Terms & Conditions

PART I - Supply of Goods

1 Supply of goods

1.1 The Contractor must supply the goods (including any part of the goods) to the Company in accordance with the Contract.

2 Conditions as to quality and description of the goods

2.1 The goods must match the description (including performance criteria) in the Contract.
2.2 If the Contractor gave the Company a sample of the goods before the Company entered into the Contract, the goods must correspond with the sample in addition to matching the description.
2.3 The goods must comply with any relevant standard of the Standards Association of Australia.
2.4 The goods must be fit for the purpose for which goods of the same kind are commonly supplied and for any other purpose, which the Company makes known to the Contractor.
2.5 The goods must be new and of merchantable quality.
2.6 If the goods are of a hazardous or dangerous nature then, without limitation to the Contractor’s obligations under this clause 2, the goods must comply with all Dangerous Goods Laws.

3 Inspection and information

3.1 During the period of the Contract, the Contractor must keep the Company fully informed on all aspects of the goods.
3.2 The Contractor must provide to the Company at the Company’s request:
(a) copies of all documentation relating to the goods;
(b) progress reports setting out in such detail as the Company requests the different stages of design, manufacture and testing of the goods; and
(c) a detailed program for the projected supply of the goods.
3.3 At all reasonable times, the Company has the right to:
(a) inspect, review, examine and witness tests on the goods or, the performance of the goods; and
(b) carry out site inspections,
at the Contractor’s premises and at the premises of any of its sub-contractors. 
3.4 The Contractor agrees to ensure that the Company is provided with access to the premises and facilities required for the Company to inspect, review, examine and witness the testing of the goods.
3.5 The Contractor must give the Company  10 days’ notice of the date the goods will be ready for delivery, final inspection or for performance tests prior to delivery, so that, if required by the Company, the Company can be present.
3.6 If, as a result of the Company’s review, inspection, examination, or witnessing of testing, the Company is not satisfied that the goods will comply in all respects with the Contract and the Company informs the Contractor in writing of the Company’s dissatisfaction, the Contractor agrees, at its own cost, to promptly take such steps as are necessary to ensure compliance.
3.7 The Company has the right to withhold any payment of money due to the Contractor under the Contract until such time as the goods comply with the Contract.
3.8 Any review, inspection, examination or witnessing of testing that the Company undertakes prior to delivery of the goods does not relieve the Contractor of its responsibilities under the Contract.

4 Title and risk

4.1 Title to and risk in the goods does not pass to the Company until:
(a) the Company takes delivery of the goods; and
(b) the Company inspects and accepts the goods.
4.2 The Contractor warrants that:
(a) the Contractor has complete ownership of the goods free of any liens, charges and encumbrances and will provide the goods to the Company on that basis; and
(b) the Company will be entitled to clear, complete and quiet possession of the goods.

5 Delivery

5.1 Except where the Contract provides differently, the Contractor is responsible for ensuring that the goods are properly packed and delivered by the time and to the place notified by the Company to the Contractor.
5.2 In each package of goods delivered to the Company, the Contractor must include a packing list and clearly mark each package for the attention of the Company Representative together with its order number and gross dead weight.
5.3 If the goods are of a hazardous or dangerous nature, the goods must be:
(a) supplied, handled, packaged, labelled and delivered by the Contractor in compliance with all Dangerous Goods Laws; and
(b) delivered to the Company with all relevant material safety data sheets.

6 Acceptance of the goods

6.1 The Company will not be deemed to have accepted any goods until the Company has had a reasonable time to inspect the goods after delivery.  Payment for the goods or the signing of delivery receipts before inspection does not constitute acceptance of the goods.
6.2 If upon inspection, the Company finds any goods to be Defective Goods, the Company may at its option (to be notified to the Contractor):
(a) reject the Defective Goods by returning them to the Contractor; or
(b) make good the Defective Goods.
6.3 At the Company’s option and request, the Contractor agrees to, within 14 days (or such other time agreed by the Company) of receipt of the Company’s notice notifying the Contractor of the Defective Goods:
(a) refund to the Company any payments made by the Company in respect of any Defective Goods that the Company rejects;
(b) make good any Defective Goods that the Company rejects; or
(c) reimburse the Company for any expenses the Company incurs in making good any Defective Goods.
6.4 The Company’s inspection, testing or acceptance of some or all of the goods does not in any way:
(a) change or affect the Contractor’s obligations under the Contract; or
(b) 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 the Contract.
6.5 If the Company decides to accept some goods from the Contractor which do not comply with the terms of the Contract, this decision does not bind the Company to accept future delivery of goods which do not comply with the terms of the Contract.

7 Warranties

7.1 The Contractor warrants that the goods
(a) will be free from any defect in design, performance, workmanship and makeup, and will conform with the Contract (including, without limitation, clause 2) for the Goods Warranty Period; and
(b) do not and will not infringe the Intellectual Property Rights of any person.
7.2 If, during the Goods Warranty Period, the Company finds any of the goods to be Defective Goods, the Company may at its option (to be notified to the Contractor):
(a) return the Defective Goods to the Contractor; or
(b) make good the Defective Goods.
7.3 At the Company’s option and request, the Contractor agrees to, within 14 days (or such other time agreed by the Company) of receipt of the Company’s notice notifying the Contractor of the Defective Goods:
(a) repair or, at the Company’s option, replace any Defective Goods that the Company returns to the Contractor, at the Contractor’s own cost; or
(b) reimburse the Company for any expenses the Company incurs in making good any Defective Goods,
during the Goods Warranty Period.
7.4 Any repairs or replacement goods provided by the Contractor under this clause will be subject to the same warranty as the original goods, from the date of repair or replacement.
7.5 The Contractor will not be liable for any defect in the goods that is caused by the Company’s negligence or the negligence of the Company’s employees.
7.6 The remedies provided in this clause do not exclude any other remedies provided by law.

PART II - Supply of Services

8 Supply of Services

The Contractor must provide the services (including any part of the services and the results of the services) to the Company in accordance with this Contract.

9 Conditions as to quality of services

9.1 The services must match the description of the services in the Contract.
9.2 If the Contractor provided the Company with a demonstration of the services before the Company entered into the Contract, the services must correspond in nature and quality with the services demonstrated.
9.3 If the Contractor showed the Company a result achieved by the services before the Company entered into the Contract, the services must correspond in quality with the services that achieved that result.
9.4 The services must be performed by appropriately qualified and trained personnel.
9.5 The services must be performed with due care and skill.
9.6 The services must be fit for the purposes for which those type of services are commonly bought and for any other purposes which the Company tells the Contractor about.
9.7 Any items which the Contractor uses or supplies in conjunction with the services must be of merchantable quality, comply with any applicable standards of the Standards Association of Australia and be fit for their usual purpose and any purpose which the Company tells the Contractor.
9.8 If the services involve dealings with dangerous or hazardous goods then, without limitation to the Contractor’s obligations under this clause 9, the services must be performed by appropriately qualified and trained personnel in accordance with all applicable Dangerous Goods Laws.

10 Inspection and Information

10.1 During the period of the Contract, the Contractor must keep the Company fully informed on all aspects of the services.
10.2 The Contractor must provide to the Company at the Company’s request:
(a) copies of all documentation relating to the services; and
(b) a detailed program for the projected supply of the services.
10.3 The Contractor agrees to ensure that the Company is provided with access to the premises and that all facilities required for the Company to inspect, review, examine and witness the testing of the services are made available to the Company.
10.4 The Contractor must advise the Company when any part of the services has been completed and is ready for review, inspection, examination or witnessing of testing.
10.5 If, as a result of the Company’s review, inspection, examination, or witnessing of testing, the Company is not satisfied that the services will comply in all respects with the Contract and the Company informs the Contractor in writing of the Company’s dissatisfaction, the Contractor agrees, at its own cost, to promptly take such steps as are necessary to ensure compliance.
10.6 The Company has the right to withhold any payment of money due to the Contractor under the Contract until such time as the services comply with the Contract.
10.7 Any review, inspection, examination or witnessing of testing that the Company undertakes prior to provision of services does not relieve the Contractor of its responsibilities under the Contract.

11 Acceptance of the services

11.1 The Company will not be deemed to have accepted any services until the Company has had a reasonable time to inspect and test the results of any services after performance.  Payment for the services before inspection does not constitute acceptance of the services.
11.2 If upon inspection or testing the Company finds any services to be Defective Services, the Company may at its option (to be notified to the Contractor):
(a) reject the Defective Services; or
(b) make good the Defective Services.
11.3 At the Company’s option and request, the Contractor agrees to, within 14 days (or such other time agreed by the Company) of receipt of the Company’s notice notifying the Contractor of the Defective Services:
(a) refund to the Company any payments made by the Company in respect of any Defective Services that the Company rejects;
(b) make good any Defective Services that the Company rejects; or
(c) reimburse the Company for any expenses the Company incurs in making good any Defective Services.
11.4 Our inspection, testing or acceptance of some or all of the services does not in any way:
(a) change or affect the Contractor’s obligations under the Contract; or
(b) 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 the Contract.
11.5 If the Company decides to accept some services from the Contractor which do not comply with the terms of the Contract, this decision does not bind the Company to accept the future performance of services which do not comply with the terms of the Contract.

12 Warranties

12.1 The Contractor warrants that the services and the results of the services:
(a) will be in conformity with the Contract (including, without limitation, clause 9), of high quality and workmanship and otherwise satisfactory for the Services Warranty Period; and
(b) do not and will not infringe the Intellectual Property Rights of any person.
12.2 If, during the Services Warranty Period, the Company finds any of the services or their results to be Defective Services, the Company may at its option (to be notified to the Contractor):
(a) reject the Defective Services; or
(b) make good the Defective Services.
12.3 At the Company’s option and request, the Contractor agrees to, within 14 days (or such other time agreed by the Company) of receipt of the Company’s notice notifying the Contractor of the Defective Services:
(a) re-perform or make good any Defective Services that the Company rejects, at the Contractor’s own cost; or
(b) reimburse the Company for any expenses the Company incurs in making good any Defective Services,
during the Services Warranty Period.
12.4 Any services that are re-performed or made good by the Contractor under this clause will be subject to the same warranty as the original services, from the date of re-performance or on which the services were made good.
12.5 The Contractor will not be liable for any fault in any service that is caused by the Company’s negligence or the negligence of the Company’s employees.
12.6 The remedies provided in this clause do not exclude any other remedies provided by law.

PART III - General

13 Performance of its obligations

13.1 The Contractor must, in performing its obligations under the Contract:
(a) use its best efforts not to interfere with any of the Company’s activities, or the activities of any other person, on the Company’s premises;
(b) comply with, and ensure that its employees, agents, contractors and sub-contractors comply with:
(i) the Act, all Environmental Laws, all other applicable laws, regulations and industrial awards and agreements; and
(ii) all safety, health and environment guidelines, rules and procedures provided to the Contractor by the Company; and
(iii) all directions and orders given by the Company’s Representative and the Registered General Manager; and
(c) ensure that the Company’s premises are left secure, clean, orderly and fit for immediate use.

14 Plant and Equipment

14.1 Unless the Contract provides differently, the Contractor agrees to supply, at its own expense, all labour, plant, equipment, tools, appliances or other property and items the Contractor requires to fulfil its obligations under the Contract.
14.2 Unless otherwise agreed by the Company, the Contractor may only bring onto the Mine site, the equipment and vehicles specified in the Contract Document (together “Equipment”).
14.3 The Contractor’s Equipment must be registered in accordance with all applicable laws and regulations and the Contractor must maintain the Equipment as necessary or required to comply with all applicable laws and regulations.
14.4 Any person engaged by the Contractor to operate the Equipment, whether its employee, agent or contractor, must be accredited to ITAB, Workcover standards or other applicable standards.
14.5 The insurances the Contractor is required to obtain and maintain under clause 20 must cover the Equipment and any person engaged by the Contractor to operate the Equipment.
14.6 At the Company’s request, the Contractor must produce evidence as to the matters referred to in clauses 14.3  to 14.5 above.
14.7 Any plant, equipment, tools, appliances or other property and items that the Company provides to the Contractor to enable the Contractor to complete the Contract remains the Company’s property and must only be used for the purposes of fulfilling the Contractor’s obligations under the Contract.
14.8 The Contractor must keep the Company’s property in good order and condition, subject, in certain specified cases, to fair wear and tear.
14.9 The Contractor is responsible and must compensate the Company for any loss or damage to or waste of the Company’s premises or property by its employees, agents, contractors and/or sub-contractors.
14.10 The Company will provide and make available for the Contractor’s use for the duration of the Contract the facilities and services specified in the Contract Document (if applicable).  The Company does not warrant the suitability, adequacy or sufficiency of such facilities and services and the Contractor shall provide and maintain all additional facilities and services necessary or required to comply with all applicable laws and regulations.

15 Price

15.1 The Company agrees to pay the Contractor the price specified in the Contract Document subject to the terms of the Contract.
15.2 The price represents the sole basis for the Contractor’s remuneration under the Contract and is inclusive of all current and future Taxes except GST.
15.3 If GST is imposed on any supply made by the Contractor under or in connection with the Contract, the Contractor may, subject to satisfactory compliance with clauses 15.4 and 15.5, recover from the Company, in addition to any price stated elsewhere in the Contract Document, an amount on account of GST calculated by multiplying the price stated elsewhere by the prevailing GST rate.  If the amount of GST payable by the Contractor to the Commissioner of Taxation on any supply made under the Contract differs for any reason from the amount on account of GST recovered or recoverable from the Company, the amount of GST recovered or recoverable from the Company shall be adjusted to equate with the GST payable by the Contractor. 
15.4 The Company is, by virtue of this clause, taken at the time of any taxable supply (as defined in the GST law) made by the Contractor under the Contract, to have requested the Contractor to provide a tax invoice (as defined in the GST law) to the Company in respect of that supply.  Regardless of the time of any taxable supply made by the Contractor, the Contractor must provide a tax invoice no later than 14  days after the occurrence of an event that causes its GST liability in respect of a taxable supply to be attributed to a particular tax period.  Where an adjustment event (as defined in the GST law) has occurred in relation to any supply by the Contractor under the Contract, the Contractor must provide an adjustment note to the Company no later than 7 days after that adjustment event.
15.5 Notwithstanding any other clause in the Contract, if the imposition of a GST or any subsequent change in the GST law is accompanied by or undertaken in connection (whether or not simultaneously) with the abolition of or reduction in any existing taxes, duties or statutory charges (“Relevant Taxes”), the price (excluding any GST) payable by the Company for any supply made under the Contract will be reduced by the same proportion as the Contractor’s actual total costs (including any Relevant Taxes but excluding any input GST paid or payable by the Contractor) are reduced as a consequence of the abolition of or reduction in Relevant Taxes, whether directly by way of the abolition of or reduction in Relevant Taxes paid or payable by the Contractor to its suppliers or to any government, or indirectly by way of a reduction in the prices (excluding any GST) charged by suppliers to the Contractor.
15.6 If any monies paid or payable by the Contractor to the Company under any other clause of the Contract are regarded, under the GST law, as consideration (in whole or part) for a taxable supply made by the Company, the Contractor must pay the Company an additional amount on account of GST calculated by multiplying the said monies by the prevailing GST rate.  Any additional amount on account of the tax recoverable from the Contractor under this clause will be calculated without any deduction or set-off of any other amount and is payable by the Contractor upon demand by the Company.

16 Invoicing and payment

16.1 The Contractor must invoice the Company at least once every calendar month.
16.2 When submitting the Contractor’s invoice, the Contractor must provide the Company with all relevant records to enable the Company to calculate and/or verify the amount of the invoice.
16.3 The Company will pay all invoices rendered to the Company by the Contractor within 30 days of the date of the invoice except where the Company:
(a) exercises its right to retain moneys due in accordance with the Contract in which case such amount may be deducted by the Company; or
(b) dispute the invoice, in which case:
(i) it will pay the undisputed part of the relevant invoice (if any) and dispute the balance; and
(ii) if the resolution of the dispute determines that the Company is to pay an amount to the Contractor, the Company will pay that amount upon resolution of that dispute.
16.4 In respect of any Invoice rendered to the Company by the Contractor under clause 16.1 which remains due and unpaid, the Company will pay interest at a rate of 1% per annum above the 60 day Bank Bill Swap Reference Rate last published on or before the due date for payment in The Australian Financial Review (or if that rate has not been published, another rate to be agreed by the parties) unless the amount remains due and unpaid under clause 16.3(a) or (b).
16.5 The Company may reduce any payment due to the Contractor under these terms by any amount for which the Contractor is liable to the Company, including costs, charges, damages and expenses.  This does not limit the Company’s right to recover those amounts in other ways.
16.6 Unless otherwise specified, any money payable under the Contract is to be paid in Australian currency.

17 Accounts and records

17.1 The Contractor shall maintain in Australia for 24 months after the expiration of the Contract or any extension thereof, a complete set of:
(a) invoices, accounts, budget records, logs and other cost data in accordance with accepted good document control and accounting practices showing all its costs, expenses and activities in connection with the performance of its obligations under the Contract; and
(b) all correspondence, tenders, minutes of meetings, notes, reports, drawings, specifications manuals, procedures, programs, schedules and all other documentation associated with the performance of its obligations under the Contract.
17.2 At any time and from time to time during the 24-month period after the expiration of the Contract, the Company shall have the right to inspect and audit the Contractor’s accounts, records and documentation in relation to the Contractor’s obligations under the Contract during the term of the Contract.  The Contractor shall give every assistance to the Company in relation to any such audit and provide the Company with proper access and facilities to enable the Company to carry out such inspection and audit.
17.3 Whether on completion of any inspection and audit or otherwise, if any payments made to the Contractor are shown or known to exceed its entitlements pursuant to the Contract, then the Company may at the Company’s option:
(a) deduct an amount equal to the excess from moneys due or becoming due to the Contractor; or
(b) require the Contractor to reimburse the Company within 14 days of completion of the inspection and audit or otherwise, the amount equal to any such excess.
17.4 Whether on completion of any inspection and audit or otherwise, if any payments made to the Contractor are shown or known to be less than its entitlements pursuant to the Contract, then the Company shall pay to the Contractor the shortfall within 14 days.

18 Termination, variation and suspension of the Contract

18.1 The Company may immediately terminate the Contract by notice in writing to the Contractor if:
(a) the Contractor is in breach of any term or condition of the Contract and such breach has not been remedied, overcome or rectified (to the Company’s reasonable satisfaction) by the Contractor within 14 days after notice is given to the Contractor by the Company in respect of that breach; or
(b) an Insolvency Event occurs in respect of the Contractor.
18.2 The Contractor may immediately terminate the Contract by notice in writing to the Company if:
(a) the Company is in breach of any term or condition of the Contract (including failure to make a payment which is properly due and payable to the Contractor) and such breach (if capable of remedy) has not been remedied within 14 days after notice is given to the Company by the Contractor in respect of that breach; or
(b) an Insolvency Event occurs in respect of the Company.
18.3 Notwithstanding any other provision of this agreement, the Company may, at its sole discretion, terminate this agreement for its convenience at any time, by giving the Contractor 30 days’ written notice in which case the Company (without prejudice to any other rights or remedies it has) must pay to the Contractor an Early Termination Amount set out in this Contract document.
18.4 In the event of termination, the Contractor must:
(a) stop work to the extent required by the notice;
(b) not place any further orders nor enter into any further contracts;
(c) in so far as the Company requires, assign to the Company or the Company’s nominee all rights and benefits under existing contracts with, or commitments of, third parties;
(d) take such action as necessary or as the Company directs, for the transfer, protection and preservation of the Company’s property;
(e) do its best to minimise expenses or costs to the Company consequent upon such termination;
(f) remove its tools, equipment, materials and facilities unless otherwise directed by the Company;
(g) if applicable, enable the Company or the Company’s nominee to take possession of all parts, goods, materials and all things incorporated in the services; and
(h) take any action relating to the termination of the Contract which the Company may reasonably require.
18.5 In the event of termination, the Company shall only be liable to pay to the Contractor all outstanding moneys due and payable at the date of termination in respect of goods delivered and services provided, subject to any rights which the Company may have to suspend, withhold or set-off payments.
18.6 The Company has the right to vary the Contract or part of the Contract at any time by written notice to the Contractor, setting out the effective date of the proposed variation.
18.7 When the Contractor receives a notice of variation from the Company, the Contractor must notify the Company in writing within 7 days (or such other time agreed by the Company) of the effective date of  the variation to confirm or otherwise advise the Company of the applicable price, costs or other amounts associated with the variation.
18.8 The Company shall as soon as practicable after receipt of its submission in respect to a variation, direct the Contractor to proceed or not to proceed with the variation and such variation, if accepted by the Company, will apply to the Contract.  The Contractor shall not proceed to execute a variation without the Company’s prior written approval.
18.9 Without prejudice to clause 22, the Company has the right, at any time and for any reason, to suspend the Contract or any part of the Contract by giving the Contractor notice. 
18.10 When the Contractor receives a notice of suspension from the Company, the Contractor must suspend the Contract in accordance with the notice until such time as the Company directs that the Contract is no longer suspended.  At such time, the Contractor must promptly recommence the performance of its obligations under the Contract. 
18.11 The Contractor shall be entitled to reasonable reimbursement by the Company of all costs and expenses incurred by the Contractor to the date of suspension of the Contract, by reason of the suspension of the Contract.
18.12 If such suspension is continuous for a period of more than 60 days, the Contractor shall be entitled to terminate the Contract by written notice to the Company.
18.13 Without prejudice to clause 22, the Contractor shall not be entitled to suspend the Contract without the Company’s prior written consent.
18.14 Any expiration or termination of the Contract does not affect:
(a) any rights of the parties which may have accrued before the date of termination; and
(b) the rights and obligations of the parties under clauses 18.4, 21, 24 and 25 which survive termination of the Contract.

19 Independent contractor

19.1 Both parties acknowledge that the Contractor is the Company’s contractor  and not the Company’s employee or agent. 
19.2 The Contractor shall pay and be solely responsible and liable for payment of all persons engaged by the Contractor to carry out its obligations under the Contract.

20 Insurance

20.1 The Contractor must take out and maintain during the period of the Contract (and in respect of the insurance referred to in clause 20.1(d), for a period of 7 years after the Contract period has ended):
(a) where goods are supplied, insurance for the goods up to the time they are delivered and installed (if required) for an amount not less than their replacement value;
(b) a comprehensive public and products liability policy to cover all sums which the Contractor may become legally liable to pay as compensation consequent upon:
(i) death of, or bodily injury (including disease or illness) to, any person; and
(ii) loss of, or damage to, property,
happening anywhere in Australia arising out of or in connection with the Contract.  The limit of liability provided by this policy must be not less than $10 million per event or series of connected events and in aggregate for products liability and must be not less than $10 million per event or series of connected events and in aggregate for public liability.   The policy must include a cross liability clause in which the insurer agrees to waive all rights of subrogation or action against any of the persons comprising the insured, including the Company, and for the purpose of which the insurer accepts the term “insured” as applying to each of the persons comprising the insured as if a separate policy of insurance had been issued to each of them (subject to the overall sum insured not being increased thereby);
(c) insurance required to be obtained by the laws of the relevant jurisdiction in which the Contractor’s obligations under the Contract are to be carried out relating to workers compensation or employer’s liability from any accident or injury to any person employed by the Contractor in connection with the Contract and the Contractor must ensure that all sub-contractors are similarly insured in respect of their employees;
(d) where services are supplied, professional indemnity insurance with a limit of liability of not less than $10 million in respect of the performance of services in connection with the Contract;
(e) comprehensive motor vehicles third party liability insurance for an amount not less than $10 million in respect of all motor vehicles used by the Contractor at the Mine site at any time in connection with the performance of its obligations under the Contract; and
(f) other insurances required by law or reasonably required by the Company.
20.2 The Contractor will ensure that all policies of insurance (excluding the insurance under clause 20.1(c) and (d)) required to be taken out by the Contractor under the Contract include the Company and the Owners (each being a principal or the Contractor’s client) as insured parties.
20.3 The Contractor must notify the Company immediately of any cancellation of a relevant insurance policy and of any change to the policy which affects the Company’s interests.
20.4 If any event occurs which may give rise to a claim involving the Company under any policy of insurance to be taken out by the Contractor under this clause (excluding the insurance under clause 20.1(d)) then the Contractor must:
(a) notify the Company within 14 days of that event; and
(b) ensure that the Company is kept fully informed of any subsequent actions and developments concerning the relevant claim.
20.5 At the Company’s request, the Contractor must produce evidence that the Contractor is maintaining the insurances required by this clause.
20.6 The Company has the right to take out and maintain any policy of insurance required by this clause if the Contractor fails to do so.
20.7 The Contractor agrees to reimburse the Company for any expenses the Company incurs in taking out and maintaining any policy of insurance under this clause.

21 Liability and indemnities

21.1 The Company will not be liable to the Contractor (whether in tort or in contract) for or in respect of any loss or damage of any kind whatsoever (other than loss or damage arising from fraud, gross negligence or wilful breach of the Contract by the Company) arising directly or indirectly from any act or omission (whether negligent or otherwise) on the Company’s part or on the part of any of the Company’s employees, agents, contractors and/or sub-contractors in connection with or relating to the Contract.
21.2 The Contractor acknowledges that if the Contractor enters the Company’s premises, the Contractor does so at its own risk.  The Contractor must ensure that its employees, agents, contractors and sub-contractors are also aware that they enter the Company’s premises at their own risk.
21.3 The Contractor will be liable for, and will indemnify the Company and keep the Company indemnified from and against any liability and/or any loss or damage of any kind whatsoever (other than liability, loss or damage arising from fraud, gross negligence or wilful breach of the Contract by the Company) arising directly or indirectly from:
(a) any breach of any warranty or any of the other terms and conditions of the Contract by the Contractor;
(b) the illness, injury or death of any of its employees, agents, contractors and/ or sub-contractors arising out of or in connection with the Contract;
(c) any loss or damage arising out of, or in connection with, any personal injury, illness or death to any person or damage to any property or any other loss or damage of any kind whatsoever caused or contributed to by:
(i) the goods and services; and/or
(ii) the entry onto, and the activities undertaken on and in, the Company’s premises by the Contractor and/or its employees, agents, contractors and/or sub-contractors; and/or
(iii) the breach by the Contractor and/or its employees, agents, contractors and/or sub-contractors of an applicable law, including, without limitation, an Environmental Law or Dangerous Goods Law, in connection with the Contract;
(d) any negligence or wilful act or omission by the Contractor and/or any of its employees, agents, contractors and/or sub-contractors in connection with the Contract;
(e) any claim made against the Company by any of the Contractor’s  employees, agents, contractors and/or sub contractors in respect of any relevant legislation concerning income tax, workers compensation, annual leave, long service leave, superannuation or any applicable award, determination or agreement of a competent industrial tribunal;
(f) any penalty imposed for breach of an applicable law, including, without limitation, an Environmental Law or Dangerous Goods Law, in connection with the performance of its obligations under the Contract;
(g) loss or damage to any plant, equipment, tools, appliances or other property owned, rented or hired by the Contractor and used in relation to the Contract;
(h) any claim that the goods, anything the Contractor does in supplying the Company with the goods, or the Company’s use of the goods infringes or allegedly infringes the Intellectual Property Rights of any person; and
(i) any claim that anything the Contractor does in providing the Company with any services or the results of those services infringes or allegedly infringes the Intellectual Property Rights of any person.
21.4 Every exemption, limitation, defence, immunity or other benefit contained in the Contract to which the Company is entitled will also be held by the Company to the benefit of, and will extend to protect, each of the Company’s employees, agents, contractors and sub-contractors (excluding the Contractor, its employees, agents, contractors and sub-contractors).
21.5 Each indemnity in the Contract is a continuing obligation separate and independent from the Contractor’s other obligations and survives termination of the Contract.
21.6 It is not necessary for the Company to incur expense or make payment before enforcing a right of indemnity conferred by the Contract.

22 Force majeure

22.1 If either party is unable at any time whether wholly or in part by reason of force majeure to carry out all or any of its obligations under the Contract (other than the payment of money), that party (“affected party”) shall give to the other (“non-affected party”) prompt written notice to that effect giving full particulars of such force majeure as is claimed to exist or to have occurred.  The obligations under the Contract of the affected party shall, to the extent that it is affected by such force majeure, be suspended during but no longer than the continuance of the force majeure.
For the purposes of this clause, force majeure is limited to:
(a) war, whether declared or undeclared, revolution, act of public enemies, embargo or blockade;
(b) insurrection, sabotage, riot or civil disturbance;
(c) epidemic, cyclone, tidal wave, flood, fire, earthquake, landslide, lightning or explosion;
(d) statewide or national industrial disputes, including without limitation, lockout strike, interruption, slowdown, or other action of organised labour;
(e) restriction or restraint by any Government or other authority arising from changes to any existing regulation which could not reasonably have been foreseen at the date of commencement of the Contract;
(f) accidents to or preventing the proper navigation of vessels, impositions, or restrictions or regulations affecting the transport of the Company’s products by sea or land or the export of the Company’s products from Australia;
(g) unforeseeable collapse of Mine infrastructure or access to the Mine workings;
(h) any interruption to grid power supply;
(i) material breakdown of equipment at the Mine; or
(j) restriction or reduction in water allocation.
22.2 Any failure to perform any obligation under the Contract shall be deemed to have been caused by reason of force majeure only if:
(a) the event was not caused by the negligence of the affected party; and
(b) the affected party has taken all reasonable precautions against the occurrence and has performed all reasonable alternative measures for satisfying its obligations under the Contract.
22.3 Neither party shall be responsible to the other party for any costs whatsoever arising out of any incident of force majeure.
22.4 The non-affected party will be entitled to terminate the Contract by giving written notice to the affected party if the force majeure event is for a continuous period of 6 months and prevents the affected party from performing its obligations under the Contract during that period.

23 Disputes

23.1 If a dispute or difference arises between the parties as to any matter arising under the Contract and either party gives notice in writing to the other party adequately identifying the matters the subject of the dispute or difference together with detailed particulars thereof the respective representatives of each party shall use their best endeavours to:
(a) resolve the dispute or difference and for this purpose they shall undertake such investigations, hold such meetings and conduct such informal hearings as are thought necessary; or
(b) if the dispute or difference cannot be resolved, agree upon a process for resolving the whole or part of the dispute or difference by means other than litigation or arbitration.
23.2 If, after the expiration of 30 days from the giving of the above notice, the dispute or difference is not resolved by the procedures set out in this clause such dispute or difference shall then be referred to arbitration.
23.3 If the dispute or difference is not resolved by arbitration, such dispute or difference shall then be referred to litigation.

24 Intellectual property

24.1 The Company retains the Intellectual Property Rights in the Technical Materials.
24.2 The Contractor may use the Technical Materials as necessary for the purpose of completing the Contract.  The Contractor must not reproduce, use or otherwise deal with the Technical Materials, or allow any other person to do the same, for any other purpose.  The Company has the right to revoke the Contractor’s right to use the Technical Materials at any time by notice in writing to the Contractor.
24.3 In return for the price, the Contractor assigns to the Company all Intellectual Property Rights in any materials created by the Contractor or on its behalf for the purposes of the Contract.
24.4 The Contractor agrees that any sub-contract the Contractor enters into in relation to the Contract will contain a condition that the sub-contractor agrees to assign to the Company all Intellectual Property Rights in any materials created by it for the purposes of the Contract.
24.5 The Contractor agrees to notify the Company as soon as the Contractor becomes aware of any suspected, threatened or actual infringement of:
(a) any Intellectual Property rights in the Technical Materials; and
(b) any Intellectual Property Rights assigned to the Company by the Contractor or its sub-contractor under the Contract,
and to provide all reasonable assistance in defending against such infringement.
24.6 The Contractor agrees to provide all reasonable assistance the Company may request to protect:
(a) the Intellectual Property Rights in the Technical Materials; and
(b) the Intellectual Property Rights assigned to the Company by the Contractor or its sub-contractor under the Contract.
24.7 The obligations in this clause continue after the Contract is terminated.

25 Confidential information

25.1 Keep confidential
Subject to clause 25.2, the Company and the Contractor must keep the contents of this Contract and all documents and information made available to it under, or in connection with, or in the course of the performance of, this Contract, confidential and must not disclose the same to any other person without the prior consent of the other party.
25.2 Exceptions to confidentiality
Clause 25.1 will apply in the following circumstances:
(a) any disclosure required by law;
(b) in respect of information already in the public domain (other than as a result of breach of this clause 28);
(c) any disclosure required by applicable stock exchange listing rules;
(d) disclosure to solicitors, barristers or other professional advisers (including auditors) under a duty of confidentiality;
(e) disclosure to a banker or other financial institution relevant to a party, to the extent required for the purpose of raising funds or maintaining compliance with credit arrangements, if the banker or financial institution first gives a binding covenant to the Company to maintain confidentiality of the information, in form and substance satisfactory to the Company;
(f) disclosure to an employee, agent, related entity or contractor relevant to a party ("Associate"), if such Associate first gives a binding covenant to the Company to maintain confidentiality of the information, in form and substance satisfactory to the Company; or
(g) disclosure to a bona fide purchaser of the Contractor or the Company of all or part of the shares in that party, if such purchaser first gives a binding covenant to the Company to maintain confidentiality of the information, in form and substance satisfactory to the Company
25.3 The obligations under this clause 25 survive termination of the Contract.

26 Representative

26.1 In accordance with the Act, the Company has appointed the Registered General Manager to perform and execute the duties and responsibilities stated in the Act.  In matters pertaining to the safety of persons and property on or about the premises, the directions of the Registered General Manager shall be obeyed, final and binding.
26.2 The Company has appointed the Company Representative to issue instructions and to exercise any of the powers to be exercised by the Company under the Contract and to have control of and supervise the Contractor’s obligations under the Contract.
26.3 The Contractor has appointed the Contractor Representative to receive directions from the Company and to bind the Contractor on all matters pertaining to the performance of the Contract.

27 Assignment & sub-contracting

27.1 The Contractor may not assign, charge or otherwise encumber its rights or obligations under the Contract without the Company’s prior written consent.
27.2 The Company has the right to assign, charge or otherwise encumber any or all of the Company’s obligations or rights under the Contract at any time.
27.3 The Contractor may not sub-contract its obligations under the Contract unless the Company consents in writing to such arrangement.
27.4 The Contractor is required to make the rights of the Company contained in this Contract a condition of any sub-contract work.

28 Notices

28.1 Any notice, approval, consent or other communication in relation to the Contract must:
(a) be in writing;
(b) marked for the attention of:
(i) in the case of a notice to the Company, the Company Representative;
(ii) in the case of a notice to the Contractor, the Contractor Representative; and
(c) be left at or sent by prepaid ordinary post to the last notified address of the party, sent by facsimile to the last notified facsimile number of the party, or sent by electronic mail (“email”) to the last notified email address of the party.
28.2 A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.
28.3 If posted in Australia, a  letter is taken to be received on the third day after posting. 
28.4 If posted overseas, a letter is taken to be received on the seventh day after posting.
28.5 A facsimile is taken to be received at the time shown in a transmission report by the machine which indicates that the whole facsimile was sent.
28.6 An email is taken to be received at the time shown in a delivery confirmation report generated by the sender’s email system.

29 These terms are exclusive

29.1 By executing the Contract the Contractor agrees to be bound by the terms in the Contract.
29.2 The Contract, as amended from time to time in accordance with the terms in the Contract, represents the entire agreement between the parties and supersedes all prior arrangements whether written or oral, expressed or implied and any documents, correspondence or representations given or made in relation to the Works or its performance prior to the execution of the Contract.

30 Other matters

30.1 Any of the Company’s rights under these terms can only be waived by the Company in writing.
30.2 These terms may not be varied except in writing signed by both parties.
30.3 The Company may exercise a right, remedy or power in any way the Company considers appropriate.
30.4 If the Company does not exercise a right, remedy or power at any time, this does not mean that the Company cannot exercise it later.
30.5 If any provision of the Contract is found to be unenforceable or invalid for any reason, that provision shall be severed from the Contract and the balance of the Contract shall remain in full force and effect.
30.6 The Contractor must obtain at its own expense any necessary Licences or permits and comply with applicable laws in connection with its obligations under the Contract.
30.7 The Company’s rights, remedies and powers under the Contract are in addition to any rights, remedies and powers provided by law.
30.8 All employees, agents, contractors and sub-contractors used by the Contractor for the Contract, shall obtain the relevant induction competences before entering the work areas.
30.9 Where the Contractor consists of two or more companies, the Contract binds those companies jointly and severally.

31 Governing law

31.1 The laws of New South Wales, Australia, govern the Contract.
31.2 The Contractor and the Company agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from them.

Act means the Mines Health and Safety Act 2004 & NSW Occupational Health and Safety Act 2000 (as amended) and all Regulations under these Acts and all orders and directions made under these Acts and Regulations and any amendments to these Acts and Regulations in force in the State of New South Wales.

Company means Cobar Management Pty Ltd (ABN 38 083 171 546).
Company Representative means the person notified in writing by the Company to the Contractor as the Company’s representative under the Contract.

Contract means these Standard Terms and Conditions together with the Contract Document and any other document that the parties agree forms part of the Contract between them.
Contract Document means the contract document to which these Standard Terms and Conditions are attached as an appendix.

Contractor means the person named as the Contractor in the Contract Document.
Contractor Representative means the person notified in writing by the Contractor to the Company as the Contractor’s representative under the Contract.

Dangerous Goods Law means a law, regulation, licence, consent, standard or code relating to the supply, handling, use, transportation, delivery, storage, packaging, manufacture or labelling of hazardous or dangerous goods including, without limitation, the amendments to the NSW Occupational Health and Safety Act 2000 and the NSW Occupational Health and Safety Regulation 2001 to regulate Dangerous Goods (together Dangerous Goods Laws).
Defective Goods means goods which are not in conformity with the Contract or are defective in design, performance, workmanship or makeup.

Defective Services means services or the results of any services which are not in conformity with the Contract, are of inferior quality or workmanship or are otherwise unsatisfactory.
Environmental Law means a law relating to the environment or the health or safety of persons, including, without limitation, a law relating to the use of land, resources, planning, environmental assessment, heritage, water, contamination, chemicals, hazardous substances, waste, dangerous goods, public health, occupational health and safety and any aspect of the environment or the enforcement or administration of any of those laws (whether the law arises under statute or pursuant to any statutory instrument, regulation, ordinance, permit, notice, decree, order or directive of any government authority or otherwise) (together, Environmental Laws).
Equipment has the meaning given to it in clause 14.2.

Goods Warranty Period means the period of 24 months from the date of delivery or 12 months from the date of installation or initial use of the goods, whichever is the sooner.
GST means any tax imposed by the New Tax System (Goods and Services Tax) Act 1999 (Cth) and its related imposition Acts or regulations of the Commonwealth.

Intellectual Property Rights includes without limitation the protected rights attaching to inventions, patents, registered designs, trade marks, copyright, circuit layouts and confidential information.

Insolvency Event means the happening of any of these events to an entity:

(a) the entity becomes or states that it is insolvent or bankrupt; or
(b) an application is made to a court for an order or an order is made against the entity for the entity to be wound up (not being a members voluntary winding up for the purposes of amalgamation or reconstruction); or
(c) an application is made to a court for an order appointing a liquidator or provisional liquidator or one of them is appointed; or
(d) the entity carries on its business under a receiver, manager, or trustee for the benefit of its creditors, or any of them; or
(e) the entity has appointed an administrator, receiver or manager; or
(f) anything analogous or having a substantially similar effect to any of the events specified above happens.

Licences means all licences, qualifications, registrations and other statutory requirements necessary for performance of the Contractor’s obligations under the Contract.

Mine means the CSA Mine located approximately 11 kilometres north of the town of Cobar on the Louth Road, in the State of NSW.

Technical Materials means any plans, designs, drawings, engineering information, data, specifications, reports, accounts and any other material the Company provides to the Contractor.
Owners means Isokind Pty Ltd (ACN 081 732 498) (as to 60%) and Acelight Pty Ltd (ACN 084 303 444) (as to 40%).

Registered General Manager means, the general manager of the Mine.
Services Warranty Period means the period of 12 months from the date on which the service is performed.

Taxes means any and all present and future sales, use, personal, property, real property, value added, goods and services, turnover, stamp, documentary, interest equalisation, business, occupation, excise, income, corporation, profits, gains, gross receipts, or other taxes, fees, withholdings, imposts, levies, duties or other charges 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.