1. Definitions

1.1. In the Agreement unless the contrary intention appears:

Purchase Order a document entitled ‘Purchase Order’ and issued by the Principal to the Contractor for the supply of Goods and/or Services in accordance with this Agreement and includes any schedules attached;

Agreement means the agreement between the Principal and the Contractor comprised of the Purchase Order, Form of Agreement, Iron Mine Services Pty Standard Terms and Conditions and all other documents annexed to this document or specifically incorporated by reference;

Background IP means the Contractor’s Intellectual Property Rights which:
(a) are in existence at the date of this Agreement; or
(b) come into existence after the date of this Agreement otherwise than in connection with this Agreement;

Business Day means any day other than a Saturday, Sunday or public holiday in Perth, Western Australia;

Commencement Date means the commencement date (if any) specified in the Form of Agreement;

Confidential Information means all information (other than information already in the public domain) provided by the Principal to the Contractor pursuant to this Agreement;

Contractor means the person, firm or Company named in this Agreement as the supplier of Goods and/or Services and includes all Personnel engaged by the Contractor;

Defective Goods and/or Services means Goods and/or Services or the results of such which are not in conformity with this Agreement, or are of inferior quality or workmanship;

Employee Claim means any Claim in respect of any death, injury or occupational disease of any person employed or engaged by the Contractor which arises out of, or is caused by, the supply or non supply of the Goods and/or Services by the Contractor;

Equipment means the equipment supplied by the Contractor for the purpose of supplying and performing the Goods and/or Services;

Fees means the price payable for the Goods and/or Services;

Force Majeure means an event which is not within the control of the party claiming force majeure relief, and which by the exercise of reasonable care, that party is not able to prevent or overcome and includes any act of god, war, revolution or any other unlawful act against public order or authority and a governmental restraint;

Good Industry Practice means the practices, methods and acts engaged in or approved by a person which, in the conduct of its undertaking, exercises that degree of due diligence, prudence and foresight reasonably and ordinarily exercised by skilled and experienced persons;

Goods and/or Services means all work to be carried out and provided by the Contractor in accordance with this Agreement including:
(a) all Goods and/or Services set out in any scope of work and in any applicable Purchase Order;
(b) other Goods and/or Services, functions, responsibilities and obligations that this Agreement
provides that the Contractor has, or will perform;
(c) all Goods and/or Services, responsibilities, and functions not specifically described in this Agreement but which are incidental to, or otherwise necessary for the Contractor to provide, the Goods and/or Services under this Agreement; and
(d) where applicable, the supply, hire or provision of any Goods;

HSE means health safety and environment.

Intellectual Property Rights and Intellectual Property means all intellectual property rights (present or future) created, discovered or coming into existence as a result of, for the purpose of or in connection with the provision of any Goods and/or Services or this Agreement (including without limitation all intellectual property rights developed by the Contractor in providing the Goods and/or Services);

Invoice means the invoice prepared by the Contractor and submitted to the Principal;

Insolvency has the same meaning as in the Corporations Act 2001 (Cth);

Party means the Contractor or the Principal;

Personnel means:
(a) in relation to the Principal, any of its employees, agents or representatives;
(b) in relation to the Contractor, any of its employees, Sub-contractors, their subcontractors, agents and representatives involved either directly or indirectly in the provision of the Goods and/or Services; and
(c) in relation to a Subcontractor, any of its employees, agents and representatives involved either directly or indirectly in the provision of the Goods and/or Services;

Principal means Iron Mine Services (ABN 77 608 402 446) and any Related Body Corporate (as defined in the Corporations Act 2001(Cth));

Principal’s Policies and Rules means the Principal’s polices and rules of conduct and operation as documented and updated from time to time;

Purchase Order a document entitled ‘Purchase Order’ and issued by the Principal to the Contractor for the supply of Goods and/or Services in accordance with this Agreement and includes any schedules
attached;

Site means the Principal’s place or places of operation or other location listed in the Form of Agreement;

Sub-contractor means any person engaged by the Contractor to perform all or any portion of the work under the Agreement on behalf of the Contractor, and includes the Sub-contractor’s employees, agents, consultants and invitees;

Special Conditions means the terms and conditions set out in any schedule attached to this Agreement;

Term means the Initial Term as defined in the Form of Agreement

Termination Date means the date on which the Goods and/or Services have been delivered and commissioned and the Contractor has demobilised all of its personnel and equipment from Site as
specified in the Agreement;

Third Party Claim means any claim in respect of:
(a) loss or destruction of, or injury or damage to, or loss of use of any real or personal property;
and/or
(b) any personal injury to or death of any person arising out of, or caused by, any act or omission, or
the supply or non-supply of the Goods and/or Services, by Contractor or Contractor’s Personnel.

Tax Invoice has the same meaning as in the GSTLaw.

1.2. In the Agreement, unless the contrary intention appears:

(a) a person includes any company, partnership, joint venture, association, corporation or other body corporate and any governmental department oragency;
(b) if a period of time is specified and dates from a given day or the day of an act or event, it is to be calculated exclusive of that day;
(c) a reference to an annexure, attachment or schedule is a reference to an annexure,attachment or schedule to this Agreement, and a reference to this Agreement includes an annexure, attachment or schedule;
(d) no provision of this Agreement will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Agreement or that provision; and
(e) Time will be of the essence of this Agreement in all respects

2 Nature of Agreement

2.1 This Agreement commences on the Commencement Date and continues until the Termination Date.

2.2 This Agreement does not confer upon the Contractor any exclusivity in respect of any Goods and/or Services at the Site or otherwise.

2.3 Any qualification to the Contractor’s acceptance of this Agreement is void and of no force or effect unless:

(a) agreed to in writing by the Principal as a variation to this Agreement; or
(b) the qualification is the provision by the Contractor of a warranty that exceeds the requirements of this Agreement.

2.4 In the absence of written acceptance of the terms of this Agreement by the Contractor the commencement of any part of this Agreement by the Contractor including supply of Goods and/or Services, shall be deemed an acceptance and an agreement shall be formed only in the terms set forth in this Agreement.

2.5 The Contractor represents and warrants it has thoroughly investigated and satisfied itself as to all local and other conditions affecting the supply of the Goods and/or Services including, without limitation, geotechnical, meteorological, geological, labour, accommodation, industrial relations, fuel, power, water and transport conditions.

2.6 The Contractor accepts full responsibility for any information it has used, including any conclusions arrived at from the information, and agrees to notify the Principal if it finds any errors, omissions or inconsistencies in information provided by the Principal.

2.7 Except as prescribed by applicable law, the Principal gives no warranty of accuracy, sufficiency or otherwise in relation to information provided to Contractor and disclaims all responsibility for such information.

2.8 The Contractor’s failure to attend to all or any of the matters which it is required to do or is deemed to have done under this clause 2 will not relieve the Contractor from its liability to perform its obligations under this Agreement and shall not justify any claim for a variation or otherwise.

2.9 Except as may be otherwise specifically provided in this Agreement, the Contractor is not entitled to any additional payment in respect of the movement or replacement of any of the Contractor’s Personnel or the Contractor’s Equipment including mobilisation and demobilisation which may become necessary during the term of the Agreement.

3 Supply & Quality of Goods and/or Services

3.1 The Contractor warrants that:

(a) It shall commence the supply of the Goods and/or Services from the Commencement Date and shall devote sufficient time and attention to the proper supply of the Goods and/or Services and shall supply the Goods and/or Services in full on or before the Termination Date.
(b) The Goods and/or Services match the description of such in this Agreement.
(c) The Goods and/or Services are supplied in accordance with Good Industry Practice, the Principal’s Specifications and in accordance with all applicable legislation, laws or regulations.
(d) All equipment used by the Contractor in the supply of the Goods and/or Services is in safe working condition, complies with all statutory and regulatory requirements applicable to such equipment, and is maintained and operated by suitably qualified and competent Personnel.
(e) All Goods supplied shall:

(i) be of merchantable quality and fit for usual purpose and any purpose which the
Principal tells the Contractor;
(ii) have a life expectancy commensurate with what would be expected of similar goods provided for similar purposes by a competent and reputable supplier or contractor;
(iii) are manufactured strictly in accordance with any manufacturing drawings,Technical Specifications or description supplied to the Contractor by the Principal;
(iv) be free from any encumbrance, lien, mortgage, security or charge in favour of a third party or any other third party interest, from the time of delivery to the Principal.

These warranties are made on the Commencement Date and are repeated each month (on the first day of the month) throughout the Term and the Warranty Period.

3.2 The Contractor must:

(a) obtain all applicable permits, licences, exemptions, consents and approvals required for the Contractor to perform the Goods and/or Services;
(b) co-operate with staff, contractors and other persons providing Goods and/or Services to the Principal and must immediately bring to the attention of the Principal any conflict which may between the Contractor and any other person;
(c) comply with, and ensure that its Personnel comply with, the Principal’s Policies and Rules and any lawful direction by the Principal in respect of the supply of Goods and/or Services.

4 Site Access and Safety

4.1 The Principal is permitted to, and grants to the Contractor, its employees and its Subcontractors, a non-exclusive and non-assignable licence to access the Site during the term of this Agreement, to enable the Contractor to supply the Goods and/or Services.

4.2 The Contractor must, in supplying the Goods and/or Services:

(a) not interfere with the Principal’s activities or the activities of any other person at the Site;
(b) be aware of and comply with, and ensure that the Contractor’s Personnel are aware of and comply with, all:
(i) applicable laws including HSE legislation, regulations, industrial awards and agreements;
(ii) of the Principal’s Policies, to the extent that the documents are applicable to the Contractor’s supply of the Goods and/or Services under this Agreement;and
(iii) directions given by the Principal, in relation to HSE.

4.3 If the Contractor’s Personnel do not comply with clause 4, upon being requested by the Principal, the Contractor must:

(a) correct the non-compliance promptly;
(b) take any necessary steps to avoid it happening again; and
(c) remove the person or applicable Contractor Personnel responsible for the noncompliance from the Site or any other premises of thePrincipal.

4.4 The Contractor must, unless otherwise directed:

(a) develop and submit a HSE Plan to the Principal addressing all relevant HSE issues
applicable to the provision of the Goods and/or Services; and
(b) have its HSE Plan approved by the Principal.

4.5 The HSE Plan, after approval by the Principal will form part of this Agreement as Schedule 5 – Contractor’s HSE Plan, and the Contractor must at all times, comply with the approved HSE Plan.

4.6 The Contractor must provide the Contractor’s Personnel with personal safety equipment and safety training appropriate to the Goods and/or Services. All Contractor Personnel are required to wear appropriate safety protection in accordance with, but not limited to, the Principal’s Policies and Rules.

5 Contractor’s Workforce

5.1 The Contractor shall supply all labour, supervisory and other personnel necessary for the supply of the Goods and/or Services under this Agreement.

5.2 The Contractor shall employ or cause to be employed in upon or about the supply of the Goods and/or Services only such persons as are careful, skilled and experienced in their respective trades and callings and to the degree ordinarily expected from employees engaged in the supply of construction and operations.

5.3 The Principal reserves the right to refuse Site entry to any Personnel of the Contractor or its Sub-contractors.

5.4 The Principal shall provide accommodation and messing facilities for all persons employed in the supply of the Goods and/or Services by the Contractor or its Sub-contractors and all such persons shall be registered into the camp in the name of the Contractor.

5.5 The Principal reserves the right to refuse Site entry to any Site Personnel of the Contractor or its Sub-contractors who:

(a) have not undergone a medical screening within the 12 months prior to the date upon which they are seeking entry to Site; or
(b) in the opinion of the Principal’s medical officer (at its sole discretion), are not fit for work.

5.6 During the Term and extending for period of 6 months after the expiry of the Term, to the extent permitted by law, the Principal’s Personnel including former Principal Personnel or other onSite contractors are not to be employed, engaged or offered employment, by the Contractor, without prior written approval by the Principal and other contractor involved.

6 Industrial, Employee and Sub-contractor Relations

6.1 The Contractor is responsible for conducting its industrial and employee relations with its employees and Sub-contractors in a manner conducive to preventing any delay or disruption in the provision of the Goods and/or Services including by taking all prudent steps to maintain harmonious and productive relations with its employees and Sub-contractors.

6.2 The Contractor must ensure that the terms and conditions of employment of all of its Personnel engaged in the supply of Goods and/or Services under this Agreement are at all times regulated by an agreement made under the Fair Work Act 2009 (Cth).

6.3 The Principal may, at any time, request the Contractor to withdraw any of the following from providing any part of the Goods and/or Services:

(a) employees of the Contractor;
(b) Sub-contractors of the Contractor;
(c) employees of Sub-contractors of the Contractor;or
(d) any other person engaged directly or indirectly by the Contractor.

6.4 On request pursuant to clause 6.3, the Contractor must promptly arrange for the person to cease being involved in any way in the provision of the Good and/or Services notwithstanding any provision in any other contract. The Contractor must replace the person with a person of suitable ability, experience and qualifications within a reasonable time period specified by the Principal.

7 Plant & Equipment

7.1 The Contractor must ensure that all Equipment:

a) is properly manufactured, of merchantable quality and fit for the purpose for which it is
intended;
b) is of such safety as the Principal is entitled by law to expect;
c) complies with all relevant laws and Australian industry and safety standards; and
d) is inspected and tested to ascertain it is safe and fit for purpose before use at the Site
and appropriate records are kept of the inspection and testing.

7.2 The Contractor agrees to supply the Contractor’s Equipment at its own risk and expense and to maintain such on Site and in safe, operable, good working condition throughout the term of this Agreement.

7.3 The Principal may reject any item of the Contractor’s Equipment which it determines is unsuitable for the purposes of this Agreement. If any item is so rejected then it shall be either repaired or replaced to the reasonable satisfaction of Principal within 2 days of notification by Principal. The Contractor shall provide all spare parts and consumable items for the
Contractor’s Equipment.

7.4 Any plant, equipment, tools, appliances or other property and items that the Principal provides to the Contractor to enable it to complete this Agreement (Principal’s Property) remain the Principal’s Property and must only be used for the purposes of fulfilling the Contractor’s obligations under this Agreement.

7.5 The Contractor is responsible and must compensate the Principal for any loss or damage to or waste of the Principal’s Property or the Principal’s premises by the Contractor’s employees, agents, contractors and/or sub-contractors.

8 Inspection and Information

8.1 The Contractor must keep the Principal’s Personnel fully informed on all aspects of the Goods and/or Services delivered, and must provide to the Principal’s Personnel all information required upon request.

8.2 Subject only to providing reasonable notice, at any time during the supply of the Goods and/or Services the Principal’s Personnel shall have the right to inspect, examine, review and witness tests on the Goods and/or Services or their results at:

(a) Site;
(b) the Contractor’s premises; and
(c) at the premises of any of the Contractor’s Sub-contractors.

8.3 If, as a result of any review, inspection, examination, or witnessing of testing, the Principal’s Personnel are not satisfied that the Goods and/or Services will comply in all respects with this Agreement and the Contractor is informed in writing of the relevant person’s dissatisfaction, the Contractor agrees to take such steps as are necessary to ensure compliance.

9 Supply and Acceptance of Goods and/or Services

9.1 If in the opinion of the Principal’s Personnel, the Goods and/or Services supplied fall behind the delivery program contemplated by this Agreement, the Principal’s Personnel may direct the Contractor to increase its workforce, Contractor’s Equipment, number of shifts or to take other action.

9.2 The Contractor is responsible for any additional costs incurred as a result of such direction by the Principal’s Personnel.

9.3 The Principal will not be deemed to have accepted the Goods and/or Services until it has had a reasonable time to inspect and test the results of the Goods and/or Services. Payment for the Goods and/or Services before inspection does not constitute acceptance of them.

9.4 If upon inspection or testing during either the Term or the Warranty Period the Principal finds any of the Goods and/or Services to be Defective Goods and/or Services, it may:

(a) reject the Defective Goods and/or Services by notifying the Contractor that it is rejecting them; or
(b) make good the Defective Goods and/or Services; and at the Principal’s election the Contractor shall:
(c) refund to the Principal any payments made by the Principal in respect of any Defective Goods and/or Services that the Principal rejects; or
(d) make good free of charge any Defective Goods and/or Services that the Principal rejects; or
(e) reimburse the Principal for any expenses the Principal incurs in making good any Defective Goods and/or Services.

9.5 The remedies provided in this clause do not exclude any other remedies provided by law.

10 Remuneration

10.1 In consideration for the supply of the Goods and/or Services, the Principal shall pay the Contractor at the rates set out in this Agreement.

10.2 The rates set out in this Agreement shall be the sole consideration payable to Contractor under this Agreement, and are deemed to include all risks, liabilities and obligations expressed or implied in this Agreement or incurred in the course of the supply of the Goods and/or Services.

10.3 Except as otherwise provided in this Agreement; the Contractor shall pay all costs, expenses and liabilities incurred by Contractor in the course of the supply of Goods and/or Services required under this Agreement.

10.4 Except as otherwise provided in this Agreement the Contractor shall pay any and all Taxes associated with the supply of the Goods and/or Services.

11 Invoicing and Payment

11.1 Unless otherwise specified in this Agreement; the Contractor shall submit an invoice to the Principal at the end of each calendar month (or other period specified in this Agreement) for the Goods and/or Services supplied in that month or the specified period (as the case may be).

11.2 The invoice must set out particulars of all Goods and/or Services supplied by the Contractor and the amount payable by the Principal under this Agreement in respect of those Goods and/or Services, and how the amount of the invoice was calculated.

11.3 Unless otherwise specified in this Agreement, the Principal will pay all claims submitted by the Contractor within 30 days after the end of the month in which the Contractor claim was received(or such other period required by Legislation), except where:

(a) the Principal exercises its right to retain part of the Price pursuant to clause 11.3 (b); or
(b) the Principal disputes the invoice, in which case the Principal will pay the undisputed part of the relevant Invoice (if any) and dispute the balance.

12 Set Off

The Principal may deduct from any money due or becoming due to the Contractor pursuant to this Agreement, including but not limited to:all debts, damages, costs, expenses or any other moneys due from the Contractor or its Sub-contractors to the Principal under or by virtue of any provision of this Agreement, the supply or non-supply of the Goods and/or Services or the
Contractor’s presence on the Site;

(a) all costs, losses, charges, damages, liquidated sums and expenses which the Principal may have paid or incurred and which or for which the Contractor or its Sub-contractors, employees or agents is or are liable to bear, pay or make reimbursement to the Principal;and
(b) any monies retained pursuant to the provisions of this Agreement

13 Representatives

13.1 All directions or any permission given on behalf of the Principal to the Contractor, unless otherwise expressly provided herein, shall be given by the Principal’s Representative or the Principal’s Representative’s delegate in respect of whom notice has been given as hereinafter appears.

13.2 The Principal shall appoint a Supervisor for the purposes of this Agreement. The Supervisor shall be responsible for giving directions on behalf of Principal concerning the day to day operations and activities of the Contractor, provided that they do not amend the terms and conditions of this Agreement.

13.3 The Contractor shall employ and appoint at least one competent representative (Contractor’s Representative). If the Contractor is carrying out work on Site, the Contractor’s Representative must be present on the Site while the work is being supplied.

14 Extension of Time

14.1 The Contractor may request, by notice in writing, an extension of time for completing the required Goods and/or Services and which the Principal may or may not grant its approval or acceptance.

14.2 The Principal may not grant an extension of time:

(a) for any delay occurring more than 14 days prior to the date on which the Contractor gives notice; or
(b) for any delay caused by an event, other than a direction, act or omission of the Principal, occurring before the Completion Date but in respect of which the Contractor fails to request an extension before that date.

14.3 In determining whether to grant an extension of time, the Principal may have regard to whether the Contractor has taken all reasonable steps to prevent or minimise delay.

14.4 The Principal may at any time, and for any reason whatever, by notice in writing to the Contractor extend the time for completing the Goods and/or Services or part of the Goods and/or Services.

14.5 If the Principal grants an extension of time for delay caused by the Principal, then the Principal will reimburse the Contractor for:

(a) the verified additional costs the Contractor incurred as a direct consequence of the delay; and
(b) on-site overheads attributable to the delay, but the Principal will not be responsible for off-Site overheads, profit and any other cost, loss, expense or damage.

15 Default and Termination

15.1 If at any time the Contractor suffers an Insolvency Event, the Principal may immediately terminate this Agreement by notice in writing to the Contractor.

15.2 The Principal may terminate this Agreement in whole or in part and with immediate effect, by notice to the Contractor, if:

(a) the Contractor or any Contractor Personnel commits an act of gross negligence, wilful misconduct, fraud or dishonesty in respect of any matter undertaken or required to be undertaken under this Agreement;
(b) the Contractor commits a breach of any provision of this Agreement which is capable of remedy and fails to remedy that breach at its own expense and to the reasonable satisfaction of Principal within 14 days of a notice by Principal specifying the nature of the breach;
(c) the Principal is expressly entitled to exercise a right of termination under any other provision of this Agreement.

15.3 The Principal may, at any time, terminate this Agreement in whole or in part without cause by giving the Contractor no less than 30 days notice in writing and the effective date thereof.

15.4 In the event of termination under clause 15.3, the Principal shall pay to the Contractor (less any amounts previously paid and subject to any rights which the Principal may have to suspend, withhold or set-off payments):

(a) the price for Goods and/or Services provided to the Principal prior to the effective date of termination and not included in any previous payment by the Principal;
(b) the cost of materials reasonably ordered by the Contractor for the purpose of providing the Goods and/or Services, which the Contractor is legally liable to accept and cannot otherwise utilise, but only if the materials become the property of the Principal upon payment;
(c) security and retention, if applicable;
(d) reasonable costs of demobilisation; and
(e) the reasonable costs of complying with any directions given by the Principal upon, or subsequent to, termination.

15.5 On the expiration or earlier termination of this Agreement, the Contractor must:
(a) stop work to the extent required by the Principal;
(b) take such action as necessary or as the Principal directs, for the transfer, protection and preservation of the Principal’s Property;
(c) do its best to minimise the cost of termination to the Principal;and
(d) immediately cease using all items of applicable Principal’s Property and Intellectual Property; and
(e) within 14 days of termination or expiration, return to the Principal (or if requested, erase and/or destroy) all copies in any form of the applicable IP in the possession or control of the Contractor and/or Contractor Personnel.

16 Variation to the Scope of Work

16.1 The Principal or the Contractor may request a change or variation to the scope of work or to an existing Purchase Order in accordance with this clause.

16.2 If the Principal requests, the Contractor must prepare and submit to the Principal a variation proposal addressing any requested variation to the scope of work. The Contractor must submit the variation within 7 days of the Principal’s request or within such other period as the parties agree is reasonable.

16.3 The Principal is not obliged to accept any variation proposal.

16.4 Except where the Contractor demonstrates to the Principal’s reasonable satisfaction that the Variation to Scope of Work Proposal would materially adversely affect the supply of the Goods and/or Services, if the Principal requests, the Contractor will implement a Variation to Scope of Work Proposal notwithstanding that a variation to the pricing has not been agreed in relation to that Variation to Scope of Work Proposal. If the parties have not agreed to any such variation to the pricing (or that a variation will not be made) within 30 days after the date of the request, the Contractor may require that any variation to the rates for the Goods and/or Services be
determined via the dispute resolution process set out in this Agreement.

16.5 If a variation proposal is accepted by the Principal, the parties will sign a variation to the scope of work and this Agreement will be deemed to be amended to incorporate the variations, with effect from the date on which the parties sign the Variation to Scope of Work Proposal or a date agreed upon by the parties.

17 Suspension

17.1 The Principal has the right, at any time and for any reason, to suspend this Agreement or any part of this Agreement by giving the Contractor 7 days’ written notice.

17.2 When the Contractor receives a notice of suspension from the Principal, it must suspend this Agreement until such time as the Principal directs that the Agreement is no longer suspended.

18 Insurance

18.1 The Contractor must before commencing supply of goods and/or services effect and maintain the relevant insurances, to a minimum coverage as specified in this clause including, but not limited to:
(a) Workers Compensation insurance. The Contractor must insure its liability against all Employees Claims and the insurance must:

(i) comply with all statutory requirements including providing any compulsory
statutory workers’ compensation benefits;
(ii) provide common law liability to a limit of not less than the $50,000,000.00 in relation to any one occurrence and unlimited as to the number of occurrences;
(iii) provide a waiver of subrogation in favour of the Principal;and
(iv) extend to include industrial diseases, common law supplied on an “A” and “B” class mine under the Mines Regulation Act.

(b) Public and Product Liability insurance. The Contractor must insure against all Third Party Claims and the insurance must provide cover:

(i) general and public liability to a limit not less $20,000,000.00 in respect of any one claim and unlimited as to the number of claims; and
(ii) include the Principal as an additional insured with respect to the liability incurred as a result of the acts or omissions of the Contractor;
(iii) be endorsed by the insurer to act as primary cover to any other insurance; and
(iv) provide a waiver of subrogation in favour of the Principal.

(c) Motor Vehicle Third Party Property Insurance. The Contractor must ensure that all motor vehicles used or brought onto the Site are kept licensed in accordance with any laws and insured against Third Party Claims under a comprehensive motor vehicle third party liability policy. The limit of liability shall be not less than $10,000,000.00 for any one occurrence and unlimited as to the number of occurrences;

(d) Professional Indemnity insurance – where the Services include professional services as nominated in this Agreement, the Contractor must take out professional indemnity insurance in respect of the supply of the Services to cover for liability to a limit of not less than $2,000,000.00 in relation to any one claim;

(e) Contractor’s Equipment insurance. The Contractor must insure all items of the Contractor’s Equipment that the Contractor brings onto Site for an amount of not less than its full replacement value (unless otherwise insured) to the satisfaction of the Principal; and

(f) Any other insurances required by law or regarded as sound commercial practice.

18.2 The Contractor must provide evidence of the currency of insurance to the Principal or its agent upon request.

18.3 The Contractor must ensure any subcontractor engaged by the Contractor in relation to the Goods and/or Services effects and maintains the insurances nominated in clause 18.

18.4 If the Contractor fails to;
(a) effect or maintain any of the insurance required by the Principal as specified in this clause, or
(b) have any subcontractor effect or maintain any insurances, then the Principal may at the

Contractor’s cost:
(i) effect and maintain that insurance;
(ii) pay the necessary premiums; and
(iii) recover from the Contractor the amount paid under this clause,
until the Contractor has complied with its obligations under this clause.

19 Title and Risk

19.1 Title in any Goods passes to the Principal when the Principal pays for the relevant Goods, or when such Goods are applied in the course of provision of the Services whichever is the first to occur.

19.2 To the extent permitted by law, the Contractor enters onto the Site and supplies the Goods and/or Services under this Agreement at its own risk. Risk in any goods remains with the Contractor until delivery to the Principal.

20 Liability and Indemnities

20.1 The Contractor is 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, arising directly or indirectly from:

(a) any breach of any warranty or any of the terms or conditions of this Agreement by the Contractor;
(b) the illness, injury or death of any of the Contractor’s employees, agents, contractors and/or sub-contractors arising out of or in connection with this Agreement;
(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 supply of the Goods and/or Services by the Contractor; and/or
(ii) 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
this Agreement;
(iii) 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;
(iv) any penalty imposed for breach of an applicable law in connection with the supply of the Goods and/or Services by theContractor;
(v) loss or damage to any plant, equipment, tools, appliances or other property owned, rented or hired by the Contractor and used in relation to this Agreement; and
(vi) any claim that the Goods and/or Services or the results of the Goods and/or Services, anything the Contractor does in providing the Principal with the Goods and/or Services, or the Principal’s use of the results of the Goods
and/or Services infringes or allegedly infringes the Intellectual Property
Rights of any person, except to the extent that any liability, loss or damage is directly caused by the Principal’s wilful misconduct or negligence or that of its employees, agents, contractors and sub- contractors.

20.2 Each indemnity in this Agreement is a continuing obligation separate and independent from the Contractor’s other obligations and survives termination of this Agreement.

20.3 Notwithstanding anything in this Agreement to the contrary but subject to clause

20.4, the Contractor shall not be liable to the Principal for any consequential, indirect or special loss or damages of any nature whatsoever whether based on contract, warranty, tort (including negligence) or otherwise including (but not limited to) those arising out of delay, loss of product, loss of production, business interruption, loss of revenue or loss of profits.

20.4 The exclusion of liability in clause 20.3 does not apply in relation to liability:
(a) in respect of any Third Party Claims;
(b) in respect of any Employee Claims;
(c) for any act or omission of fraud, dishonesty, wilful misconduct or misrepresentation
of the Contractor and/or any Contractor Personnel;
(d) any penalty imposed for breach of an applicable law in connection with the supply
of the Goods and/or Services by the Contractor;
(e) for breach of confidentiality or intellectual property;
(f) any loss arising from an occurrence which should be covered by a policy of insurance inthe name of the Contractor required under this Agreement.

20.5 Notwithstanding anything in this Agreement the Principal shall not be liable to the Contractor for any consequential, indirect or special loss or damages of any nature whatsoever whether based on contract, warranty, tort (including negligence) or otherwise including (but not limited to) those arising out of delay, loss of product, loss of production, business interruption, loss of revenue or loss of profits.

21 Intellectual Property

21.1 The Contractor gives the Principal a non-exclusive, royalty free licence to use all background Intellectual Property to the extent necessary to enable the Principal to exercise rights.

21.2 The Contractor acknowledges and agrees that all Intellectual Property shall be vested in the Principal and shall be the Principal’s property as and when created and the Contractor hereby assigns all rights, title and interest in and to the Intellectual Property to the Principal (including but not limited to any Intellectual Property created prior to or after the date of this Agreement).

21.3 The Contractor must not disclose, reproduce or otherwise deal with the Intellectual Property, or allow any other person to do the same, for any purpose other than to provide Goods and/or Services pursuant to this Agreement.

21.4 The Contractor warrants that:

(a) it owns the Intellectual Property Rights and that the use of the Intellectual Property does not and will not infringe any rights of third parties (including, without limitation, any Intellectual Property Rights);
(b) the provision of the Goods and/or Services does not and will not infringe the rights (including, but not limited to,Intellectual Property Rights) of any third party;
(c) it will, at no further cost to the Principal, procure all licences and consents to use any Intellectual Property Rights of a third party which are necessary to provide the Goods and/or Services;
(d) the Intellectual Property does not and will not infringe any rights of third parties (including, without limitation any Intellectual Property Rights);and
(e) the Contractor has the right to assign all Intellectual Property to the Principal in accord with clause 21.1.

22 Confidentiality

22.1 Each Party undertakes that it will not (except in the proper course of its duties under this Agreement or as required by law or by the other Party) disclose to any person any information of or relating to the other Party of which it has become possessed as a result of this Agreement or the negotiations preceding this Agreement including, but not limited to, the terms of this Agreement.

22.2 The obligations under this clause survive termination of this Agreement.

22.3 The terms of this Agreement may be disclosed to:

(a) any legal, financial and other adviser of aParty;
(b) the auditor of a Party; or
(c) a bona fide prospective purchaser of a Party or the business of that Party provided that such bona fide prospective purchaser agrees to keep the terms of this Agreement confidential.

23 Taxes

23.1 If GST has application to any supply made by the Contractor under or in connection with this Agreement, the Contractor may, in addition to the consideration payable or to be provided for the supply, subject to issuing a Tax Invoice, recover from the Principal an additional amount on account of GST, such amount to be calculated by multiplying the amount or consideration
payable or to be provided by the Principal for the supply by the prevailing GST rate.

23.2 Should any Taxes (other than GST) be levied on, in respect of, or in relation to, the Goods and/or Services these will be to the Contractor’s account. The Contractor will be responsible for the payment of those Taxes and will provide documentary evidence of the payment of those Taxes if made on the Principal’s behalf.

24 Assignment and Sub-contracting by theContractor

24.1 The Contractor shall not assign or sub-let the Agreement or any substantial part thereof except with the prior written consent of the Principal’s Representative and to a Sub-contractor approved by the Principal’s Representative. The Principal’s Representative may in the
Principal’s Representative’s absolute discretion refuse to consent or approve without giving =reasons therefore and may give that consent or approval on whatever terms and conditions the Principal’s Representative may in the Principal’s Representative’s absolute discretion think appropriate.

24.2 The Contractor may not mortgage, charge or encumber this Agreement, or any part of it, or any benefit, moneys or interest under it without the Principal’s prior written consent

25 Force Majeure

25.1 Except as provided by this clause, an affected party must use its best endeavours to remedy or mitigate the effect of any Force Majeure delay and comply with its obligations under this Agreement.

25.2 If the affected party is prevented from carrying out the whole or any part of its obligations under this Agreement by reason of a Force Majeure delay,then:

(a) the affected party must immediately give notice to the other Party of the occurrence of the Force Majeure delay and likely duration keep the other Party informed of any changes in the circumstances causing Force Majeure delay, including the end of Force Majeure delay; and

(b) the obligations of the affected party, so far as they are affected by that Force Majeure delay, will be suspended during, but no longer than, the continuation of that Force Majeure delay. No default under this Agreement will be held to have occurred;
(c) the affected party must use its best endeavours to overcome the Force Majeure circumstances.

25.3 Notwithstanding any provision of this Agreement, if Force Majeure delay causes the suspension of supply of the Goods and/or Services for a continuous period of 3 months or a cumulative period of 6 months in any 12-month period, either Party may terminate this Agreement by written notice to the other Party.

26 Dispute Resolution

26.1 If an issue or dispute arises under or in connection with this Agreement, the Parties agree that it should be dealt with at the lowest level possible.

26.2 If the Dispute is Site-specific, then:

(a) the Contractor and the relevant Principal’s Supervisor must confer at least once to resolve the Dispute or to agree on methods of doing so; and
(b) if the Dispute is not resolved at Site level within 7 days of the Dispute arising, either Party may refer the Dispute to the Contractor’s Representative or Principal’s Representative.

26.3 If a Dispute involves more than one Site, either Party may refer the issue to the Contractor’s Representative or Principal’s Representative.

26.4 If a Dispute is referred to the Contractor’s Representative or Principal’s Representative:

(a) the Contractor’s Representative and Principal’s Representative will facilitate the resolution of the Dispute; and
(b) the Parties agree to endeavour in good faith to resolve the Dispute.

26.5 If the Dispute has not been resolved within 30 days of the date that the Dispute is referred to a Representative either party may commence legal proceedings to resolve the Dispute.

26.6 Notwithstanding any Dispute, Contractor shall continue without delay to perform and execute the Goods and/or Services in accordance with this Agreement.

27 Notices

27.1 Any notice, approval, consent or other communication in relation to this Agreement must:

a) be in writing;
b) be marked for the attention of:

(i) in the case of a notice to the Principal, the Principal’s Representative; and
(ii) in the case of a notice to the Contractor, the Contractor’s Representative; and
(iii) be left at or sent by prepaid ordinary post to the last notified address of the Party, or sent by facsimile to the last notified facsimile number of the Party.

27.2 A notice, approval, consent or other communication takes effect from the time it is received unless a later time is specified in it.

27.3 If posted in Australia, a letter is taken to be received on the third day after posting.

27.4 A facsimile is taken to be received at the time shown in the transmission report of the relevant facsimile machine.

28 Other Matters

28.1 Agreement terms – The terms and conditions of this Agreement may not be varied, unless agreed upon by both parties and recorded in a schedule attached to this agreement.

28.2 Remedy – The Principal may exercise a right remedy or power in any way it considers appropriate.

28.3 Waiver – Waiver of any right arising from a breach of this agreement must be in writing and executed by the party granting the waiver. If the Principal does not exercise a right, remedy or power at any time does not mean that the Principal cannot exercise it later.

28.4 Government/Governing law and jurisdiction – The Contractor and the Principal accept the laws of the State of Western Australia as the proper law of the Agreement and the Contractor and the Principal hereby submit to the exclusive jurisdiction of the Courts of the State of Western Australia and of courts which may hear appeals there from.

28.5 Further Action – Except as expressly provided in this Agreement, each party must pay its own costs and expenses of negotiating, preparing and executing this Agreement and any other instrument executed under this Agreement.

28.6 Entire Agreement – This Agreement may be executed in counterpart. All counterparts, taken together, constitute one instrument. A party may execute this Agreement by signing any counterpart.

28.7 Relationship between the parties

(a) the Principal and the Contractor are independent contracting parties and nothing in this Agreement will make either party an agent or legal representative of the other for any purpose whatsoever. Nor does the Agreement grant either party any authority to assume or to create an obligation on behalf or in the name of the other party.
(b) the Principal is not responsible to the Contractor or any Contractor’s personnel for any payments in respect of any employment related expenses including
wages, annual leave, sick leave, long service leave, superannuation, workers’ compensation, accidents, sickness or lift insurance
(c) the Contractor indemnifies the Principal from and against all losses sustained by the Principal arising from any claims made by the Contractor’s Personnel relating to
the employment of the Contractor’s Personnel other than to the extent to which the losses are caused or contributed to by the Principal, including without limitation workers’ compensation claims.

29 Carbon Pollution Reduction Scheme Contract Price Variation for CPRS

(a) Either Party may seek to vary the Contract Price if there is an increase (or decrease) to the Contractor’s Direct Cost of supplying the Goods and/or Services arising from any legislative requirement which may:

(i) be imposed on the emission of greenhouse gases or which introduces a ‘carbon tax’ or emissions trading scheme, including a requirement to
purchase or surrender permits, or to pay any tax or other charge, levied or assessed for the purpose of reducing, or reducing the growth of, the
emission of greenhouse gases (Carbon Pollution ReductionScheme); and
(ii) come into effect after the Contract Date.

(b) In this clause, Direct Cost means an increase (or decrease)to:

(i) outgoing costs which are actually incurred by the Contractor, in its supply of the Goods and/or Services, exclusive of profit, overheads or any other mark-up whatsoever; and
(ii) which arise as a direct result of the CPRS and which could not have been avoided or mitigated by the Contractor.

(c) Either Party may make a claim for reimbursement of a Direct Cost by making a written claim (CPRS Claim).
(d) If the Contractor makes a CPRS Claim, the Contractor must provide the Company with a copy of their calculation of the Direct Cost. If the Company makes a CPRS Claim the Company must provide the Contractor with an estimate of their calculation of the Direct Cost.
(e) In making a CPRS Claim the Party making the claim will provide the other Party with all evidence reasonably requested by the other Party to substantiate the CPRS Claim.
(f) If the other Party disagrees with the CPRS Claim, the Company may, at its election, require a third party to conduct an audit of the Contractor’s relevant records and the Contractor will cooperate fully with and give reasonable access to its records to that third party for that purpose.
(g) Without limiting any other part of the Contract in valuing a CPRS Claim, the Parties shall not regard any Direct Cost incurred more than 60 days before the date on which the written notice was provided to the other Party under Clause 27.1 (a).
(h) Apart from what this Clause 29 provides neither Party may make any other Claim arising from the CPRS.

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