Company, but does not include an express written agreement between the Company and the Contractor which expressly and directly excludes these Terms and Conditions.
Related Body Corporate has the meaning given in the Corporations Act
is 48 hours
Representative means, as applicable, the Company Representative or the Contractor Representative.
means that part of the Purchase Order entitled “Scope Schedule” and setting out the Goods and / or Services to be supplied by the Contractor.
Security Interest has the meaning given by section 12 of the PPSA.
Services means any services specified in the Scope Schedule.
Site means the Principal's premises as identified in the Purchase Order
State is Western Australia
Sub-contractor means any person engaged by the Contractor in accordance with
lause 2 to perform all or any part of the Supply on behalf of the Contractor.
Supply means the provision of Goods and/or Services in accordance with a Contract.
Taxes means any and all present and future sales, use, personal, property, real property, value added, goods and services, GST, turnover, stamp, documentary, interest equalisation, business, occupation, excise, income, payroll, corporation, profits, gains, gross receipts, or other taxes, fees, withholdings, imposts, levies, duties or other charges or fees of any nature whatsoever or whensoever imposed (other than taxes on the Company's net income) by any government, governmental, semi-governmental or other relevant authority, together with any penalties, fines or interest thereon or similar additions thereto, imposed, levied or assessed or otherwise payable.
Technical Materials includes plans, designs, Drawings, engineering information, data, specifications, reports, accounts and any other material specified in a Contract.
Terms and Conditions means these terms and conditions for the supply of Goods and/or Services.
Time Schedule means the dates or times identified in the Delivery Schedule for the delivery of the Goods and/or Services
including any amendments to it in accordance with clause 8.
Variation means a change to the scope of the Supply (including the removal of part of any Goods and/or Services).
Warranty Period is 12 months
Headings are for convenience only and do not affect interpretation. The following rules apply unless the context requires otherwise.
(a) The singular includes the plural, and the converse also applies.
(b) A gender includes all genders.
(c) If a word or phrase is defined, its other grammatical forms have a corresponding meaning.
(d) A reference to a person includes a corporation, trust, partnership, unincorporated body or other entity, whether or not it comprises a separate legal entity.
(e) A reference to a party to a Contract or another contract or document includes the party's successors, permitted substitutes and permitted assigns (and, where applicable, the party's legal personal representatives).
(f) A reference to a clause, schedule or annexure is a reference to a clause of, or schedule or annexure to a Contract.
(g) A reference to a contract or document (including a reference to a Contract) is to the contract or document as amended, supplemented, novated or replaced, and includes the recitals, and schedules and annexures to that contract or document.
(h) A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it.
(i) A reference to conduct includes an omission, statement or undertaking, whether or not in writing.
(j) A reference to dollars and $ is to Australian currency.
(k) A reference to 'including', 'includes' or 'include' must be read as if it is followed by '(without limitation)'.
(l) All measurement of physical quantities used in the provision of the Supply must be in Commonwealth legal units of measurement.
(m) A Contract is not to be interpreted against the interests of a Party merely because that Party proposed a Contract or some provision of it or because that Party relies on a provision of a Contract to protect itself.
2. Contractor's representations and warranties
The Contractor represents and warrants to the Company:
(a) the Supply will be provided in accordance with all applicable Laws;
(b) it has and at all times will have the necessary certificates, permits, licences, approvals and consents necessary in order to perform the Supply;
(c) it will perform the Supply with the particular skill, care and diligence that would be expected of a contractor experienced in activities of a similar nature to the Supply and by appropriately qualified and trained personnel with due care and skills;
(d) the Price includes allowance for all matters and risks which might impact on the Contractor's ability to perform the Supply in accordance with the requirements of a Contract; and
(e) if the Contractor is entering into a Contract as a trustee of a trust:
(i) it is the only trustee of the trust and has full and unfettered power under the terms of the deed establishing the trust to enter into and be bound by a Contract on behalf of the trust and a Contract is being executed and entered into as part of the due and proper administration of the trust and for the benefit of the beneficiaries of the trust; and
(ii) it has a right to be fully indemnified out of the trust assets in respect of obligations incurred by it under a Contract and the assets of the trust are sufficient to satisfy that right of indemnity and all other obligations in respect of which it has a right to be indemnified out of the trust assets;
The Contractor represents and warrants to the Company in respect of any Goods:
(a) the Goods will comply with all applicable Laws, be in accordance with the Scope Schedule and any applicable standards set by
(b) it has complete ownership of the Goods free of any Security Interest, mortgage, lien, charge or encumbrance, and will provide the Goods to the Company on that basis;
(c) the Goods will be fit for the purpose for which goods of the same kind are commonly acquired, and for any other purpose specified in a Contract; and
(d) the Goods will be new and of merchantable quality.
The Contractor represents and warrants to the Company in respect of the provision of any Services:
(a) the Services and the results of those Services will be in conformity with a Contract and of high quality and workmanship;
(b) the Services will be performed by appropriately qualified and trained Personnel and with due care and skill;
(c) the Services will be fit for the purposes for which those type of services are commonly acquired, and for any other purposes specified in a Contract; and
(d) any items, which the Contractor uses, or supplies in conjunction with the Services will comply with any applicable standards of Standards Australia, and any other standards specified in a Contract, and be in safe working condition.
The Contractor expressly acknowledges and agrees that any review/approval by the Company or the Company Representative of any Drawings does not relieve the Contractor of any Liabilities or obligations under this Agreement.
Each contract formed by the acceptance of a Purchase Order shall operate for so long as is necessary to deliver the goods and/or services set out in that Purchase Order and to give full force and effect to the Contractor’s further obligations set out in these Terms and Conditions.
3.2 Place and Time of Delivery
The Contractor must deliver those Goods prescribed in a Purchase Order to the Delivery Point and Services described in a Purchase Order to the Site, in accordance with the Delivery Schedule or by the Delivery Date prescribed in that Purchase Order.
(a) If access to the Site is required by the Contractor for the provision of the Supply, the Company will grant to the Contractor access to the Site on and from the Access Date. The Contractor acknowledges that the Company may require the agreement of the Principal in order to grant the Contract access to the Site.
(b) The Contractor must give the Company Representative at least seven (7) days' notice before commencing the Supply on the Site.
(c) The Contractor acknowledges that if it enters on to the Site, it does so at its own risk. The Contractor must also ensure that each of its Personnel is aware that they enter onto the Site at their own risk.
(d) A temporary prevention or hindrance to the Contractor's ability to gain access to the Site by reason of:
(i) a direction of the Principal;
(ii) a direction of the Company; or
(iii) inclement weather,
does not constitute a breach of a Contract.
5. Manufacturer Warranties
(a) The Contractor shall obtain, at its cost, manufacturer and trade warranties (
) from the original manufacturer of any goods that are incorporated into the Goods, which inure to the benefit of the Company.
(b) The terms and conditions of Manufacturer Warranties shall be no less favourable than those generally prevailing in the manufacturing industry for the goods that are incorporated into the Goods.
(c) The Company may at any time request that the Contractor provide evidence of any warranties obtained in accordance with this clause 5.
(d) The Manufacturer Warranties do not in any way limit the obligations and warranties of the Contractor under a Contract or at common law.
6. Contractor's Investigations
(a) The Contractor acknowledges that prior to entering into a Contract to the extent that the Contractor requires access to the Site:
(i) the Company provided the Contractor with every opportunity for inspecting the Site; and
(ii) the Contractor is deemed to have fully examined all documents provided to it by the Company.
(b) The Company does not warrant or guarantee the accuracy or sufficiency of any information obtained by, or provided by it to, the Contractor.
(c) The Company makes no representation or warranty with respect to the Site, the conditions of the Site or the adequacy of the Site for use by the Contractor in the provision of the Supply.
(d) The Contractor agrees that it has satisfied itself as to the accuracy of any information, including any Drawings, provided to it prior to the execution of a Contract.
(a) Each Party will liaise with the other Party's Representative in respect of all matters relating to a Contract.
(b) The Company Representative is responsible for giving directions for and on behalf of the Company as provided in a Contract.
(c) The Contractor Representative will have full power to legally bind the Contractor in respect of all matters arising out of a Contract and any direction given by the Company Representative to, or any document signed by, the Contractor Representative is deemed to have been given to, or signed by, the Contractor and will bind the Contractor.
(d) A Party must notify the other Party in writing of any changes to its Representative.
8. Title and Risk
Title to the Goods passes to the Company upon the acceptance of the Goods by the Company in accordance with clause 9. Until unencumbered title in any Goods of the Contractor on the Site from time to time passes to the Company, the Contractor grants to the Company a Security Interest in those Goods as security for the performance of the Contractor’s obligations under this Agreement. The Company may perfect its Security Interest by way of possession and to the extent permitted by law, the Contractor waives its right to receive any notice required by the PPSA.
Risk in each Good will remain with the Contractor until its acceptance by the Company in accordance with clause 9.
9. Acceptance of the Goods and/or Services
(a) When the Contractor considers that the Goods have been delivered and/or the Services have been performed, the Contractor must provide the Company's Representative and the Company with notice of this fact.
(b) The Company will not be deemed to have accepted any Goods or Services until it has had a reasonable time to:
(i) in relation to Goods – inspect the Goods after delivery; and
(ii) in relation to Services - inspect and test the results of the Services after performance.
The signing of delivery receipts before inspection and/or testing does not constitute acceptance of the Goods or the Services.
(c) If, upon inspection and/or testing, the Company finds any Goods or any Services to be Defective Goods or Defective Services, as applicable, the Company may:
(i) reject the Defective Goods or the Defective Services, as applicable, by giving notice to the Contractor and include within such notice a date by which the Defective Goods or the Defective Services must be made good or replaced or re-performed, as applicable; and/or
(ii) subject to clause 9(d), if the Contractor does not make good or replace the Defective Goods or re-perform the Defective Services within the time period specified in the Company's notice under clause 9(c)(i), the Company may (but has no obligation to) make good the Defective Goods or the Defective Services.
(d) If, in the Company's reasonable opinion, it is necessary to immediately re-perform or make good the Defective Goods or Defective Services, then the Company has no obligation to give the Contractor an opportunity to re-perform or make good the Defective Goods or Defective Services before the Company does so.
(e) At the Company's option and request, the Contractor agrees to:
(i) refund to the Company any payments made by the Company in respect of any Defective Goods and any Defective Services that the Company rejects (and, in the case of Defective Goods, reimburse the Company for any costs it incurred in returning the Defective Goods to the Contractor); or
(ii) make good or re-perform (as applicable) free of charge any Defective Goods or any Defective Services; or
(iii) reimburse the Company for any expenses the Company incurs in making good or re-performing any Defective Goods and/or any Defective Services under clause 9(c) and clause 9(d).
(f) The Company's inspection, testing or acceptance of some or all of the Goods or Services does not in any way:
(i) change or affect the Contractor's obligations under a Contract; or
(ii) affect the Company's rights to claim for any damage or loss the Company may suffer because of the Contractor's breach of warranty or failure to fulfil any of its other obligations under a Contract.
(g) If the Company accepts some Goods or some Services from the Contractor which do not comply with the terms of a Contract, such decision does not bind the Company to accept the future supply of Goods or the future performance of Services which do not comply with the terms of a Contract.
(h) If the Company is satisfied that the Goods delivered and/or Services performed conform with a Contract, the Company's Representative must give notice to the Contractor that the Goods and/or Services have been accepted.
(a) The Company must pay the Contractor the Price, which is the aggregate amount payable by the Company to the Contractor in relation to the Supply.
(b) The Price is inclusive of:
(i) all expenses, including charges for packaging, insurance and delivery or performance of the Supply, travel and subsistence expenses and any items used or supplied in conjunction with the Supply, in accordance with a Contract; and
(ii) all applicable Taxes (excluding GST).
(c) Other than expressly set out in a Contract, the Price will not be increased without the Company's prior written consent.
11. Invoicing and Payment
11.1 Submission and Payment of Invoices
(a) The Contractor must submit invoices to the Company by the 7
day of each calendar month for the Supply performed in the previous calendar month (“the Service Month”).
(b) The invoices rendered under cause 11.1(a) must be in a format acceptable to the Company and must set out particulars of all Supply performed, the amount payable by the Company under a Contract and the calculations by which each invoice was calculated and all necessary supporting data and substantiation.
(c) The Company must pay the amount of each invoice rendered under cause 11.1(a) within 20 Business Days of its receipt or 45 days from the last day of the Service Month, whichever is the later
(d) The making of any payment to the Contractor may not be taken or construed as proof or admission of the Supply or any part thereof having been performed to the satisfaction of the Company but is only to be taken as a payment on account.
(e) The Company may deduct from any money due or becoming due to the Contractor pursuant to a Contract:
(i) all debts, damages, costs, expenses or any other moneys due and owing from the Contractor or its Sub-contractors to the Company under or by virtue of any provision of a Contract, the performance or non-performance of the Supply or the Contractor’s presence on the Site; and
(ii) all costs, losses, charges, damages, liquidated sums and expenses which the Company may have paid or incurred and which or for which the Contractor or its Sub-contractors, employees or agents is or are then liable to bear, pay or make reimbursement to the Company.
(f) If any deductions have been made with any payment of an invoice, the Company must state on what basis any deductions have been made. Neither that statement nor any omission to make that statement may be taken as an admission of any kind by the Company that any amounts so paid are due and payable, nor an admission of any kind or that where a deduction is made by the Company in respect of any tax or similar charge that the tax or similar charge is due and payable by the Contractor, nor that any deductions made represent the full extent of the Company's entitlement to make deductions. The Parties' rights on both counts are reserved despite the payment statement.
(g) If the Company is required by written law to deduct any Taxes from any payment due to the Contractor, the Contractor authorises this deduction and agrees that payment to the appropriate government department of the amount deducted will constitute good and full payment by the Company to the Contractor of an equivalent amount.
(h) If the Construction Contracts Act 2004 (WA) (or any corresponding legislation of any state or territory) applies to a Contract, then:
the Price Schedule provides the means by which the amount that the Contractor is entitled to be paid for the obligations the Contractor performs under a Contract is to be determined for the purposes of section 14 of that Act;
an invoice rendered by the Contractor to the Company under cause 11.1(a) is a payment claim for the purposes of sections 15 and 16 of that Act;
this clause 11.1 sets out when and how the Company is to respond to a claim for payment made by the Contractor for the purposes of section 17 of that Act; and
this clause 11.1 sets out the time by when payments of amounts claimed by the Contractor must be made by the Company the Contractor for the purposes of section 18 of that Act.
11.2 Currency of payment
Any money payable under a Contract is to be paid in Australian Dollars.
If any money due to either Party remains unpaid after the due date for its payment, then interest is payable at 3.5% per annum above BBSW on the amount so due but unpaid from but excluding the due date until and including the date of payment.
A Contract is not evidence of, nor does it create, an exclusive relationship between the Company and the Contractor in respect of the supply of any Goods or Services.
12. Plant & Equipment
(a) The Contractor agrees to supply, at its own expense, all labour, plant, equipment, tools, appliances or other property and items required to fulfil its obligations under a Contract.
(b) Any plant, equipment, tools, appliances or other property and items that the Company provides to the Contractor under a Contract remain the Company's property and must only be used for the purpose of fulfilling the Contractor's obligations under a Contract.
13. Packaging and delivery of Goods
(a) The Contractor must ensure that the Goods are properly packed and delivered in accordance with the Law and the requirements of the Delivery Schedule.
(b) The Contractor must include a packing list in each package of Goods delivered to the Company, which must specify the contents of each such package.
The Contractor must deliver the Goods to the Delivery Point in accordance with a Contract.
(a) The Contractor must provide to the Company at its request:
(i) copies of all Technical Materials;
(ii) progress reports setting out in such detail as the Company requests, the different stages of design, manufacture and testing of the Goods; and
(iii) a detailed program for the projected supply of the Goods and Services.
(b) The Contractor must inform the Company of any changes likely to affect the program provided to the Company pursuant to clause 14(a)(iii).
(c) The Company has the right, at reasonable times and with reasonable notice, to inspect, examine and witness tests on the Goods or the performance of the Goods and Services at the Contractor's premises and at the premises of any of the Sub-contractors.
(d) The Contractor must ensure that the Company is provided with access to the Contractor's and Sub-contractors' premises (including the right to inspect any equipment used in measuring the Goods at any time up to 12 months after the measurement of the Goods occurs), for the purposes of clause 14(c).
(e) The Contractor must give the Company Representative not less than ten (10) days' prior notice of the date the Goods will be ready for delivery, final inspection or for performance tests prior to delivery.
(f) Any review, inspection, examination or witnessing of testing that the Company undertakes prior to delivery of the Goods and/or Services does not relieve the Contractor of its responsibilities under a Contract.
15. Testing and Commissioning
The Contractor must conduct tests of the Goods or parts of the Goods in accordance with the Scope Schedule and otherwise as required in accordance with the relevant standards set by Standards Australia and any applicable industry codes or, where there are no such standards or codes, in accordance with generally accepted practices.
15.2 Cost of testing
In addition to the Company's rights as set out in clause 14, the Company Representative may conduct such tests of the Goods as it deems reasonably necessary. The costs of tests carried out by the Company Representative and the costs of tests that are not provided for in Scope Schedule but are carried out by a testing authority employed by the Contractor at the direction of the Company Representative, will be borne by the Company. The costs of all other tests will borne by the Contractor.
15.3 Notice of testing
The Party obliged to carry out a test or requiring a test to be made must give the other Party not less than seven (7) days' notice of the date on which the test will be made. The test must be commenced on the date notified provided that the test does not, or is not likely to, in the reasonable opinion of the Company Representative, interfere with or interrupt the Company's operations in which case the Company Representative may direct that the test be performed at another time.
15.4 Consequences of failure to test
(a) If the Contractor fails to carry out any test within the time prescribed in a Contract or if no time is prescribed, a reasonable time, then the Company Representative may, at the Contractor's cost, conduct such tests.
(b) The Contractor acknowledges that if the Company Representative tests the Goods before use in accordance with this clause 15 this will not relieve the Contractor of any of its obligations under a Contract.
(c) The approval of any of the Goods following any test in no way relieves the Contractor from any of its obligations under a Contract.
15.5 Test results
The Contractor must prepare and submit to the Company Representative test results upon completion of a test.
15.6 Contractor responsible for Commissioning
The Contractor is responsible, unless otherwise provided in a Contract, for the supervision of any and all Commissioning required in accordance with a Contract to be performed to the satisfaction of the Company Representative. The Contractor must provide the Company with reasonable notice before the time of Commissioning of any Good and must at all times comply in full with the recommendations of the manufacturer of any Goods in relation to such Commissioning.
16. Site safety
(a) The Contractor must:
(i) make itself aware of and comply with, and ensure that the Contractor’s personnel are aware of and comply with, all:
A. applicable written laws (including the HSE Legislation) and industrial awards and agreements; and
B. of the Principal's Policies and Rules; and
(ii) provide the Supply in a safe manner and use its best endeavours to achieve zero lost time injuries.
(b) If applicable written laws apply different standards or qualities from those required by the Principal's Policies and Rules in respect of health, safety and security, the Contractor must comply with the most stringent requirement.
(c) If the Contractor's personnel do not comply with all applicable written laws and, or, the Principal's Policies and Rules while on the Site, then upon being requested in writing by the Company or the Company's Representative, the Contractor must:
(i) correct the non-compliance promptly;
(ii) take any necessary steps to avoid it happening again; and
(iii) at the direction of the Company, remove the person or applicable Contractor's Personnel responsible for the non-compliance from the Site by no later than 24 hours after the direction is given.
16.2 Incident notification and provision of documents
(a) If the Contractor has an accident or occurrence concerning any aspect of the Supply provided in accordance with a Contract which accident or occurrence is required in accordance with the Mines Safety and Inspection Act 1994 (WA) or the Occupational Safety and Health Act 1984 (WA) to be notified to the Department of Mines and Petroleum or Worksafe WA, the Contractor must immediately give notice to the Company of the accident or occurrence.
(b) If requested to do so by the Company or the Principal, and subject to any applicable legal professional privilege or privacy obligations, the Contractor must give all other documents relevant to the incident the subject of the notice referred to in clause 16.2(a) and also authorise the Company and Principal and its representatives or agents to conduct interviews with the Contractor's employees and sub-contractors regarding all matters relevant to the incident.
(c) In addition to clause 16.2(b), within 24 hours of an actual occurrence or incident, the Contractor must also give notice to the Company of any accident, injury, loss or damage of any kind which occurs whilst Supply are provided in accordance with a Contract.
17. Warranty Period
17.1 Warranty Period
At any time during the Warranty Period the Company may direct the Contractor to promptly remedy any Defective Good and/or Defective Service at the Contractor’s cost by either repairing or replacing the Defective Good and/or re-performing or making good the Defective Service, at the sole discretion of the Company.
17.2 The Company’s right to remedy
If the Contractor does not remedy any Defective Good or Defective Service within the Repair Period, the Company may engage others to repair or replace the Defective Goods and/or re-perform and make good the Defective Services. The reasonable costs incurred by the Company in doing so will be a debt due and payable by the Contractor to the Company.
18. Compliance with Laws
The Contractor must:
(a) comply with all applicable Laws relating to its obligations under a Contract and ensure that each of its Personnel does the same; and
(b) in relation to the provision of the Supply, at its cost:
(i) obtain all necessary approvals, licences, permits, etc;
(ii) give all necessary notices; and
(iii) pay all necessary fees, deposits and Taxes,
and, if requested by the Company, provide reasonable evidence of the matters referred to above.
19. Co-operation with Third Parties
19.1 No Interference
The Contractor must not impede or interfere with the work of the Principal, any other contractors or their personnel on the Site.
19.2 No compensation
The Contractor is not entitled to any increase in the Price, damages, costs or any other financial or other compensation as a result of any interference on the Site from other suppliers, contractors or personnel.
20. Force Majeure
20.1 Event of Force Majeure
If a Party is prevented in whole or in part from carrying out its obligations under a Contract as a result of Force Majeure, it must promptly give a notice to the other Party that:
(a) specifies the obligations the Party cannot perform;
(b) describes the event of Force Majeure; and
(c) advises the period of time during which the affected Party estimates that it will not be able to perform its obligations.
20.2 Suspension of Obligations
Following the notice referred to in clause 1, and while the Force Majeure continues the affected Party’s obligations which cannot be performed because of the Force Majeure will be suspended:
20.3 Obligations of Affected Party
A Party affected by Force Majeure must:
(a) take all reasonable steps to avoid, remove or limit the effects of the Force Majeure on its performance of the suspended obligations as quickly as possible; and
(b) promptly recommence performing the suspended obligations as soon as reasonably possible.
A Party is not required, under this clause 20, to settle any state-wide or national strikes or state-wide or national industrial action against its will.
If an event of Force Majeure occurs and its effect continues for a period of thirty (90) days, the Company may terminate a Contract by giving written notice to the Contractor.
21.1 Suspension by Company
(a) The Company has the right, at any time and for any reason, to suspend a Contract or any part of a Contract by giving the Contractor not less than seven (7) days’ notice.
(b) When the Contractor receives a notice of suspension from the Company, the Contractor must suspend the performance of its obligations under a Contract from the time and date specified in the notice until such time as the Company directs that a Contract is no longer suspended. At such time, the Contractor must promptly recommence the performance of its obligations under a Contract.
(c) Where the suspension of a Contract is not a result of any default or action of the Contractor or its Personnel, the Company will reimburse the Contractor for the reasonable costs incurred by the Contractor as a direct consequence of the suspension, provided those costs are verified.
21.2 Suspension by Contractor
If the Company does not cure a Financial Default within the relevant Cure Period (as set out in clause 25.1), the Contractor may, as an alternative to terminating a Contractor under clause 25.2(b), suspend the Supply immediately until payment is made in full.
(a) The Contractor must effect and maintain the following insurances for the duration of the Term:
(i) public and third party liability insurance with an overall limit of twenty million dollars ($20,000,000) for any one occurrence and unlimited in any period of insurance in respect of:
A. damage to any real or personal property of the Contractor and the Company; and
B. injury or death to any person,
arising out of provision by the Contractor or its Sub-contractors of the Supply; and
(ii) property damage liability insurance covering all Contractor supplied plant and equipment; and
(iii) workers' compensation insurance in accordance with the requirements of the applicable written law.
(b) At the Company's request, the Contractor must produce evidence that the Contractor is maintaining the insurances required by this clause 22.
23. Liability and Indemnities
23.1 Contractor's indemnity
The Contractor indemnifies the Company and the Company's Personnel against any loss and/or Claims suffered or incurred by the Company or the Company's Personnel in connection with any act or omission by the Contractor or the Contractor’s Personnel arising from or in connection with the performance or non-performance of the Contractor’s obligations under a Contract, including any:
(a) breach of contract;
(b) tort, including negligence, or breach of Law; and
(c) breach of equitable duty, including breach of confidentiality or breach of fiduciary duty.
23.2 Third Party Claims
The Contractor indemnifies the Company and the Company's Personnel against any loss and/or Claim suffered or incurred in connection with any Claim by a party other than the Contractor against the Company or the Company's Personnel arising from or in connection with the performance or non-performance of the Contractor’s obligations including any:
(a) breach of contract;
(b) tort, including negligence or breach of Law; and
(c) breach of equitable duty, including breach of confidentiality or a breach of fiduciary duty.
23.3 No liability
The Contractor performs the Supply at the Contractor’s sole risk, and to the extent permitted at Law, the Company will not be liable to the Contractor, the Contractor’s Personnel, or any other person for any loss sustained by any person or to any property, howsoever caused, arising out of or in connection with a Contract, except as arising out of or as a result of the Gross Negligence or breach of a Contract by the Company.
24. Exclusion of certain losses
Notwithstanding any other provision in a Contract, no Party is liable to the other Party for any Consequential Loss.
No Fault Termination/Termination for Convenience
(a) the Company may terminate a Contract or part of a Contract at any time upon not less than thirty (30) days’ written notice to the Contractor without being required to give reasons for the termination.
(b) When the Contractor receives a notice of termination from the Company, the Contractor must:
(i) stop work to the extent required by the notice;
(ii) not place any further orders nor enter into any further contracts or other binding arrangements in respect of the Goods and/or Services;
(iii) take such actions as are necessary or as the Company directs, for the transfer, protection and preservation of the Goods and/or Services and any property in the Contractor's possession and in which the Company has or may acquire an interest;
(iv) if the Company so directs, remove from the Company's premises all of the Contractor's Personnel, plant, machinery, vehicles and other equipment;
(v) promptly return to the Company any of its Technical Materials or other property or documents which the Company owns or in which the Company has an interest;
(vi) take any other action relating to the Goods and/or Services which the Company may reasonably require;
(vii) do its best to minimise the cost of termination to both Parties; and
(viii) send the Company a final invoice prepared in accordance with clause 24(c) within thirty (30) days after the effective date of termination.
(c) The Contractor's final invoice under clause 24(b)(viii) must only include:
(i) the Price for the Supply provided to the Company prior to the effective date of termination and not included in any previous invoice; and
(ii) the reasonable costs of demobilisation provided such costs are additional to those the Contractor would have incurred at the expiration of a Contract.
(d) The Contractor's final invoice will be the Contractor’s sole remedy in respect of the termination of a Contract by the Company pursuant to this clause 24. For the avoidance of doubt, the final invoice must not include any amount for anticipated profit, unperformed work or Consequential Loss or damage or any other indirect cost, loss or damage as a result of such termination.
(e) Provided the Contractor has complied with its obligations under this clause 24, the Company will pay the final invoice subject to and in accordance with clause 11.
25. Default and Termination
If a Party (
) fails to perform a material obligation under a Contract (
), the other Party (
) may give the Defaulting Party a notice specifying that the Default has occurred and the nature of the Default and requiring the Defaulting Party to cure the Default within a period (
) which must not be less than:
(a) in the case of a Financial Default, 5 Business Days; and
(b) in the case of a Non-Financial Default, 15 Business Days,
from receipt of notice.
25.2 Termination for Default or Insolvency Event
(a) If a Party is subject to an Insolvency Event, the other Party may terminate a Contract immediately by giving notice to the first mentioned Party.
(b) A Non-Defaulting Party may terminate a Contract:
(i) in the case of a Financial Default, or Non-Financial Default that has a material adverse effect on the Non-Defaulting Party, if the relevant Default is not cured within the Cure Period; or
(ii) in the case of a Non-Financial Default that does not have a material adverse effect on the Non-Defaulting Party, if the Defaulting Party ceases diligently to pursue a cure to the Default.
25.3 Obligations upon Termination
If a Contract is terminated with its terms, the Contractor must:
(a) cease performance of the Supply;
(b) immediately take all possible action at its cost to ensure the safety of all Personnel and the protection of all Goods;
(c) immediately take all possible action to mitigate any Liabilities incurred by it as a result of such termination; and
(d) take any other action reasonably required by the Company in relation to the termination.
(a) Each Party undertakes that it will not use or disclose to any person any Confidential Information of the other Party, except in the proper course of its duties under a Contract in accordance with its terms or with the other Party’s prior written consent.
(b) Nothing in a Contract prohibits disclosure of Confidential Information which:
(i) is in the public domain other than as a result of the wrongful act or breach of this agreement of that Party;
(ii) is received from a third party without any obligation of confidence, provided that it was not acquired directly or indirectly by that third party from a Party to a Contract; or
(iii) is required to be disclosed by Law or any Government Agency having authority over the Party.
(c) The terms of a Contract may be disclosed to:
(i) any legal, financial and other professional adviser of a Party;
(ii) a Related Body Corporate of a Party;
(iii) the auditor of a Party; or
(iv) a bona fide prospective purchaser of a Party or the business of that Party,
provided that party agrees to keep the terms of a Contract confidential in accordance with this clause 26.
(d) The obligations under this clause 26 survive termination of a Contract.
27. Public Announcements
Except as and to the extent required by any applicable Law or regulatory requirement, or as otherwise permitted by a Contract, neither Party may make any public announcements or disclosures as to a Contract, or otherwise in relation to the subject matter of a Contract, without the prior written consent of the other Party (which cannot be unreasonable withheld).
28. Intellectual Property Rights
(a) Except as expressly agreed otherwise between the Parties, nothing in a Contract affects the ownership of any Background IP.
(b) The Contractor grants to the Company a non-exclusive, transferable, royalty free, irrevocable and perpetual licence to use all the Contractor’s Background IP to the extent necessary for the purposes of the Supply and the use of the Supply in connection with the Company's business.
(c) All Project IP shall be vested in the Company and shall be the Company's property as and when created and the Contractor must assign all rights, title and interest in and to the Project IP to the Company (including but not limited to any Project IP created prior to or after the date of a Contract).
(d) The Company grants the Contractor a non-exclusive, non-transferable, revocable, royalty free licence to use the Company’s Background IP and Project IP to the extent necessary to enable the Contractor to provide the Supply in accordance with a Contract.
(e) The Contractor must not disclose, reproduce or otherwise deal with the Project IP, or allow any other person to do the same, for any purpose, other than to provide the Supply pursuant to a Contract.
(f) The Contractor represents and warrants that:
(i) the provision of the Supply does not and will not infringe the Intellectual Property Rights of any third party;
(ii) it will, at no further cost to the Company, procure all licences and consents to use any Intellectual Property Rights of a third party which are necessary to provide the Supply;
(iii) the Project IP does not and will not infringe any rights of third parties (including, without limitation any Intellectual Property Rights); and
(iv) it has the right to grant to the Company the licence under clause 35(b); and
(v) the Contractor has the right to assign all Project IP to the Company in accordance with clause 28(d).
(g) The Contractor must ensure that any sub-contract the Contractor enters into will contain a condition that the Sub contractor agrees to assign to the Company all Intellectual Property Rights in any Project IP created by the Sub-contractor.
(h) The Contractor must notify the Company as soon as the Contractor becomes aware of any suspected, threatened or actual infringement of any Intellectual Property Rights in the Project IP or the Company’s Background IP and to provide all reasonable assistance in defending against such infringement.
(i) The obligations in this clause 28 continue after a Contract is terminated.
29. Taxes (including GST)
Capitalised terms which are defined in the GST Act have that meaning in this Clause 36 – Taxes (including GST) except that Taxable Supply excludes the reference to Section 84-5 of the GST Act.
29.2 Amounts Payable exclusive of GST
If GST is payable on a Taxable Supply made under a Contract, the Recipient must pay an additional amount equal to the GST payable in respect of that Taxable Supply. This Clause 36 – Taxes (including GST) does not apply to the extent that the Consideration for the Taxable Supply is expressly agreed to be GST inclusive.
29.3 Registration for GST
The Contractor must do all things necessary to ensure that it is registered for GST purposes. The Contractor is required to notify the Company if it is not GST registered and must notify the Company immediately if it ceases to be GST registered.
29.4 Requirement for ABN
Unless an exemption in Section 12-190 of Schedule 1 to the Taxation Administration Act 1953 (Cth) applies, the Company is not required to make any payment to the Contractor unless the Contractor has notified the Company of its ABN. If, for any reason, the Contractor ceases to be ABN registered, the Contractor must notify the Company within seven (7) days.
If there is an Adjustment, the Contractor must:
(a) notify the Company of any Adjustment within fourteen (14) days of first becoming aware of the Adjustment.
(b) issue an Adjustment Note to the Company within twenty-eight (28) days of becoming aware of the Adjustment.
29.6 Input Tax Credit
If an amount is or becomes payable, whether by way of reimbursement, indemnity, damages or otherwise:
(a) if the amount is calculated by reference to costs, expenses or losses suffered, the amount of the costs, expenses or losses will be the actual amount less the amount of any Input Tax Credit entitlement. A Party will be assumed to be entitled to claim full Input Tax Credits unless it demonstrates that its entitlement is otherwise before entering into a Contract; and
(b) if the amount is calculated by reference to any loss of revenue or profits, the revenue will be taken to be revenue exclusive of GST.
29.7 Requirement for Tax Invoice or Adjustment Note
Notwithstanding any other provision of a Contract, the Company is not obliged to pay any amount to the Contractor unless and until the Contractor issues a Tax Invoice or Adjustment Note in respect of that amount.
29.8 Recipient Created Tax Invoice
The Contractor acknowledges that if supplies are to be made under a Recipient Created Tax Invoice then a Recipient Created Tax Invoice agreement between the Company and the Contractor is required.
29.9 Payment in Currency other than Australian Dollars
If payment under a Contract is required in any currency other than Australian dollars, the applicable invoice must stipulate any applicable GST amount in Australian dollars.
(a) Any notice or other communication in relation to a Contract must:
(i) be in writing;
(ii) be marked to the attention of the Representative of the relevant Party;
(iii) delivered by hand to the address of the addressee, or sent by ordinary letter post (airmail if posted to or from a place outside Australia) or hand delivery by a reputable courier service to the physical address of the addressee, or sent by email or fax to the email address or fax number of the addressee as provided by the addressee from time to time.
(b) A notice or other communication takes effect from the time it is received unless a later time is specified in it.
(c) If posted in Australia, a letter is taken to be received on the sixth day after posting.
(d) If posted overseas, a letter is taken to be received on the tenth day after posting.
(e) An facsimile or email is taken to be received at the time shown in a transmission report by a facsimile machine or in a delivery confirmation report generated by the sender’s email system, as appropriate.
31. Assignment and Sub-contractors
(a) Either Party may assign their rights and interest in and under a Contract (in this clause 32 an
Assignment of Benefit
) to a third party (in this clause 31 the
) without the prior consent of the other Party.
(b) An Assignment of Benefit does not relieve the Contractor or the Company (as the case may be) from any obligation or liability in accordance with a Contract.
(c) Each of the Parties acknowledges that their respective obligations and liabilities in accordance with a Contract cannot be divested to any person without the agreement of the other Party supported by consideration or evidenced by deed. Nothing in this Agreement constitutes a pre-authorisation of any novation.
(a) The Contractor must obtain the Company's approval (not to be withheld unreasonably) before engaging any of its own subcontractors in respect of the Supply.
(b) No subcontract, delegation or other similar arrangement (whether with or without the consent of the Company) in any way relieves the Contractor from full responsibility for the Supply and the performance of its obligations in accordance with a Contract.
(c) The Contractor is liable for the acts and omissions of each of its own subcontractors and of all persons either directly or indirectly acting for it in providing the Supply or otherwise in connection with the Supply.
32.1 Joint and Several Liability
Where the Contractor comprises two or more legal entities, their obligations under a Contract are joint and several.
Each Party must bear its own costs arising out of the negotiation, preparation and execution of a Contract. All duty that may be payable, including any related fines and penalties in any relevant jurisdiction on, or in connection with, a Contract or any associated documents (including any Security provided by the Contractor must be borne by the Contractor.
The failure of a Party to require performance of any obligation under a Contract is not a waiver of that Party’s right to claim damages for breach of that obligation.
32.4 Rights Cumulative
Except to the extent that the contrary intention appears in a Contract, the rights and remedies of the Company provided in a Contract are cumulative and do not exclude any rights and remedies provided by Law.
32.5 Further Assurances
Each Party must do everything reasonably necessary to give effect to a Contract (including the execution of documents) and agrees to cause third parties to do likewise.
If any part of a Contract is void, unenforceable or illegal in a jurisdiction it is severed for that jurisdiction. The remainder of a Contract has full force and effect and the validity or enforceability of that provision in any other jurisdiction is not affected. This Clause has no effect if the severance alters the basic nature of a Contract or is contrary to public policy.
A Contract may be executed in counterparts. All executed counterparts constitute one document.
32.8 Governing Law
A Contract is governed by the Laws of the State. Each Party submits to the non-exclusive jurisdiction of the courts of the State and any courts that may hear appeals from those courts in relation to any proceedings concerning a Contract.