Terms & Conditions

1 The Contract

1.1 The agreement between the parties comprises:
(a) these terms;
(b) the Order; and
(c) any document referred to in the Order as forming part of this agreement, (together “the Contract”). 
1.2 Acceptance or performance of the Order by the Contractor constitutes the Contractor’s acceptance of the Contract.
1.3 Any reference to other terms and conditions in the Contractor’s quotation or any other documentation presented in connection with the Goods and/or Services will have no legal effect.
1.4 Where a separate written contract exists between the parties for the supply of Goods and/or performance of Services (which has been accepted by the Principal in writing), the terms and conditions of that contract shall apply to the exclusion of this Contract.
1.5 To the extent that  the Contractor is not supplying Goods under the Order, Part I will have no effect. 
1.6 To the extent that the Contractor is not performing Services under the Order, Part II will have no effect. 

PART I - Goods

2 Supply

2.1 The Contractor must supply the Goods (including any part of the Goods) to the Principal in accordance with the Contract.

3 Conditions as to quality and description

3.1 The Goods must:
(a) match the description (including performance criteria) in the Contract;
(b) comply with any relevant standard of the Standards Australia;
(c) be fit for the purpose for which Goods of the same kind are commonly supplied and for any other purpose, which the Principal makes known to the Contractor; and
(d) be new and of merchantable quality.
3.2 If the Contractor provided a sample of the Goods before the Principal entered into the Contract, the Goods must correspond with the sample in addition to matching the description in the Contract.
3.3 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.

4 Inspection and information

4.1 The Contractor must provide to the Principal at the Principal’s request:
(a) copies of all documentation relating to the Goods;
(b) progress reports setting out in such detail as the Principal requests the different stages of design, manufacture and testing of the Goods; and
(c) a detailed program for the projected supply of the Goods.
4.2 At all reasonable times, the Principal 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. 
4.3 The Contractor must provide access to the Mine site and facilities required for the Principal to inspect, review, examine and witness the testing of the Goods.
4.4 The Contractor must give the Principal 10 Business Days’ notice of the date the Goods will be ready for delivery, final inspection and for performance tests prior to delivery, so that, if required by the Principal, the Principal can be present.
4.5 If, as a result of the Principal’s review, inspection, examination, or witnessing of testing, the Principal is not satisfied that the Goods comply in all respects with the Contract and the Principal informs the Contractor in writing of the Principal’s dissatisfaction, the Contractor must, at its own cost, promptly take such steps as are necessary to ensure compliance.
4.6 The Principal may withhold any payment of money due to the Contractor under the Contract until such time as the Goods comply with the Contract.
4.7 The Principal’s review, inspection, examination or witnessing of testing of part or all of the Goods does not in any way:
(a) relieve the Contractor of its obligations under the Contract; or
(b) affect the Principal’s rights under or in connection with the Contract or at Law.

5 Title and risk

5.1 Title to and risk in the Goods does not pass to the Principal until:
(a) the Principal takes delivery of the Goods; and
(b) the Principal inspects and accepts the Goods.
5.2 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 Principal on that basis; and
(b) the Principal will be entitled to clear, complete and quiet possession of the Goods.

6 Delivery

 6.1 The Contractor must deliver the Goods to the Delivery Point by the Delivery Date.
6.2 The Contractor must ensure the Goods:
(a) are properly packed;
(b)  include a packing list; and
(c) are clearly marked to the attention of the Principal’s Representative with its order number and gross dead weight.
6.3 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 Principal with all relevant material safety data sheets.

7 Acceptance

7.1 The Principal will not be deemed to have accepted any Goods until the Principal 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.
7.2 If upon inspection, the Principal finds any Goods to be Defective Goods, the Principal may notify the Contractor of the Defective Goods and may:
(a) accept the Defective Goods;
(b) reject the Defective Goods by returning them to the Contractor; or
(c) make good the Defective Goods.
7.3 At the Principal’s option, the Contractor must, within 10 Business Days of receipt of the Principal’s notice:
(a) refund to the Principal the difference in value of any Defective Goods that the Principal accepts;
(b) refund to the Principal any payments made by the Principal in respect of any Defective Goods that the Principal rejects;
(c) make good any Defective Goods that the Principal rejects; or
(d) reimburse the Principal for any expenses the Principal incurs in making good any Defective Goods.
7.4 If the Principal makes an election under clause 7.2 in respect of Defective Goods, it does not bind the Principal to make the same election in respect of a future delivery of Defective Goods.
7.5 The Principal’s inspection, testing or acceptance of part or all of the Goods does not in any way:
(a) relieve the Contractor of its obligations under the Contract; or
(b) affect the Principal’s rights under or in connection with the Contract or at Law.

8 Warranties

8.1 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.
8.2 If, during the Goods Warranty Period, the Principal finds any of the Goods to be Defective Goods, the Principal may:
(a) return the Defective Goods to the Contractor; or
(b) make good the Defective Goods.
8.3 At the Principal’s option, the Contractor agrees to, within 10 Business Days of receipt of the Principal’s notice:
(a) repair or, at the Principal’s option, replace any Defective Goods that the Principal returns to the Contractor, at the Contractor’s cost; or
(b) reimburse the Principal for any expenses the Principal incurs in making good any Defective Goods.
8.4 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.
8.5 The remedies in this clause are in addition to any other remedies available at Law.

PART II - Services

9 Supply

9.1 The Contractor must provide the Services (including any part of the Services and the results of the Services) to the Principal in accordance with this Contract.
9.2 The Contractor must perform the Services:
(a) from the Commencement Date; and
(b) by the Completion Date, unless the Contract is terminated.

10 Conditions as to quality and description

10.1 The Services must:
(a) match the description of the Services in the Contract;
(b) be performed with due care and skill and by appropriately qualified and trained personnel; and
(c) be fit for the purpose for which Services of the same kind are commonly supplied and for any other purpose, which the Principal makes known to the Contractor.
10.2 If the Contractor provided the Principal with a demonstration of the Services before the Principal entered into the Contract, the Services must correspond in nature and quality with the Services demonstrated in addition to matching the description in the Contract.
10.3 If the Contractor showed the Principal a result achieved by the Services before the Principal entered into the Contract, the results achieved by the Services must correspond in quality in addition to matching the description in the Contract.
10.4 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.

11 Inspection and information

11.1 During the period of the Contract, the Contractor must keep the Principal fully informed on all aspects of the Services. 11.2 The Contractor must provide to the Principal at the Principal’s request:
(a) copies of all documentation relating to the Services; and
(b) a detailed program for the projected supply of the Services.
11.3 The Contractor must provide access to the Mine site and facilities required for the Principal to inspect, review, examine and witness the testing of the Services.
11.4 The Contractor must give the Principal 10 Business Days’ notice of the date when any part of the Services has been completed or is ready for review, inspection, examination or witnessing of testing.
11.5 If, as a result of the Principal’s review, inspection, examination, or witnessing of testing, the Principal is not satisfied that the Services will comply in all respects with the Contract and the Principal informs the Contractor in writing of the Principal’s dissatisfaction, the Contractor agrees, at its own cost, to promptly take such steps as are necessary to ensure compliance.
11.6 The Principal may withhold any payment of money due to the Contractor under the Contract until such time as the Services comply with the Contract.
11.7 The Principal’s review, inspection, examination or witnessing of testing of part or all of the Services does not in any way:
(a) relieve the Contractor of its obligations under the Contract; or
(b) affect the Principal’s rights under or in connection with the Contract or at Law.

12 Acceptance of the Services

12.1 The Principal will not be deemed to have accepted any Services until the Principal 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.
12.2 If upon inspection or testing the Principal finds any Services to be Defective Services, the Principal may notify the Contractor of the Defective Services and may:
(a) accept the Defective Services;
(b) reject the Defective Services; or
(c) make good the Defective Services.
12.3 At the Principal’s option and request, the Contractor agrees to, within 10 Business Days (or such other time agreed by the Principal) of receipt of the Principal’s notice notifying the Contractor of the Defective Services:
(a) refund to the Principal the difference in value of any Defective Services that the Principal accepts;
(b) refund to the Principal any payments made by the Principal in respect of any Defective Services that the Principal rejects;
(c) make good any Defective Services that the Principal rejects; or
(d) reimburse the Principal for any expenses the Principal incurs in making good any Defective Services.
12.4 If the Principal decides to accept some Services from the Contractor which do not comply with the terms of the Contract, this decision does not bind the Principal to accept the future performance of Services which do not comply with the terms of the Contract.
12.5 The Principal’s inspection, testing or acceptance of some or all of the Services does not in any way:
(a) relieve the Contractor of its obligations under the Contract; or
(b) affect the Principal’s rights under or in connection with the Contract or at Law.

13 Warranties

13.1 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.
13.2 If, during the Services Warranty Period, the Principal finds any of the Services or their results to be Defective Services, the Principal may:
(a) reject the Defective Services; or
(b) make good the Defective Services.
13.3 At the Principal’s option and request, the Contractor agrees to, within 10 Business Days of receipt of the Principal’s notice:
(a) re-perform or make good any Defective Services that the Principal rejects, at the Contractor’s own cost; or
(b) reimburse the Principal for any expenses the Principal incurs in making good any Defective Services.
13.4 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.
13.5 The remedies in this clause are in addition to any other remedies available at Law.

PART III - General

14 Performance of its obligations

14.1 The Contractor must, in performing its obligations under the Contract:
(a) use its best efforts not to interfere with any of the Principal’s activities, or the activities of any other person, on the Principal’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 Law, regulations and industrial awards and agreements; and
(ii) all safety, health and environment guidelines, rules and procedures provided to the Contractor by the Principal; and
(iii) all directions and orders given by the Principal’s Representative and the Registered General Manager; and
(c) ensure that the Mine site is secure, clean, orderly and fit for immediate use.

15 Plant and Equipment

15.1 Unless the Contract provides differently, the Contractor must supply all labour, plant, equipment, tools, appliances, vehicles or other property and items the Contractor requires to fulfil its obligations under the Contract (together “Equipment”). 
15.2 Any plant, equipment, tools, appliances or other property and items that the Principal provides to the Contractor to enable the Contractor to complete the Contract remains the Principal’s property and must only be used for the purposes of fulfilling the Contractor’s obligations under the Contract. The Contractor must keep the Principal’s property in good order and condition, subject, in certain specified cases, to fair wear and tear.
15.3 The Equipment must be registered in accordance with all applicable Laws and the Contractor must maintain the Equipment as necessary or required to comply with all applicable Laws.
15.4 Any person engaged by the Contractor to operate the Equipment, whether its employee, agent or contractor, must be accredited to Industry Training Advisory Bodies standards, Workcover standards, or other applicable standards.
15.5 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.
15.6 At the Principal’s request, the Contractor must produce evidence as to the matters referred to in clauses 15.3 to 15.5.
15.7 The Contractor is liable for any loss or damage to or waste of the Mine site or plant, equipment, tools, appliances or other property and items that the Principal provides to the Contractor by its employees, agents and/or sub-contractors.
15.8 The Principal will provide and make available for the Contractor’s use for the duration of the Contract the facilities and services specified in the Order.  The Principal 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.

16 Fee

16.1 In consideration of the supply of the Goods and/or the performance of the Services, the Principal must pay the Contractor the Fee subject to the terms of the Contract.
16.2 The Fee is inclusive of all current and future Taxes except GST.
16.3 If GST is imposed on any supply made under or in connection with the Contract, the Contractor may recover from the Principal, in addition to the Fee, an amount equal to the GST payable in respect of that supply upon the provision of a Tax Invoice. 

17 Invoicing and payment

17.1 The Contractor may invoice the Principal no more than once every calendar month, or as otherwise specified in the Order.
17.2 When submitting the Contractor’s Tax Invoice, the Contractor must provide the Principal with all relevant records to enable the Principal to calculate and/or verify the amount of the Tax Invoice.
17.3 When submitting the Contractor’s tax Invoice, the Contractor must issue a copy of that Tax Invoice in electrical format to the Principal’s Accounts Payable Email Address.
17.4 Invoices must be in a form acceptable to the Principal and must contain:
(a) the number of the Purchase Order to which the Tax Invoice relates;
(b) a brief description of the Goods and/or Services provided in the period covered by the Tax Invoice.
17.5 Subject to clauses 17.1 to 17.4, the Principal will pay a Tax Invoice rendered to the Principal in accordance with this Contract within 20 Business Days following the end of the month in which the Tax Invoice is received except where the Principal:
(a) exercises its right to withhold or set off moneys due under or in connection with the Contract in which case such amount may be deducted by the Principal; or
(b) disputes the Tax 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 Principal is to pay an amount to the Contractor, the Principal will pay that amount upon resolution of that dispute.
17.6 The Principal may retain or set off any payment otherwise due to the Contractor under or in connection with this Contract by any amount the Principal asserts is due from the Contractor to the Principal, including costs, charges, damages and expenses.  This does not limit the Principal’s right to recover those amounts in other ways.
17.7 Unless otherwise specified, any money payable under the Contract will be paid in Australian currency.
17.8 Payments are on account only.  Whether on completion of any inspection and audit or otherwise, if any payments made to the Contractor exceed its entitlements pursuant to the Contract, then the Principal may:
(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 Principal within 10 Business Days of completion of the inspection and audit or otherwise, the amount equal to any such excess.

18 Variation

18.1 The Principal may vary the Goods and/or Services at any time by written notice to the Contractor.
18.2 When the Contractor receives a notice of variation from the Principal, the Contractor must notify the Principal in writing within 5 Business Days of the applicable Fee, costs or other amounts associated with the variation.
18.3 The Principal 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.  The Contractor must not proceed to execute a variation without the Principal’s prior written approval.

19 Termination and suspension

19.1 The Principal 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 Principal’s reasonable satisfaction) by the Contractor within 10 Business Days after notice is given to the Contractor by the Principal in respect of that breach; or
(b) an Insolvency Event occurs in respect of the Contractor.
19.2 The Contractor may immediately terminate the Contract by notice in writing to the Principal if:
(a) the Principal has failed to make payment in breach of clause 17.3, other than in accordance with the Principal’s rights under clause 17 or otherwise; or
(b) an Insolvency Event occurs in respect of the Principal.
19.3 Notwithstanding any other provision of this Contract, the Principal may, at its sole discretion, terminate this agreement for its convenience at any time, by giving the Contractor 20 Business Days’ written notice in which case the Principal (without prejudice to any other rights or remedies it has) must pay to the Contractor an Early Termination Amount as set out in the Order.
19.4 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 in connection with this Contract;
(c) in so far as the Principal requires, assign to the Principal or the Principal’s nominee all rights and benefits under existing contracts with, or commitments of, third parties;
(d) take such action as necessary or as the Principal directs, for the transfer, protection and preservation of the Principal’s property;
(e) minimise expenses or costs to the Principal consequent upon such termination;
(f) remove its tools, equipment, materials and facilities unless otherwise directed by the Principal;
(g) if applicable, enable the Principal or the Principal’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 Principal may reasonably require.
19.5 In the event of termination, the Principal 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 Principal may have to withhold or set-off payments or dispute any amount due.
19.6 Without prejudice to clause 22, the Principal 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. 
19.7 When the Contractor receives a notice of suspension from the Principal, the Contractor must suspend the Contract in accordance with the notice until such time as the Principal directs that the Contract is no longer suspended.  At such time, the Contractor must promptly recommence the performance of its obligations under the Contract. 
19.8 The Contractor shall be entitled to reasonable reimbursement by the Principal 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.
19.9 If such suspension is continuous for a period of more than 40 Business Days, the Contractor shall be entitled to terminate the Contract by written notice to the Principal.
19.10 Without prejudice to clause 22, the Contractor shall not be entitled to suspend the Contract without the Principal’s prior written consent.
19.11 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.

20 Independent contractor

20.1 Both parties acknowledge that the Contractor is the Principal’s contractor and not the Principal’s employee or agent. 
20.2 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.

21 Insurance

21.1 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 Principal, 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 Principal.
21.2 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 Principal and the Owners (each being a principal or the Contractor’s client) as insured parties.
21.3 The Contractor must notify the Principal immediately of any cancellation of a relevant insurance policy and of any change to the policy which affects the Principal’s interests.
21.4 If any event occurs which may give rise to a claim involving the Principal 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 Principal within 10 Business Days of that event; and
(b) ensure that the Principal is kept fully informed of any subsequent actions and developments concerning the relevant claim.
21.5 At the Principal’s request, the Contractor must produce evidence that the Contractor is maintaining the insurances required by this clause.
21.6 The Principal has the right to take out and maintain any policy of insurance required by this clause if the Contractor fails to do so.
21.7 The Contractor agrees to reimburse the Principal for any expenses the Principal incurs in taking out and maintaining any policy of insurance under this clause.

22 Liability and indemnities

22.1 The Principal 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 Principal) arising directly or indirectly from any act or omission (whether negligent or otherwise) on the Principal’s part or on the part of any of the Principal’s employees, agents, contractors and/or sub-contractors in connection with or relating to the Contract.
22.2 The Contractor acknowledges that if the Contractor enters the Principal’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 Principal’s premises at their own risk.
22.3 The Contractor will be liable for, and will indemnify the Principal and keep the Principal 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 Principal) 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 Principal’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 Principal 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 Principal with the Goods, or the Principal’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 Principal with any Services or the results of those Services infringes or allegedly infringes the Intellectual Property Rights of any person.
22.4 Every exemption, limitation, defence, immunity or other benefit contained in the Contract to which the Principal is entitled will also be held by the Principal to the benefit of, and will extend to protect, each of the Principal’s employees, agents, contractors and sub-contractors (excluding the Contractor, its employees, agents, contractors and sub-contractors).
22.5 Each indemnity in the Contract is a continuing obligation separate and independent from the Contractor’s other obligations and survives termination of the Contract.
22.6 It is not necessary for the Principal to incur expense or make payment before enforcing a right of indemnity conferred by the Contract.

23 Force majeure

23.1 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 Principal’s products by sea or land or the export of the Principal’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.
23.2 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.
23.3 Neither party shall be responsible to the other party for any costs whatsoever arising out of any incident of force majeure.
23.4 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.

24 Disputes

24.1 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.
24.2 If, after the expiration of 20 Business 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.
24.3 If the dispute or difference is not resolved by arbitration, such dispute or difference shall then be referred to litigation.

25 Intellectual property

25.1 The Principal retains the Intellectual Property Rights in the Technical Materials.
25.2 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 Principal has the right to revoke the Contractor’s right to use the Technical Materials at any time by notice in writing to the Contractor.
25.3 In return for the Fee, the Contractor assigns to the Principal all Intellectual Property Rights in any materials created by the Contractor or on its behalf for the purposes of the Contract
25.4 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 Principal all Intellectual Property Rights in any materials created by it for the purposes of the Contract.
25.5 The Contractor agrees to notify the Principal 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 Principal by the Contractor or its sub-contractor under the Contract, and to provide all reasonable assistance in defending against such infringement.
25.6 The Contractor agrees to provide all reasonable assistance the Principal may request to protect:
(a) the Intellectual Property Rights in the Technical Materials; and
(b) the Intellectual Property Rights assigned to the Principal by the Contractor or its sub-contractor under the Contract.
25.7 The obligations in this clause continue after the Contract is terminated.

26 Confidential information

26.1 Keep confidential Subject to clause 25.2, the Principal 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.
26.2 Exceptions to confidentiality Clause 25.1 will not apply in the following circumstances:
(a)  any disclosure required to be produced by Law or any listing rules applying to a party or any of its related companies (except that this paragraph does not apply to clause 26.4);
(b)  in respect of information already in the public domain (other than as a result of breach of this clause 28);
(c) disclosure to solicitors, barristers or other professional advisers (including auditors) under a duty of confidentiality;
(d) 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 Principal to maintain confidentiality of the information, in form and substance satisfactory to the Principal;
(e) disclosure to an employee, agent, related entity or contractor relevant to a party ("Associate"), if such Associate first gives a binding covenant to the Principal to maintain confidentiality of the information, in form and substance satisfactory to the Principal; or
(f) disclosure to a bona fide purchaser of the Contractor or the Principal of all or part of the shares in that party, if such purchaser first gives a binding covenant to the Principal to maintain confidentiality of the information, in form and substance satisfactory to the Principal.
26.3  If the Principal finds that this clause has been breached, the Contractor must take whatever action directed by the Principal Representative to remedy the breach.  The Contractor acknowledges that such a breach is categorised as a material breach under the Contract.
26.4 The Parties agree that they will not disclose any information of the kind referred to in section 275(1) of the PPSA under section 275(4) of the PPSA or authorise its disclosure except as required by section 275(7) of the PPSA.  Nothing in clause 26.2 (inclusive) permits disclosure of any information by a person under section 275(4) of the PPSA unless section 275(7) of the PPSA applies.
26.5 The obligations under this clause 25 survive termination of the Contract.

27 Representative

27.1 In accordance with the Act, the Principal 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.
27.2 The Principal has appointed the Principal Representative to issue instructions and to exercise any of the powers to be exercised by the Principal under the Contract and to have control and supervision of the Contractor’s obligations under the Contract.
27.3 The Contractor has appointed the Contractor Representative to receive directions from the Principal and to bind the Contractor on all matters pertaining to the performance of the Contract.

28 Personnel, assignment & sub-contracting

28.1 The Contractor may not assign, charge or otherwise encumber its rights or obligations under the Contract without the Principal’s prior written consent.
28.2 The Principal has the right to assign, charge or otherwise encumber any or all of the Principal’s obligations or rights under the Contract at any time.
28.3 The Contractor may not sub-contract its obligations under the Contract unless the Principal consents in writing to such arrangement.
28.4 The Contractor is required to make the rights of the Principal contained in this Contract a condition of any sub-contract work.
28.5 The Contractor must ensure that if any subcontract (or transactions under it) gives rise to a security interest over:
(i) any part of the Equipment which is critical to the Contractor discharging its’ obligations and liabilities to the Principal under the terms of this Contract; or
(ii) any part of the Principal’s Personal Property, the Contractor will ensure that the security interest is enforceable, perfected (including, where possible, by control in addition to registration) and otherwise effective.
28.6 The Principal in its absolute discretion may direct the Contractor to remove from the Mine site, or from any activity connected with the provision of Goods or Services in connection with the Contract, any person employed in connection with the provision of Goods or Services in connection with the Contract for whatsoever reason it deems fit.

29 Personal Property security

29.1 If the Principal determines that this Contract (or a transaction in connection with it) is or contains a security interest for the purposes of the PPSA, the Contractor agrees to obtain consents, sign and produce documents, get documents completed and signed, and supply information which the Principal asks for and considers necessary for the purposes of enabling the Principal to apply for any registration (under whatever collateral class the Principal thinks fit), or give any notification, in connection with the security interest so that the security interest has the priority required by the Principal.  The Contractor consents to any such registration or notification and agrees to not make an amendment demand.
29.2 Costs of Further Steps and Undertaking Everything the Contractor is required to do under this clause is at the Contractor’s expense.  The Contractor agrees to pay or reimburse the costs of the Principal in connection with anything the Contractor is required to do under this clause.
29.3 Negative Pledge for the purposes of the PPSA
(a) For the purposes of this sub-clause, “the Principal’s Personal Property” means all personal property of the Principal the subject of a security interest granted in favour of the Principal under this Contract.
(b) The Contractor agrees:
(i) not to create any security interest or lien over any of the Principal’s Personal Property;
(ii) not to sell, lease or dispose of its interest in the Principal’s Personal Property;
(iii) not to give possession of the Principal’s Personal Property to another person except where the Principal expressly authorises it to do so;
(iv) not to permit any of the Principal’s Personal Property to become an accession to or commingled with any asset that is not part of the Goods or Services; and
(v) to notify the Principal at least 10 Business Days before:
A. the Contractor changes its name, principal place of business or place of registration or incorporation;
B. any ABN, ARBN or ARSN allocated to the Contractor changes, is cancelled or otherwise ceases to apply to it (or if it does not have an ABN, ARBN or one is allocated, or otherwise starts to apply, to it); and
C. the Contractor becomes trustee of a trust, or a partner in a partnership.
29.4 Exclusion of PPSA Provisions To the extent the law permits:
(a) for the purposes of s115(1) and 115(7) of the PPSA:
(i) the Principal need not comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4); and
(ii) sections 142 and 143 are excluded;
(b) for the purposes of s115(7) of the PPSA, the Principal need not comply with section 132 and 137(3);
(i) if the PPSA is amended after the date of this document to permit the Contractor and the Principal to agree to exclude other provisions of the PPSA, the Principal may notify the Contractor that the Principal need not comply with any of those provisions as notified to the Contractor by the Principal; and
(ii) the Contractor agrees not to exercise its rights under s275 of the PPSA , or to authorise the disclosure of any information under that section.
29.5 No notice required unless mandatory To the extent the law permits, the Contractor waives its rights to receive:
(a) any notice required under any provision of the PPSA (including a notice of a verification statement); and
(b) any notice, or lapse of time, that is required by any other law before a Principal or Receiver exercises a right, power or remedy under this document. If the law which requires a period of notice or a lapse of time to be given cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer). However, nothing in this clause prohibits the Principal or any Receiver from giving a notice under the PPSA or any other law.
29.6 Contractor may not register against the Principal The Contractor agrees not to apply for any registration of a security interest granted by the Principal under this Contract (or a transaction in connection with it) for the purposes of the PPSA unless the Principal otherwise agrees in writing.

30 Notices

30.1 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 Principal, the Principal’s Representative;
(ii) in the case of a notice to the Contractor, the Contractor’s 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.
30.2 A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.
30.3 If posted in Australia, a letter is taken to be received on the third day after posting. 
30.4 If posted overseas, a letter is taken to be received on the seventh day after posting.
30.5 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.
30.6 An email is taken to be received at the time shown in a delivery confirmation report generated by the sender’s email system.

31 These terms are exclusive

31.1 By executing the Contract the Contractor agrees to be bound by the terms in the Contract.
31.2 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.
31.3 The documents making up this Contract are complementary and should be read together as though they are a single document.
31.4 If there is any ambiguity, inconsistency or contradiction in or between the documents making up this Contract, these Standard Terms and Conditions will take precedence over the Contract Document.

32 Other matters

32.1 Any of the Principal’s rights under these terms can only be waived by the Principal in writing.
32.2 These terms may not be varied except in writing signed by both parties.
32.3 The Principal may exercise a right, remedy or power in any way the Principal considers appropriate.
32.4 If the Principal does not exercise a right, remedy or power at any time, this does not mean that the Principal cannot exercise it later.
32.5 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.
32.6 The Contractor must obtain at its own expense any necessary Licences or permits and comply with applicable Law in connection with its obligations under the Contract.
32.7 The Principal’s rights, remedies and powers under the Contract are in addition to any rights, remedies and powers provided by Law.
32.8 All employees, agents, contractors and sub-contractors used by the Contractor for the Contract, shall obtain the relevant induction competences before entering the Mine site.
32.9 Where the Contractor consists of two or more companies, the Contract binds those companies jointly and severally.

33 Governing law

33.1 The laws of New South Wales, Australia, govern the Contract.
33.2 The Contractor and the Principal agree to submit to the non-exclusive jurisdiction of the courts of New South Wales and the courts of appeal from them.
33.3 Where the PPSA applies to a security interest under this Contract, the PPSA governs that security interest.

Definitions

Act means the Mines Health and Safety Act 2004 & the Work Health and Safety Act 2011 (NSW) 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.

Accounts Payable Email Address means email address accounts@csamine.com.au.

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’s Representative means the person notified in writing by the Contractor to the Principal 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 Work Health and Safety Act 2011 (NSW) and the Work Health and Safety Regulation 2011 (NSW), 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 15.1.

Fee means the price payable for the Goods or Services.

Goods are the goods specified in the Order.

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.

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.

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

Law means any Australian statute, ordinance, code, law, order, decree, circular, rule or regulation or international treaty by any Australian government authority, whether now or at any time in the future in effect.

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.

Order is the purchase order for Goods or Services.

Owners means Isokind Pty Ltd (ACN 081 732 498) (as to 60%) and Acelight Pty Ltd (ACN 084 303 444) (as to 40%).

Personal Property means property that is personal property (as defined in the PPSA) and to which the PPSA applies.

PPSA means the Personal Property Securities Act 2009 (Cth) and any regulations made pursuant to it.

Principal means Cobar Management Pty Ltd (ABN 38 083 171 546).

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

Receiver includes a receiver or receiver and manager.

Registered General Manager means, the general manager of the Mine.

Services are the services specified in the Order.

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 Principal’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.

Tax Invoice means an invoice or other document including without limit a credit note or debit note, in a form that is valid under the applicable law of the jurisdiction in which a liability to pay Taxes is imposed, claimed, levied or assessed which must be held by a person for that person to be able to claim GST.

Technical Materials means any plans, designs, drawings, engineering information, data, specifications, reports, accounts and any other material the Principal provides to the Contractor.