TERMS & CONDITIONS

1) Definitions, interpretation and condition precedent 

1.1 In this Contract: 

Commencement Date means the commencement date stated in the Contract Particulars. 

Completion Date means the date for completion stated in the Contract Particulars. 

Company’s Representative means the person stated in the Contract Particulars.  

Contract means these terms and all schedules and attachments. 

Contract Sum means the sum stated in the Contract Particulars. 

Direction means any authorisation, demand, instruction, notice, order, permission, rejection or request given by the Company to ESS. 

ESS’s Representative means the person stated in the Contract Particulars. 

Intellectual Property Rights means all intellectual property rights, including: 

1. patents, copyright, electronic layout rights, registered designs, trade marks and any other right to have confidential information kept confidential; and 
2. any application or right to apply for any of the rights referred to in paragraph (a). 

Legislative Requirements means: 

1. acts, ordinances, regulations, by-laws, orders, awards and proclamations of the Commonwealth of Australia and any the State or Territory which applies to the Services; 
2. codes of practice, guidelines and Australian Standards, certificates, licences, consents, permits, approvals and requirements of organisations having jurisdiction in connection with the carrying out of the Services; and 
3. fees and charges payable in connection with the above. 

Materials means all plans, drawings, documentation, files, specifications, reports, minutes, computer and other models, calculations, inventions, developments, software, work methods, equipment or materials, created or prepared (at any time) by ESS, its employees, subcontractors or agents (whether alone or jointly with the Company or its employees or agents) in connection with or for incorporation in the Services or for use by the Company. 

Schedule of Rates means the schedule of rates set out in Schedule 2. 

Services means the services or works set out in Schedule 1, including all incidental things to be done and performed and all materials to be supplied in order to carry out the Contract Services in accordance with this Contract. 

Site means the places on or over or under which the Services are to be carried out together with any other places made available to the ESS. 

Superintendent means the superintendent or representative appointed by the Company or principal regarding the Services (if any).  

Working Day means a calendar day other than any Saturday, Sunday or public holiday where the Services are being performed. 

1.2  In this Contract, unless the contrary otherwise requires: 

1. where an expression is defined, any other part of speech or grammatical form of that expression has a corresponding meaning; 
2. no provision of this Contract is to be construed against a party only because that party was, or its advisers were, responsible for the preparation of this Contract; 
3. in resolving inconsistencies: 
4. Contract Particulars 
5. the Schedules to this Contract; 
6. these Standard Terms and Conditions, have priority in that order, to the extent of the inconsistency. 

2) Parties’ Obligations  

2.1  ESS shall: 

1. carry out and complete the Services to the satisfaction of the Company and the Superintendent; 
2. carry out and complete the Services with the degree of skill, diligence, care, professionalism and honesty expected from an experienced contractor in the trade, industry or profession relevant to the Services; 
3. carry out and complete the Services in accordance with this Contract; 
4. carry out and complete the Services in accordance with all laws and Legislative Requirements; 
5. provide suitable qualified personnel for each aspect of the execution of the Services. 

Without limiting the foregoing, ESS shall provide all labour, accommodation, materials, services, temporary works and facilities, equipment, plant and supervision required for the proper execution and completion of the Services. 

2.2  The Company shall pay ESS the Contract Sum, as this may be adjusted under this Contract, at the times and in the manner provided in this Contract. 

3) Payment Terms 

3.1  The Contract Sum is either a fixed lump sum or is determined in accordance with the Schedule of Rates, as stated in the Contract Particulars.  In either case, the Contract Sum includes all costs and expenses associated with the performance of the Services, including but not limited to all labour costs, costs of providing all necessary supervision, accommodation, temporary works, equipment, transportation costs and all duties and taxes. 

3.2  If the Contract Particulars specifies that the Contract Sum is exclusive of GST, the Company must reimburse ESS for the amount of any GST payable in respect of any supply made under or in connection with the Contract, provided ESS provides the Company with a tax invoice in respect of that supply. “GST” means goods and services tax levied in accordance with the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and the expressions “supply” and “tax invoice” have the same meanings as in that Act. 

3.3  Unless the Contract Particulars provides for specific payments terms, ESS may submit a claim for payment on a monthly basis for all Services have completed in the preceding month.   

3.4  Where the Contract Particulars provides for milestones, ESS may submit a claim for payment of the amount due in respect of the relevant milestone.   

3.5  Each claim for payment under the Contract shall take into account all adjustments in accordance with the Contract for the period and in respect of the matters the subject of the claim, including without limitation, any agreed adjustments for any variation to the scope of the Services.   

3.6  The Company shall pay ESS the amount due to ESS within 30 days after the date of receipt ESS’s claim for payment without set off or deduction.   

3.7  Where the ESS’s claim for payment is calculated on a schedule of rates or actual cost basis, the Company may audit ESS’s records to determine if the claim for payment has been correctly calculated once in any 12 month period. ESS must, on reasonable notice from the Company, give the Company and any persons nominated by the Company (which may include the principal and/or the Superintendent), access to all relevant records to enable them to carry out an audit under this clause 3.7. 

4) The Parties’ Representatives 

4.1  ESS will appoint a competent representative named in the Contract Particulars who: 

1. will be deemed at all times to have authority to act on behalf of ESS in all matters relating to this Contract; and 
2. attend any meetings required on behalf of ESS. 

4.2  Any Direction given to ESS’s Representative shall be deemed to have been given to ESS. 

4.3  The Company shall appoint a Representative named in the Contract Particulars to exercise its functions under this Contract who will be deemed at all times to have authority to act on behalf of the Company in all matters relating to this Contract. 

4.4  Either party may by notice in writing change its appointed representative. 

5) Removal of ESS’s Personnel 

The Company may by notice in writing instruct ESS to remove any person from the Site or the provision of the Services if the Company in good faith reasonably considers that such person has engaged in negligent or unsafe conduct and ESS must ensure that such person shall not again be employed or engaged for the provision of the Services. 

6) Variations 

6.1  The Company may Direct ESS to vary the Services, and no variation shall invalidate this Contract.  The price of any variation shall be agreed between the parties, or if not agreed, priced in accordance with reasonable rates and prices determined by ESS, taking into account the rates set out in the Schedule of Rates, if applicable. The price of any variation shall be added to or deducted from the Contract Sum, as the case may be. 

6.2  If ESS believes that any Direction by the Company constitutes a variation, ESS must notify the Company of its intention to submit a claim for a variation within 5 Working Days of such Direction and prior to undertaking any services or work the subject of such Direction.  ESS must then submit the claim with full supporting details within 10 Working Days in writing. The Company may, at its discretion, approve the variation in writing. ESS shall not be entitled to a variation or any payment in respect thereof unless it complies with the provisions of this clause 8.4 and unless the Company approves the variation in writing as provided in this clause 8.4. ESS is under no obligation to perform any services direction which it considers constitutes a variation until such time as the Company approves the variation on writing. 

7) Warranty and Defects 

7.1  The ESS hereby warrants to the Company that: 

1. the Services correspond to the description in the Contract; 
2. the Services are of acceptable quality, incorporate only new materials (unless agreed otherwise), are performed with due care, skill and diligence, and to the standard acceptable amongst members of the trade, industry or profession relevant to the Services; 
3. the Services are free of all defects in workmanship and materials; 
4. the plant and equipment used by ESS for the Services is in good working order, suitable for the Services and in compliance with all safety regulations; 
5. it will comply with all applicable laws and Legislative Requirements in providing the Services; and 
6. it shall not infringe the Intellectual Property Rights (including the moral rights) of any person in providing the Services. 

7.2  Without limiting any of the Company’s rights, and without limiting any other warranty provided elsewhere in the Contract, ESS warrants that the Services will be free of any defects is materials or workmanship for a period of 12 months from the date of performance of the Services. 

7.3  if the Services are found to be defective under clause 7.2, ESS will in its absolute discretion either: 

1. refund the price for the Services as do not conform with this Contract; 
2. rectify, modify or replace at the ESS’s expense, such of the Services as do not so conform to this Contract; and/or 
3. supply again, at ESS’s expense, that part of the Contract Services which does not so conform to this Contract. 

7.4  If at any time during the Contract or the warranty period in clause 7.2, the Company becomes aware that the Services (or part thereof) do not comply with the Contract, it may notify ESS of the non compliance and ESS will take such action as it considers appropriate in accordance with clause 7.3. If after a reasonable time ESS has not taken action in accordance with clause 7.3 the Company may elect to accept the subject services or work, whereupon the cost of correcting the defect (or the amount representing the reduced net value of the subject Services) shall become due and payable by the ESS to the Company. 

8) Indemnity and Insurance  

8.1  ESS shall indemnify the Company from all damage to property, personal injury or death caused by the negligent act or omission of ESS in performing the Services provided that the obligation to indemnify will be reduced to the extent that the Company, or its employees, agents or other contractors caused or contributed to the loss. Nothing in this clause makes ESS liable for any loss which the Company would have been able to mitigate by reasonable actions. 

8.2  ESS shall effect and maintain workers compensation insurance in accordance with the legislation and awards applicable to the Services. 

8.3  ESS shall also effect and maintain during the period of the Services and variations to the Services: 

1. Insurance of its own plant, equipment and vehicles, including legal liability insurance on vehicles in the amount specified in the Contract Particulars in respect of any one occurrence; 
2. Public and product liability insurance covering liability arising out of any injury to or death of any person or any loss of or damage to any property, including any loss of use, in the amount identified in the Contract Particulars in respect of any one occurrence. 

8.4  ESS shall provide to the Company written evidence that the required insurances have been effected, and that they comply with this Contract by providing certificates of currency on request. 

8.5  Notwithstanding any other provision of this Contract, ESS shall have no liability to the Company (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) for loss of use, profit, revenue, business, data, contract or anticipated benefit or saving, or for any delay, financing costs or increase in operating costs or for any special, indirect or consequential loss. Otherwise, ESS’s maximum aggregate liability to the Company (whether for breach of contract, under indemnity, negligence or on any other legal or equitable basis) is limited to the Contract Sum. 

9) Safety and the Environment 

9.1  ESS shall, at all times maintain safe working conditions and comply with all relevant occupational health and safety and environmental laws and regulations. 

9.2  ESS shall immediately notify the Company of any incident in respect of safety or environmental conditions at the Site. 

9.3  Without limiting the generality of clauses 9.1 and 9.2, ESS shall strictly comply with any directions or procedures of the Superintendent or the Company on occupational health and safety and environmental issues, including any additional requirements set out in this Contract. 

10) Hours of Work 

No part of the \Services shall be executed by ESS outside of the agreed working hours stated in the Contract Particulars without the parties prior written approval. 

11) Termination 

11.1  This Contract commences on the earlier of the date of the Contract or the date ESS commenced carrying out the Services.   

11.2  The Company may terminate this Contract by giving 30 days notice if: 

1. ESS materially breaches this Contract and fails to rectify such breach within a period of 10 Working Days after delivery of the notice of the same in writing from the Company or such other time as may be stipulated in the notice; or 
2. ESS materially breaches this Contract and such breach is not capable of remedy; or 
3. ESS commits an act of bankruptcy or makes or enters into any arrangement or composition with its creditors or a receiver is appointed or being a company enters into liquidation either compulsorily or voluntary or suffers or allows any execution to be levied on its property or obtained against it or a statutory manager is appointed. 

Termination of the Contract under this clause 11.2 shall be without prejudice to the rights of either party accruing prior to termination. 

11.3 ESS may terminate this Contract by giving 30 days notice if: 

1. The Company materially breaches this Contract and fails to rectify such breach within a period of 10 Working Days after delivery of the notice of the same in writing from ESS or such other time as may be stipulated in the notice; or 
2. The Company materially breaches this Contract and such breach is not capable of remedy; or 
3. The Company commits an act of bankruptcy or makes or enters into any arrangement or composition with its creditors or a receiver is appointed or being a company enters into liquidation either compulsorily or voluntary or suffers or allows any execution to be levied on its property or obtained against it or a statutory manager is appointed. 

Termination of the Contract under this clause 11.3 shall be without prejudice to the rights of either party accruing prior to termination. 

12) Site 

12.1  Subject to the remainder of this clause, the Company shall allow ESS access to those parts of the Site reasonably necessary for ESS to comply with its obligations under the Contract. 

12.2  ESS acknowledges and agrees that: 

1. it shall not enter any part of the Site not reasonably necessary for ESS to comply with its obligations under the Contract; and 
2. it shall not have sole possession of any part of the Site. 

12.3  ESS shall comply with the security arrangements applying to the Site from time to time. 

12.4  ESS must not use the Site for any purpose not connected with the Services. 

12.5  ESS shall at all times during the execution of the Services promptly clear away and remove from the Site all rubbish and surplus equipment, plant and materials arising from the Services, and shall keep the site of the Services clean and tidy at all times. 

12.6  If the conditions at the Site are materially different to those which a reasonable contractor would have anticipated at the time of entering into this Contract ESS shall be entitled to a variation for the delay, disrupted, or any additional work or incurs additional cost or expense required or incurred as a result of Site conditions. 

13) Changes in Legislative Requirements 

ESS shall be entitled to a variation for any changes in the Legislative Requirements impacting the Services which occur after the date of this Contract. 

14) Novation, assignment and subcontracting 

14.1  Neither party may assign this Contract or any part thereof without the prior written consent of the other party. The Company acknowledges that ESS may subcontract part of the Services. 

15)Dispute Resolution 

15.1  All disputes ("Disputes") between the parties in connection with this Contract must be resolved in accordance with the provisions of this clause 15. 

15.2   If there is a Dispute between the parties relating to or arising out of this Contract then, within 5 Working Days of a party notifying the other party of the Dispute, the Dispute shall be referred to a senior manager from each party. 

15.3  If the Dispute has not been resolved to the reasonable satisfaction of each party within 10 Working Days (or such longer period as agreed by the parties) after being referred to the senior managers under clause 15.2, the Dispute will be referred to the Managing Director of the ESS and the general manager of the Company, who will meet and use all reasonable endeavours to resolve the Dispute by joint discussions. 

15.4  If the Dispute has not been resolved to the reasonable satisfaction of each party within 10 Working Days after being referred to the Managing Director of the ESS and a general manager of the Company in accordance with clause 15.3, the parties may agree to refer the dispute to a mediation or expert determination. Failing such agreement (or in the event, the dispute is not resolved in a mediation or expert determination), either party may commence litigation proceedings. 

15.5  Nothing in this clause 15 shall prejudice the right of a party to seek urgent injunctive or declaratory relief in respect of a Dispute under this clause 15 or any matter arising under this Contract. 

16) General 

16.1  A notice, approval, consent or other communication (“Notice”) in connection with this document must be: 

1. in writing; 
2. signed by the sender; 
3. either personally served or left at the address of the addressee, or sent by facsimile transmission or by email. 

16.2  A notice takes effect from the time it is received unless a later time is specified in it.  A notice is taken to be received: 

1. (in the case of delivery in person) when delivered, received or left at the address of the recipient shown in this document or to any other address which it may have notified to the sender; and 
2. (in the case of facsimile) on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient; 
3. (in the case of email) on production of a confirmed receipt from the sender’s email system, 

but if delivery or receipt is on a day which is not a Working Day, or is later than 5 pm (local time), it will be taken to have been duly given or made at the commencement of business on the next day which is a Working Day. 

16.3  Any party may change its address or facsimile for receipt of Notices at any time by giving written notice of such change to each party. 

16.4  This Contract shall be governed and construed in accordance with the laws of Western Australia, and the parties consent to the non-exclusive jurisdiction of the courts of Western Australia. 

16.5  The parties shall keep confidential the terms of this Contract and any materials or information provided or disclosed in respect of this Contract and shall only disclose the same as required by law and to those of its employees, or agents who need to have the information to enable the performance this Contract. 

16.6  ESS is an independent contractor and nothing in this agreement constitutes a partnership, joint venture or agency agreement. 

16.7  This Contract constitutes the entire agreement of the parties about its subject matter and any previous document, understanding and negotiation on that subject matter cease to have any effect. 

16.8  If any provision or part of any provision of this Contract is invalid, illegal or unenforceable, such provision or part thereof shall be severed here from and the remainder shall continue in full force and effect. 

16.9  The parties must each bear their respective costs of the negotiation, preparation, execution and delivery of this Contract. 

16.10  Expiry of the Contract or its termination, howsoever occurring, shall not affect or prejudice any terms of, or rights conferred by, the Contract which are expressly or by implication, intended to come into effect or continue in effect after such expiry or termination, including but not limited to, clauses 7, 8.1,14 and 15. 

16.11   The rights and remedies of a party under this Contract do not exclude any other right or remedy provided by law.