1. General.
These General Conditions (“Conditions”) shall govern the quotation, sale and supply of spare parts, components, products, lubricants and materials (“Goods”) by Enhanced Mining Solutions Pty Ltd (“Enhanced Mining Solutions”) (ABN: 51105663760) to the purchaser of the Goods (“Purchaser”).
2. Quotation.
Enhanced Mining Solutions’ quotations are valid for thirty (30) days unless otherwise stated, and are based on information provided by Purchaser. In the event that the information provided by Purchaser is incorrect, Enhanced Mining Solutions shall have the right to (i) alter and adjust its quotation and (ii)a variation to the Contract.
3. Contract Formation.
The contract between Purchaser and Enhanced Mining Solutions (“Contract”) shall be formed with (i) the execution by the parties of a separate written agreement, or (ii) Enhanced Mining Solutions’ acceptance in writing of a purchase order issued by Purchaser. These Conditions shall supersede any conflicting conditions of Purchaser even if not expressly rejected. All modifications and deviations to these Conditions shall be expressly agreed in writing by the parties to become binding.
4. Scope of Work and Supply.
The Goods shall be as specified in Enhanced Mining Solutions’ quotation as amended in the Contract. All spare parts, components, products, lubricants, materials, commodities and services not specifically mentioned therein are excluded.
5. Price.
The price for the Goods (“Contract Price”) shall be as specified in Enhanced Mining Solutions’ quotation as amended in the Contract. Unless otherwise specified in the Contract, the Contract Price includes for delivery of the Goods EXW (according to Incoterms 2010) point of manufacture, and is exclusive of any value added tax and sales tax (or equivalent). The Contract Price shall be paid free and clear of all deductions and withholding for taxes, duties, levies or other charges imposed by federal, state, regional or other governmental authorities outside Australia or under any applicable treaty for the avoidance of double taxation except as required by law. If any deduction or withholding is required by law, Purchaser shall on the due date for the payment in question pay to Enhanced Mining Solutions such additional sum or sums as shall, after the making of the deduction or withholding, result in the payment to Enhanced Mining Solutions of the net Contract Price. Purchaser shall make all necessary tax or other returns and all necessary payments in relation to any such deduction or withholding and shall pay and indemnify and hold Enhanced Mining Solutions harmless from liabilities for any sum, payable as a result of any failure, delay or error in any such matter. Purchaser shall promptly provide Enhanced Mining Solutions with all appropriate certificates, receipts or other documents evidencing the proper deduction or withholding.
6. Payment.
Unless otherwise specified in the Contract, payment of
the Contract Price shall be made by Purchaser in cash, without any deductions and free of charge to the bank account nominated by Enhanced Mining Solutions within thirty (30) days of receipt of Enhanced Mining Solutions’ invoice as follows: (i) 50% down payment upon acceptance of the Contract, (ii) and 50% upon notification to Purchaser that the Goods or an essential part thereof are ready for shipment. Enhanced Mining Solutions shall be entitled to charge pro-rata interest for delayed payments at a rate of the then applicable cash rate published from time to time by the Reserve Bank of Australia plus eight (8) percentage points, calculated from the due date to the date of payment. Purchaser shall only be entitled to any set off if Purchaser’s counterclaim is not in dispute or has been determined by final judgement. In addition, Enhanced Mining Solutions may suspend the further performance of the Contract if Purchaser fails to make a payment when due under the Contract.
7. Delivery. The delivery times specified in the Contract shall
commence upon the last to occur of (i) conclusion of the Contract, (ii) provision of all necessary documents, permits, approvals and other data to be provided by Purchaser, and (iii) receipt of the agreed down payment by Enhanced Mining Solutions. If Enhanced Mining Solutions is prevented or delayed from meeting agreed delivery times due to the actions or in-actions of Purchaser or its agents or other contractors, Force Majeure or due to other reasons outside Enhanced Mining Solutions’
control, the delivery times shall be extended accordingly and Enhanced Mining Solutions shall be entitled to reimbursement of all additional costs incurred as a result of such delay. Delivery shall be deemed timely if Purchaser was advised of the readiness for shipment by the agreed delivery time. Partial deliveries are permitted and shall be accepted by Purchaser. In the event that Purchaser fails to accept delivery, Enhanced Mining Solutions shall, at Purchaser’s expense, store the Goods and obtain such insurance policies covering losses and damages as Enhanced Mining Solutions considers appropriate.
8. Liquidated Damages for Delay.
In the event of a delay more than fourteen (14) days to the agreed delivery times (as extended in accordance herewith), which is attributable to Enhanced Mining Solutions, Purchaser shall, to the exclusion of all further rights and remedies, be entitled to claim liquidated damages as follows: for every full week of delay 0.5% of the Contract Price of the delayed Goods, or, if not individually priced, 0.25% of the Contract Price, up to an aggregate maximum of 5% of the Contract Price. Purchaser and Enhanced Mining Solutions acknowledge and agree that (i) the above liquidated damages represent a genuine pre-estimate of the reduction in value of the Goods and the potential loss suffered by Purchaser as a result of delay caused by Enhanced Mining Solutions, and do not constitute a penalty, and (ii) save as specified in this paragraph, Enhanced Mining Solutions shall not be liable for any delay in meeting any other date or milestone specified in the Contract, these Conditions or elsewhere.
9. Intellectual Property Rights.
As between the parties, each party shall retain ownership in all of its patents, patent applications, utility models, copyrights, trademarks, and any other statutory protection of a similar kind, as well as know-how and trade secrets, whether or not such rights are registered or capable of registration (“Intellectual Property Rights” existing prior to or created independently of the Contract. All Intellectual Property Rights developed by Enhanced Mining Solutions during the performance of the Contract or thereafter, including any improvement to the Goods, shall exclusively vest in Enhanced Mining Solutions. Subject to payment of the Contract Price, Enhanced Mining Solutions shall grant Purchaser a non-exclusive and non- transferable license to use Enhanced Mining Solutions’ Intellectual Property Rights in the Goods for the sole purpose of installing, operating and maintaining the Goods. Such license shall not include the right to disclose Enhanced Mining Solutions’ confidential know-how or trade secrets to third parties or to grant any sub-licenses. Any other use of such Intellectual Property Rights, including, without limitation, its copying or use fora modification, duplication or replication of the Goods, is strictly excluded from the scope of this license.
10. Confidentiality.
a.) Each party recognises the proprietary and confidential nature of the other party’s commercial, technical, financial and operational information and know-how relating to its business, facilities, products, techniques and processes (“Confidential Information”) and undertakes to hold in strict confidence any Confidential Information disclosed to it by the other party directly or indirectly, orally, in writing, through the supply of drawings, specifications, technical documents or through giving the permission to inspect plants on the premises of the other party or of third parties or in any other way as well as any knowledge based thereon, whether marked confidential or not, and shall, except as hereinafter provided, take all reasonable precautions to prevent the same in whole or in part from reaching third parties. Furthermore, the receiving party undertakes to use Confidential Information of the disclosing party solely for the purpose of the Contract, and shall make no use thereof without the prior written consent of the disclosing party. b.) However, the receiving party shall be under no obligation of confidence and restricted use as to any information and knowledge based thereon, where such information, as evidenced by documents of that time, (i) was in lawful possession of the receiving party prior to the disclosure thereof and had not been obtained by receiving party either directly or indirectly from the disclosing party, (ii) has after disclosure been lawfully disclosed to the receiving party by a third party having rightful possession thereof and no obligation of secrecy as to the said information, (iii) has entered before or after the conclusion of the Contract into the public domain through no act or failure to act by the receiving party, (iv) is at any time developed by or for the receiving party independently of any Confidential Information of the disclosing party, or (v) is requested to be disclosed pursuant to applicable law, governmental regulation or legal process, provided, however, that such party shall give to the disclosing party a prompt written notice of such request, shall disclose only such Confidential Information as is required by such authority or process, and shall take reasonable steps to protect the confidentiality of such disclosed information to the extent possible. Confidential Information disclosed under the Contract shall not be deemed to be within the foregoing exceptions merely because such information is embraced by more general information in the public domain and furthermore any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain.
c.) The receiving party shall limit access to Confidential Information
to its officers, employees and affiliates (an entity, including but not limited to subsidiaries, which directly or indirectly control, are controlled by, or are under common control with a party) to such extent as required for the purpose of the Contract on a need-to- know basis, provided that (i) such officers, employees and affiliates are bound by confidentiality undertakings substantially similar to this clause, and (ii) the receiving party shall be liable for any breach of confidentiality obligations hereunder by its officers, employees and affiliates as if it were a breach hereof by such party. Such disclosure by or to an affiliate of either party shall be deemed a disclosure by or to that party, respectively. The receiving party shall only have the right to disclose the disclosing party’s Confidential Information to other third parties after the disclosing party has, in its sole discretion and without any obligation to do so, expressly authorised the disclosure in writing and such third party has entered into confidentiality undertakings substantially similar to this clause.
d.) Without prejudice to any other rights or remedies, each party
acknowledges and agrees that damages alone may not be an adequate remedy for a breach of this clause by a party, and that the other party shall be entitled, notwithstanding the foregoing, to seek interim injunctive relief or such other relief that may be available under the applicable law.
e.) This clause shall survive termination or expiry of the Contract for whatever reason and shall be valid without restriction for period of fifteen (15) years from the date of the Contract.
11. Title and Risk of Loss and Damage.
Title to the Goods shall remain vested in Enhanced Mining Solutions and shall not pass to Purchaser until the Contract Price has been received by Enhanced Mining Solutions in full. The risk of loss and damage to the Goods passes to Purchaser upon delivery as per Clause 5 or as otherwise agreed in writing.
12. Changes.
If, pursuant to Purchaser’s written request or written acceptance of Enhanced Mining Solutions’ change proposal, any change is to be made to the Goods, the Contract Price and delivery time for the Goods as well as any other relevant matters shall be appropriately adjusted by written agreement of the parties to the extent required by any such change. Enhanced Mining Solutions shall not be required to implement any changes unless the change and all Contract adjustments have expressly been agreed in writing by the parties.
13. Warranty.
a.) Enhanced Mining Solutions warrants that the Goods shall be free from defects in material and workmanship, provided that any defect is claimed in writing within the warranty period of, unless otherwise specified in the Contract, twelve (12) months from the delivery of the respective defective part of the Goods according to the agreed condition of Incoterms or eighteen (18) months from the readiness for shipment of the respective defective part of the Spare Parts, whichever expires first.
b.) Enhanced Mining Solutions’ sole obligation under this warranty shall be at its discretion to repair or replace defective Goods. Replacement Goods shall be delivered at the place of delivery as agreed in the Contract. The repair of defective Goods shall be performed at Enhanced Mining Solutions´ or its sub-suppliers´ workshops, unless Enhanced Mining Solutions arranges, at its entire discretion, the repair to be performed near the place of installation of the affected Goods. Enhanced Mining Solutions shall bear the expenses required for repair or replacement of the defective Goods only. To the extent needed for the remedy of any defect, any dismantling and reinstallation of any equipment and goods shall be at Purchaser’s own expense. The defective parts which have been replaced are the property of Enhanced Mining Solutions and shall be delivered, if required, to Enhanced Mining Solutions by Purchaser. The warranty period for any remedied defect shall be the longer of the remaining initial warranty period or six (6) months from the completion of the warranty remedy, provided that the warranty period for any remedied defect shall not extend beyond six (6) months from the expiry of the initial warranty period.
c.) This warranty shall not apply to consumable parts which by their nature are expected to be replaced in regular intervals (unless such consumable parts were defective upon delivery in which case they shall be replaced with new consumable parts) or in the event of defects or damages resulting from (i) normal wear and tear, (ii) misuse or unsuitable physical or operating conditions or environment, (iii) modifications to any Goods without Enhanced Mining Solutions’ prior written consent or repair or replacement of any Goods by Purchaser without the prior written consent of Enhanced Mining Solutions, (iv) improper or faulty installation or assembly, (v) improper or unsuitable operation and maintenance of the Goods, (vi) use of unsuitable utilities or materials, or (vii) corrosion or erosion caused by unsuitable utilities or materials or chemical, electro-chemical or electric influences.
d.) Except as specifically provided in these Conditions or the Contract, Enhanced Mining Solutions has not made and does not make any warranties, guarantees, representations, indemnities or the like, whether express, implied, statutory, or otherwise arising from trade usage or practice including without limitation warranties of uninterrupted or error-free operation, fitness for purpose or merchant ability and any such warranties, guarantees, representations, indemnities or the like are expressly disclaimed and excluded. Technical, design and other information and descriptions in brochures, catalogues or other written documentation shall only serve as a general description of the deliverables and shall not be deemed as agreed or guaranteed quality or performance.
14. Indemnities.
Each party shall indemnify and hold harmless the other party against any loss, expense or damage including, without limitation, reasonable attorneys’ fees on an indemnity basis, suffered or incurred by the other party in connection with the Contract resulting from death, personal injury, illness, disease or physical loss of or damage to third party property caused by the acts or omissions of such party. Each party's liability to indemnify as per the above shall be reduced proportionally to the extent that the acts or omission of the other party have contributed to the loss, expense or damage.
15. Third Party Intellectual Property Rights.
Enhanced Mining Solutions warrants that the sale or use of the Goods in accordance with the Contract shall not infringe any Intellectual Property Rights of third parties. Enhanced Mining Solutions shall indemnify and hold harmless Purchaser against any loss or damage (including reasonable attorneys’ fees and other costs of defending an action) arising from breach of this warranty provided that Purchaser (i) promptly notifies Enhanced Mining Solutions in writing of the claim, (ii) allows Enhanced Mining Solutions full control of the defence and any related settlement negotiations, (iii) fully cooperates with Enhanced Mining Solutions in the defence, (iv) Enhanced Mining Solutions shall not be liable for any infringement or alleged infringement resulting from any design, specification or other information or a combined operation with other equipment that is provided by or on behalf of Purchaser and (v) Purchaser shall in no event compromise or settle any proceedings or claims in connection with such infringement or alleged infringement or otherwise act against the reasonable interests of Enhanced Mining Solutions. In the event the Goods are held to be infringing and the use of the same is enjoined, Enhanced Mining Solutions shall, at its own expense and sole discretion, either procure the right to continue using the Goods, replace the Goods with non-infringing equivalents, or modify the Goods to eliminate such infringement. Purchaser shall have the right to select its own counsel to participate in any law suit or negotiations at Purchaser’s expense. All other rights and remedies of Purchaser are excluded.
16. Limitation of Liability.
a.) Enhanced Mining Solutions’ aggregate maximum liability for any and all costs, losses and damages of any sort and for whatever reason, resulting from or in any circumstance connected with the Contract or the use or delivery of the Goods, whether based on warranty, contract, strict liability, tort (including negligence) or any theory of law whatsoever and howsoever the same may arise, including without limitation payment of liquidated damages, claims, costs, liabilities, and damages shall not exceed 10% of the Contract Price. The afore-mentioned limit of 10% shall not apply to Enhanced Mining Solutions´ obligation to repair or replace defective Goods according to clause 13 (Warranty). Notwithstanding the foregoing, under no circumstances shall Enhanced Mining Solutions´ maximum aggregate liability, including all costs expended for the repair or replacement of defective Goods under the warranty, exceed 100% of the Contract Price.
b.) Under no circumstances, and notwithstanding any other provisions of the Contract, shall Enhanced Mining Solutions be liable under or in connection with the Contract, whether based on warranty, contract, strict liability, tort (including negligence) or any theory of law whatsoever and howsoever the same may arise, for any loss of contract, loss of goodwill, loss of market, loss of actual or anticipated profit, loss by reason of shut-down or non-operation, increased expenses of operation, increased use of raw materials, utilities or labour, damages arising out of or in connection with pollution or contamination, claims from customers of Purchaser, loss of use, loss of production, loss of revenue, loss of reputation, loss of business opportunities, loss of capital, downtime costs, loss of financial opportunity, economic loss, higher financing costs, wasted expenditure or costs of repair or replacement of equipment, goods and facilities and related third party services other than the Goods, or for any similar pecuniary loss whatsoever, even if it had been advised of the possibility of such, or for any indirect, incidental, consequential, special, exemplary or punitive damages or losses.
c.) Each party shall take all measures as reasonably may be expected in order to mitigate and diminish the damages and losses which the party may face due to any action or omission made by the other party.
d.) All claims under or related to the Contract must be made within latest two (2) years from the date of delivery as per clause 5 or as otherwise agreed in writing or the date of termination of the Contract and shall be barred upon the expiry of such time period.
e.) Nothing in this clause shall exclude or restrict any liability in any case of fraud, gross negligence (an act of failure to act which seriously and substantially deviates from normal industry practice and which is in reckless disregard of, or indifference to, the harmful consequences thereof) or wilful misconduct (a conscious, voluntary and deliberate act or failure to act which seriously and substantially deviates from normal industry practice and is done with the intention of causing or in disregard of the harmful consequences thereof, but excluding any error of judgement, mistake, act or omission, whether negligent or not, made in good faith) or shall exclude or restrict any liability towards third parties or which cannot by mandatory law be excluded or restricted.
f.) The parties agree that the Civil Liability Act 2002 (NSW) shall apply to these Conditions and that each party shall be proportionately liable for any and all of its acts and omissions which cause loss or damage and that such loss or damages shall be determined by Part 4 of the Civil Liability Act 2002 (NSW).
17. Force Majeure.
Each party shall have the right to suspend performance of its obligations under the Contract and be entitled to an extension of the delivery times to the extent that such performance is impeded, made unreasonable onerous or impossible by circumstances beyond its control, including, but not limited to, industrial disputes, governmental, legislative or other relevant activities or restraints, exceptional weather conditions, fire, earthquake, flood and other acts of nature or disasters, war (whether declared or not), extensive military mobilisation, insurrection, requisition, seizure, embargo, strikes, shortage of transport, general shortage of materials, restrictions in use of power, defects or delays in deliveries by subcontractors caused by similar circumstances (“Force Majeure”). The party affected by Force Majeure shall immediately notify the other party in writing of such occurrence and its cessation. Each party shall have the right to terminate the Contract by written notice to the other party if performance under the Contract has been suspended due to Force Majeure for more than three (3) months and Enhanced Mining Solutions shall be entitled to full payment of all Goods partly or fully completed under the Contract as well as all costs incurred in connection with the premature ending of the Contract.
18. Default.
Each party shall have the right to terminate the Contract by a written notice with immediate effect after having notified the other party of any material default, breach or repudiation of the Contract in writing with at least sixty (60) days notice, if such failure is not remedied by the other party within such period. Enhanced Mining Solutions shall also have the right to terminate the Contract in the event that new or changed export control laws and regulations come into force after the date of the Contract that prevent Enhanced Mining Solutions from obtaining any required individual export permit. Unless the Contract is terminated due to a failure by Enhanced Mining Solutions to perform any of its material obligations, Purchaser shall compensate Enhanced Mining Solutions for all work performed, and materials and services ordered under the Contract up to the effective date of termination as well as all costs in connection with the premature ending of the Contract. Any provisions that by their nature or otherwise reasonably should survive termination of the Contract shall survive a termination of the Contract, including without limitation clause 9 (Intellectual Property Rights), clause 10 (Confidentiality), clause 16 (Limitation of Liability), this clause 18 (Default) and clause 19 (Governing Law and Disputes).
19. Governing Law and Disputes.
These Conditions and the Contract shall be governed by and construed in accordance with the laws of the state of New South Wales, Australia, excluding its choice of law provisions and the United Nations Convention on the International Sale of Goods (CISG). Any dispute, controversy or claim arising out of or relating to these Conditions and the Contract, or the breach, termination or validity thereof, shall be finally settled by arbitration in accordance with the Guidelines and Rules for Arbitration of the Australian Commercial Dispute Centre by one (1) or three (3) arbitrator(s) appointed in accordance with said rules. The arbitration shall take place in Sydney, Australia. The language of the arbitration proceedings shall be English. Notwithstanding the foregoing, each party shall, at its discretion, have the right to seek injunctive relief in any competent court of law in accordance with the local laws.
20. Miscellaneous.
By conclusion of the Contract, the parties acknowledge and accept that (i) they have not relied on any previous written, oral or implied representation, inducement or understanding of any kind or nature, (ii) the Contract embodies the entire agreement between the parties with respect to the subject matter thereof, (iii) the Contract may not be amended except in writing and signed by the duly authorised representatives of both parties, (iv) neither party shall assign the Contract or its rights and obligations under the Contract without the express written consent of the other party, provided that Enhanced Mining Solutions may subcontract part of the work under the Contract, (v) in the event that any provision of the Contract becomes invalid, the remainder of the Contract shall not be affected and the parties shall attempt through negotiations in good faith to replace these with provisions corresponding as closely as possible to the original intention, (vi) no failure, delay or forbearance bya party to require performance of, exercise or enforce any right or remedy under these Conditions shall be deemed or construed in any manner as a waiver of the right or remedy or of any other rights or remedies nor shall such failure, delay or forbearance operate as a bar to the exercise or enforcement of the right or remedy at any time of times thereafter, and (vii) a waiver of any right or remedy conferred by these Conditions shall only be effective if it is given in writing and expressly refers to the right or remedy to which it relates.
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