Words used in the Contract have the following meanings:
ADDCAR means all entities in “the ADDCAR Group” including Addcar Highwall Mining Pty Ltd (139 849 246), Highwall Mining Australia Pty Ltd (639 985 916), Highwall Mining Australia Asset Pty Ltd (639 985 818), Pipelion Operations Pty Ltd (639 985 961);
ADDCAR Representative means the person identified in the Schedule as ADDCAR’s contact for the purposes of the Contract, or such other person as ADDCAR may notify You in writing from time to time;
Authority includes any government or governmental, semi governmental, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity.
Australian Standard means a standard published by Standards Australia.
Business Day means a day on which trading banks are open for business in the state in which the Services are to be performed excluding a Saturday, Sunday or public holiday;
Claims means any claims, demands, debts, accounts, actions, expenses, costs, liens, liabilities and proceedings of any nature whatsoever;
Charges means the charges referred to in the Schedule for the provision of the Services under this Contract;
Commencement Date means the date (if any) specified in the Schedule or if no date is specified, the date which ADDCAR notifies to You in writing as the date for commencement of performance of the Supply;
Contract means the agreement between us comprising, in decreasing order of priority to the extent of any inconsistency, the Special Conditions (if any) identified in the Schedule, the Schedule (including any annexures) and these Standard Terms;
Dispute means a dispute arising out of or relating to this Contract, including a dispute as to breach or termination of this Contract or as to any Claims;
Economic Loss means loss of revenue, loss of profit, loss of custom, loss of goodwill, loss of overhead recovery, loss of business opportunity, loss of the use of money, loss of use of property, loss of contract, loss of production, loss or payment of financing charges or cost recovery, opportunity cost, payment of liquidated sums, payment of damages (whether under any other agreement or otherwise).
Equipment means any of Your or ADDCAR’s equipment used in connection with Services;
Expiry Date means the expiry date specified in the Schedule;
Force Majeure Event means any act, omission or circumstance over which ADDCAR could not reasonably have exercised control, including war, sabotage, civil commotion, national emergency, breakdown of plant, machinery or equipment, strike or other labour difficulty (whether or not involving employees of ADDCAR);
GST means a tax imposed under GST Law;
GST Law has the meaning given in section 195-1 of A New Tax System (Goods and Services Tax) Act 1999 (Cth);
Insolvency Event means:
(a) a party is liquidated, whether compulsorily or voluntarily (other than for the purpose of amalgamation or reconstruction whilst solvent);
(b) a party enters into any arrangement with creditors;
(c) a party becomes subject to external administration within the meaning of Chapter 5 of the Corporations Act 2001 (Cth) including having a receiver or administrator appointed over all or any part of its assets; or
(d) anything analogous or having a substantially similar effect to the events specified in (a) to (c) above occurs in relation to a party in any jurisdiction;
Intellectual Property means trade marks, trade names, domain names, logos, get-up, patents, inventions, registered and unregistered design rights, copyrights, circuit layout rights, and all similar rights in any part of the world (including know-how) including, where such rights are obtained or enhanced by registration, any registration of such rights and applications and rights to apply for such registrations;
Invoice means an invoice issued by ADDCAR under this Contract for the provision of the Supply;
Labour Hire Services means the provision by ADDCAR to You of ADDCAR People to perform Work under the supervision and direction of You or any of Your People and commonly referred to as labour hire;
Law includes any requirement of any statute, regulation, proclamation, ordinance, by-law or common law, present or future and whether state, federal or otherwise;
People include employees, agents, consultants and subcontractors but ADDCAR’s People do not include You or Your People;
Roster Hours means the hours stated in the Contract or as otherwise agreed in writing between ADDCAR and You;
Schedule means the Schedule attached to these Standard Terms or any other confirmation issued by ADDCAR to You from time to time for the supply of the Services which is stated or deemed to incorporate these Standard Terms;
Services means the services and the Labour Hire Services described in this Contract and any other services that ADDCAR agrees to provide to You under this Contract, including the delivery of Goods;
Site Regulations means any regulations of general application governing access to, and performance of work at, Your Site by contractors;
Standard Terms means these Standard Terms and Conditions for the supply of Services;
Supply means the performance of the Services and/or the delivery of the Goods by ADDCAR under the terms of this Contract;
Tax includes any GST, sales tax, levy, charge, impost, duty, fee, deduction, customs duty or any other tax or charge or duty which is assessed by any Authority;
Timetable means the time line for Supply by ADDCAR of the Services and/or the delivery of Goods as agreed between the parties;
Work means the work to be performed by ADDCAR People in relation to the provision of Services in accordance with the Schedule; and
Your Site means a site owned and occupied by You any of Your clients, agents or contractors to be attended by ADDCAR’s People in relation to the provision of the Services.
2.1 In this Agreement unless the context otherwise requires:
(a) headings are for convenience only and do not affect interpretation;
(b) the singular includes the plural and visa versa;
(c) a gender includes any gender;
(d) a reference to a person, partnership, company, firm or other entity include any of them;
(e) a reference to any legislation or provision of legislation includes all amendments, consolidations or replacements and all regulations or instruments issued under it;
(f) where the day on or by which any thing is to be done is not a Business Day, that thing must be done on or by the next Business Day;
(g) an agreement on the part of two or more persons binds them jointly and severally;
(h) a reference to “dollars” or “$” is to Australian currency;
(i) reference to “writing” includes electronic mail and facsimile transmission;
(j) where a word or phrase is defined, its other grammatical forms have a corresponding meaning;
(k) the word “include” in all its grammatical forms is not a word of limitation; and
(l) a reference to one or more things includes each part and all parts of that thing or group of things.
3 The Contract
3.1 The terms and conditions of this Contract prevail over all Your terms and conditions and can only be varied by written agreement between ADDCAR and You.
3.2 Any order or request by You for the provision of the Supply by ADDCAR which purports to include terms not expressly included in the Contract is of no effect and Your request is deemed to be exclusively on the basis of this Contract.
3.3 By instructing ADDCAR to proceed with the Supply, You agree to be bound by the terms and conditions of this Contract.
4.1 The Contract commences on the date of execution of the Contract and, unless otherwise terminated, continues until:
(a) the Expiry Date; or
(b) if performance of any part of the Supply remains incomplete at the Expiry Date, the Contract will remain in force until performance of the incomplete part of the Supply has been completed.
4.2 ADDCAR will use reasonable endeavours to ensure that the Supply is available from the Commencement Date.
5.1 ADDCAR will provide Services to You subject to the Contract.
5.2 ADDCAR may refuse to provide any part or all of the Services if, in its reasonable opinion, providing the relevant part or all of the Services may present a safety hazard for any person involved in providing the Services.
5.3 Any times for the performance of Services made known to, or requested by, You (whether by way of the Schedule, in the Timetable or otherwise) are estimates only and ADDCAR will not be liable for any Claim for late or non‑performance.
(a) ADDCAR People are ready to perform the Services in accordance with the Timetable, but You are unable or unwilling to allow those members of ADDCAR People to commence performance of the Services; or
(b) the performance of the Services is delayed or suspended for any reason other than the default of ADDCAR or any of the ADDCAR People,
ADDCAR may Invoice You for the reasonable costs and expenses of the delay or suspension.
5.5 You must not, during the Term, engage any third party to perform services equivalent to the Services (or any part of the Services) nor perform those services Yourself except:
(a) with ADDCAR’s prior written consent; or
(b) subject to clause5.6, You are satisfied, acting reasonably and after consulting with ADDCAR, that, for reasons which do not constitute a breach of clause22.1 of these Conditions, ADDCAR is unable to perform the relevant Services in accordance with the Contract.
5.6 If clause 5.5 applies, You may perform, or engage a third party to perform, such services only to the extent that ADDCAR is unable to perform the relevant Services in accordance with the Contract.
6 Your obligations – Labour Hire Services
6.1 In relation to the Work, You must:
(a) disclose to ADDCAR:
(1) the specific tasks and duties required to perform the Work;
(2) the equipment to be used by ADDCAR People; and
(3) where the Work will be performed;
to enable ADDCAR to match the competency, skill, knowledge, and experience of ADDCAR People to the Work;
(b) disclose to ADDCAR any relevant industry standards and practices, design and engineering assumptions, and occupational health and safety systems that ADDCAR People must comply with in relation to their performance of the Work;
(c) ensure that ADDCAR People comply with the Law applicable to the Work or to Your Site;
(d) supervise, monitor, manage and direct ADDCAR People in the performance of the Work;
(e) not direct ADDCAR People to perform any work for which they are not adequately trained or qualified and take reasonable steps to prevent them from doing so;
(f) identify where additional skills or development are required by ADDCAR People in the performance of the Work. If additional skills or development is required, You must:
(1) notify in writing and consult with ADDCAR in relation to the additional skills and development required by ADDCAR People to perform the Work;
(2) provide any induction, training or instruction as required to address the additional skills and development required by ADDCAR People to perform the Work; and
(g) provide adequate facilities and amenities for use by ADDCAR People at Your Site.
6.2 You must:
(a) allow or procure ADDCAR and the ADDCAR People unimpeded access to Your Site for the purposes of performing the Services;
(b) provide clear and timely responses to any queries raised by ADDCAR or reasonable requests for information made by ADDCAR People in relation to the performance of the Services; and
(c) provide, in a timely manner, all amenities, facilities, consumables, equipment, information and services identified in this Contract as “Principal Supplied Items”.
7 ADDCAR’s People – Labour Hire Services
7.1 If You believe that the performance, attendance or behaviour of a member of ADDCAR People (Individual) is falling below an acceptable standard, You will observe the following procedures:
(a) You will notify ADDCAR and the Individual of the behaviour;
(b) You may request to remove the Individual from the Work;
agrees that the performance, attendance or behaviour of the Individual is unsatisfactory, ADDCAR will remove the Individual from the Work; and
(d) if ADDCAR removes an Individual on the basis of unsatisfactory performance, attendance or behaviour, ADDCAR will replace the Individual as soon as reasonably practicable.
8 Variations to the Work – Labour Hire Services
8.1 You must not:
(a) vary the scope the Work, including the tasks of ADDCAR People or the type of equipment used by ADDCAR People, from that disclosed to ADDCAR; or
(b) require ADDCAR People to attend a site that ADDCAR has not previously attended for the purposes of this Contract,
unless You have:
(c) provided reasonable written notice to ADDCAR of Your intention to vary the Work; and
(d) disclosed to ADDCAR, in relation to the proposed scope of the Work as varied, the matters set out in clauses8.1(a) and 8.1(b) and, if relevant, allow ADDCAR the opportunity to attend the site for the purposes of clause15.2.
8.2 If, in the reasonable opinion of ADDCAR, ADDCAR People on Your Site do not have the skills, knowledge, experience or training to perform the Work, as varied in accordance with clause8.1, ADDCAR will use reasonable endeavours to supply ADDCAR People with appropriate skills, knowledge, experience or training as soon as practicable.
8.3 You must compensate ADDCAR for any additional costs and expenses incurred in relation to the provision of appropriate ADDCAR People as a result of a variation to the Work by You.
8.4 Nothing done under this clause8 limits, or relieves You of Your obligations under any other provision of this Contract.
9.1 ADDCAR will supply the Goods to You as described in the Schedule subject to the Contract.
9.2 Risk in the Goods passes to You on Delivery of the Goods in accordance with clause9.3.
9.3 Delivery will be taken to have occurred:
(a) at the time when the Goods are delivered to the Delivery Point (including by collection by or on behalf of You); or
(b) if Your representative is not able to take delivery of the Goods at the Delivery Point at a delivery time made known to You by ADDCAR for any reason, ADDCAR may return the Goods to ADDCAR’s premises or leave the Goods at the Delivery Point and delivery will be taken to have occurred if the Goods are:
(1) returned to ADDCAR’s premises, at 5:00 pm (local time) on the date of such attempted delivery; or
(2) left at the Delivery Point, at the time when the Goods are left at the Delivery Point.
9.4 ADDCAR will not be liable for any Claims arising as a result of or in connection with the Goods being left at the Delivery Point under clause9.3(b)(2). You will be liable for all costs incurred in returning the Goods to ADDCAR’s Premises under clause 9.3(b)(2).
9.5 Any Delivery Date is an estimate only and ADDCAR will not be liable to You for any Claim arising from late or non-delivery of the Goods. Without limiting the preceding sentence, any Delivery Date requested by You must be not earlier than any delivery lead time made known by ADDCAR to You.
9.6 ADDCAR may deliver any Goods by instalments and each instalment will be deemed to be sold by ADDCAR to You under a separate contract. Failure of ADDCAR to deliver any instalment will not entitle You to cancel the balance of the instalments. If You default in payment of any instalment, ADDCAR may elect to treat the default as a breach of this Contract relating to each other instalment.
9.7 Title in the Goods does not pass to You until You have paid for them in full in accordance with the Contract.
9.8 ADDCAR will use reasonable endeavours to ensure You receive the full benefit of all warranties provided by any manufacturer of any Goods but, except as otherwise expressly stated in the Contract, does not make any warranties or representations in relation to the Goods.
10.1 At the request of ADDCAR, You must pay storage charges to ADDCAR at commercial rates reasonably determined by ADDCAR for the period of time during which any Goods are stored at ADDCAR’s premises after Delivery.
10.2 Storage of Goods at ADDCAR’s premises after the Delivery Date will be at Your risk.
11.1 You must pay the Charges for the Supply in accordance with the Contract.
11.2 Unless, otherwise specified, Charges under the Contract do not include GST. You will pay to ADDCAR the amount of GST for which ADDCAR becomes liable for the Supply and such payment must be made at the time when You are required to pay any amount relating to the Supply or on demand by ADDCAR.
11.3 Any other Tax imposed in relation to the Supply must be paid by You in addition to and with the Charges payable for the relevant Supply.
11.4 Charges are those applicable at the date of the Contract and, unless otherwise stated in the Contract, are subject to adjustment by ADDCAR by reason of any:
(a) variation in the cost of labour, material and transport;
(b) variation in exchange rates, customs duty, freight insurance, shipping expenses and cartage;
(c) variation in the amount of work required to provide the Supply due to a variation in specification approved by the parties;
(d) other charges affecting the cost of production or performance; and
(e) change to the Delivery Point.
11.5 Unless the Contract states otherwise and without prejudice to ADDCAR’s rights under clause20.7, if the performance of the Supply is not commenced within 30 days after the Commencement Date (other than due to the fault of ADDCAR), ADDCAR may revise its Charges for the Supply.
11.6 Unless the Contract states otherwise, ADDCAR may charge You for all reasonable travel, accommodation and meal costs of ADDCAR People related to or in connection with the provision of Services.
11.7 All Work will be performed during Roster Hours unless otherwise agreed in writing by ADDCAR in which case the Charges will be increased in accordance with the rates set out in the Schedule or at the rates provided by ADDCAR to You.
11.8 ADDCAR may charge You, at the rates set out in the Schedule or at the rates provided by ADDCAR to You, for the provision of any additional Supply by ADDCAR which is due to any interruption, delay or the provision of incorrect or insufficient information by You or Your People or compliance with any statutory direction issued by any of Your People.
11.9 Any Charges quoted apply only if all of the Supply is purchased. Should You require part only, ADDCAR reserves the right to vary the Charges.
11.10 ADDCAR will notify you in writing of any adjustment to the Charges.
12.1 Unless otherwise agreed in writing by the parties ADDCAR will Invoice You in accordance with the Charges for:
(a) the Goods, after Delivery; and
(b) Services, at the end of each week in which the services are provided.
12.2 ADDCAR may raise Invoices under clause12.1 for progress claims for Goods delivered or Services supplied irrespective of whether all of the Services or Goods have been supplied.
12.3 Despite clause12.1, if You do not have a credit account with ADDCAR and unless otherwise agreed, ADDCAR may Invoice You, and You must pay to ADDCAR the amount of any such Invoice (in cash or by bank cheque) prior to ADDCAR commencing provision of the Services.
12.4 Where You have a credit account with ADDCAR, You must pay the amount of any Invoice within 30 days after the date of the Invoice.
12.5 Despite clause12.3 or any other agreement between ADDCAR and You regarding payment, ADDCAR may demand immediate payment in cash of all amounts outstanding (whether then due and payable or not):
(a) upon the happening of any one or more of the events specified in clause20, which entitle ADDCAR to cancel the Contract; or
(b) if ADDCAR considers that Your creditworthiness has become unsatisfactory.
12.6 Without prejudice to any other right or remedy available to ADDCAR, ADDCAR may charge You for interest on any overdue amounts that have not been paid in accordance with this clause12 at a rate of 2% per annum above the Westpac Market Lending Rate and such interest will accrue daily.
12.7 In the event of default by You in the payment of any moneys due to ADDCAR under the Contract, ADDCAR may, without prejudice to any other remedies available to it:
(a) withhold performance of the Services until You pay all amounts payable to ADDCAR under the Contract; and
(b) close Your credit account (if any) with ADDCAR.
12.8 You must not withhold payment of any amount stipulated in an Invoice that is not in dispute.
12.9 If You do not approve an Invoice, You must issue to ADDCAR a certificate stating the amount of the payment (if any) which is, in Your opinion, payable to ADDCAR and the reason for any difference (Certificate) within 5 Business Days after receipt of the Invoice.
12.10 By the time set out in clause12.4, You must pay ADDCAR at least the amount shown in the Certificate.
12.11 The parties must use their best endeavours to resolve any dispute in relation to an Invoice as soon as practicable, and if they are unable to resolve the dispute within 5Business Days from the date on which You issue a Certificate, the matter may be treated as a Dispute under clause24.
12.12 On determination of the amount properly payable, You must pay to ADDCAR the difference, if any, and interest in accordance with clause12.6 on such amount.
13 Occupational Health and Safety – All Services
13.1 Each party must at all times comply with its own occupational health and safety obligations under all applicable Laws.
13.2 Without limiting Your obligations under clause13.1, You must:
(a) notify ADDCAR immediately of any change to Your policies in relation to occupational health, safety and environment including the Site Regulations (if any);
(b) provide ADDCAR People with such access to Your Site and information as ADDCAR reasonably requests in relation to ADDCAR’s compliance with its occupational health and safety obligations in relation to the Contract;
(c) provide to the ADDCAR People all personal protection equipment which You are required to provide;
(d) ensure that all personal protection equipment provided by You under the Contract complies with all Laws and meets all relevant Australian Standards and all minimum requirements and recommendations of any Authority; and
(e) provide site inductions for all ADDCAR People.
14 Occupational Health and Safety – Labour Hire Services
14.1 The provisions of this clause14 apply only to Labour Hire Services.
14.2 In relation to the occupational health and safety of ADDCAR People on Your Site, You must ensure:
(a) that You and ADDCAR People comply with the Law, and all occupational health, safety and environment standards including but not limited to any of Your policies, Site Regulations (if any) and equipment operating manuals;
(b) that at all times ADDCAR and ADDCAR People have access to any of Your policies applicable to the Work, Site Regulations (if any), equipment operating manuals and any other document applicable to the safe performance of the Work;
(c) that a system is in place for ongoing identification and assessment of risks in relation to the performance of the Work, use of equipment, and Your Site;
(d) that ADDCAR People are provided with personal protective equipment as appropriate to the Work, the use of equipment and Your Site;
(e) that ADDCAR People are provided with all safety devices and warnings which may be necessary or desirable for ensuring the protection of ADDCAR People in performing the Work, using equipment or whilst on Your Site;
(f) that ADDCAR People are inducted to the Site prior to performing the Work to ensure a full understanding of the systems of work operating in relation to Your Site;
(g) that ADDCAR People receive instruction or are trained, where appropriate, in relation to the safe use of any equipment to be used in the performance of the Work prior to performing the Work to ensure a full understanding of that equipment;
(h) that ADDCAR People receive instruction or are trained, where appropriate, in relation to safe practices for carrying out their tasks as part of the Work prior to performing the Work; and
(i) that ADDCAR People receive appropriate training by means of daily toolbox talks or meetings (where appropriate) with regards to performing the Work, use of equipment, and Your Site.
14.3 You must notify ADDCAR of any change to the systems of work in relation to the Work, the use of equipment by ADDCAR People, or Your Site and, in particular, any changes occurring as a result of a risk assessment performed by You.
14.4 ADDCAR may attend the Site prior to the commencement of Work or the performance of the Services at Your Site to undertake a risk assessment and assess the adequacy of design and safe systems of work in relation to the Work or Services to be performed, the use of equipment by ADDCAR People and Your Site. You must provide ADDCAR, at no cost to ADDCAR, such evidence and information in relation to Your systems of work and Your compliance with occupational health and safety Law as ADDCAR may require.
15 Intellectual Property
15.1 Nothing in the Contract affects the ownership of any Intellectual Property owned by a party before execution of the Contract.
15.2 You must indemnify ADDCAR and its People from and against any Claims arising as a result of or in connection with ADDCAR or You infringing or having infringed the Intellectual Property rights of any person by using or dealing with any Intellectual Property provided by You to ADDCAR in relation to the Services.
15.3 If, in the course of the performance of any Work, You direct or commission ADDCAR People to create Intellectual Property for You as part of the Work, then You will own all Intellectual Property rights arising out of or in connection with the work performed under that direction or commission. Otherwise, all Intellectual Property rights arising out of or in connection with the provision of Services by ADDCAR to You and any documentation provided by ADDCAR pursuant to the Contract vest in ADDCAR on their creation absolutely.
16.1 You are solely responsible for any Claims arising as a result of or in connection with Your use of the Goods other than in accordance with any specification or instruction provided by ADDCAR to You in relation to those Goods.
16.2 Except as otherwise provided in the Contract, all terms, conditions, warranties, undertakings, inducements or representations whether express, implied, statutory or otherwise relating in any way to the Supply are excluded to the fullest extent permitted by Law.
16.3 Despite any other provision of this Contract, You agree that ADDCAR’s liability to You (including any party claiming through You) for any Claim for loss or damages incurred in connection with this Contract for breach of contract (including under any indemnity), tort (including negligence) and for any other Claim whether under statute, in equity, at law or otherwise will be as follows:
(a) if ADDCAR is in breach of this Contract, ADDCAR’s liability is strictly limited to:
(1) for goods, the replacement of the defective goods or the repair of the defective goods or the repayment (or allowance) of the invoice price of the defective goods, at ADDCAR’s option;
(2) for services, the supply of the services again or the payment of the costs of having the services supplied again, at ADDCAR’s option; or
(b) where the loss or damage is not covered by clause16.3(a), ADDCAR’s maximum liability to You (or any party claiming through You) will be an amount equivalent to the proceeds actually recovered by ADDCAR under any policy of insurance held by ADDCAR in relation to the loss or damage.
16.4 Despite any other provision in the Contract, ADDCAR will not be liable to You, and You release ADDCAR from any liability, in relation to any Economic Loss and indirect or consequential loss whether under contract, in tort (including negligence), in equity, under statute or otherwise.
16.5 The provision to ADDCAR of any documents evidencing or relating to any relationship, arrangement, contract or understanding between You and any third party is for information purposes only and does not affect, and must not be used to interpret, the scope of ADDCAR’s engagement to perform the Supply.
17 Indemnities and Insurance
17.1 You must indemnify ADDCAR from all Claims for:
(a) injury to or death of any person (including ADDCAR People or Your People) or damage to or destruction of any property caused by any negligent acts or omission by You or Your People or a breach of the Contract by You;
(b) failure by You or Your People or ADDCAR People under direction of You or Your People to comply with any Law; and
(c) without limiting clauses17.1(a) and (b), breach by You or Your People, of any of Your obligations under the Contract, or any negligent act or omission by You or Your People relating to the performance of the Contract.
17.2 Your liability to indemnify ADDCAR pursuant to clause 17.1 is reduced to the extent any act or omission of ADDCAR caused or contributed to the injury, damage or loss.
17.3 You must keep current at all times during the provision of the Supply:
(a) a policy of public risk insurance applicable to Your Site for an amount of not less than $10million in respect of any one single action or event or such higher amount as ADDCAR may from time to time reasonably require;
(b) workers compensation insurance in accordance with all relevant Laws; and
(c) a policy of insurance covering ADDCAR’s Equipment, at all times while at Your Site, for its full replacement value against loss, damage, theft and destruction.
17.4 At all times when the Goods are at Your risk until ADDCAR receives payment (including while the Goods are in transit), You must effect and maintain insurance covering loss of, or damage to, the Goods for their full replacement value.
18 Damage to Equipment
18.1 You will indemnify ADDCAR and ADDCAR People against all loss or damage to Equipment used at, or brought onto, Your Site in connection with the performance of the Services at Your Site, excluding:
(a) fair wear and tear; and
(b) damage caused by a wilful wrongful act or omission of ADDCAR People.
19.1 If You or Your People receive any confidential information from ADDCAR, You and Your People must not use or disclose such information unless:
(a) ADDCAR gives its written consent to disclosure of the information;
(b) the information enters the public domain (otherwise than as a result of a breach of an obligation of confidentiality, including this clause, by You or Your People); or
(c) the use or disclosure is required by Law.
20.1 You must not terminate the Contract, except as provided under clause20.2 and 20.6 without the prior written consent of ADDCAR and any such consent may be subject to You indemnifying ADDCAR from and against all Claims arising as a result of or in connection with the termination of the Contract by You.
20.2 If a party (the Non -Breaching Party) considers that the other party (the Breaching Party) is in breach of the Contract, the Non-Breaching Party may give the Breaching Party:
(a) a written notice specifying the date by which the Breaching Party must rectify the breach (which date must be reasonable in the circumstances) to the extent that the breach is capable of rectification; or
(b) if the breach is incapable of rectification, written notice specifying the Non-Breaching Party’s requirements to mitigate the effects of that breach.
20.3 If the Non-Breaching Party gives the Breaching Party a written notice referred to in clause20.2 and the Breaching Party does not dispute the definition and application of the breach, the Breaching Party must:
(a) comply with the written notice; and
(b) give the Non-Breaching Party a program to rectify the breach or mitigate the effects of the breach, as the case may be, in accordance with the terms of the Non-Breaching Party’s written notice.
20.4 The Non-Breaching Party may terminate the Contract by giving the Breaching Party 21days’ written notice if the Breaching Party has not complied with a written notice given under clause20.2.
20.5 Upon expiry or termination of the Contract for any reason:
(a) ADDCAR must cease performance of the Services and demobilise from Your Site as soon as practicable;
(b) You must allow or procure access to Your Site by ADDCAR and ADDCAR People for the purpose of removing ADDCAR’s Equipment, materials and other property;
(c) ADDCAR will be entitled to payment for all Services performed before termination and may Invoice You for those Services;
(d) ADDCAR will be entitled to payment of all reasonable costs of demobilisation; and
(e) if the Contract has been terminated by ADDCAR as a result of Your default, ADDCAR is entitled to recover from You any direct losses, costs, damages and expenses which ADDCAR suffers as a result of the termination.
20.6 Either party may terminate the Contract immediately by written notice to the other Party if the other Party is the subject of an Insolvency Event.
20.7 If ADDCAR is prevented from commencing the Services for more than 30days after the Commencement Date for any reason beyond ADDCAR’s reasonable control, ADDCAR may:
(a) terminate the provision of the Services by written notice to You and:
(1) You must reimburse ADDCAR for all reasonable costs and expenses incurred in preparing for the provision of the Services to You; and
(2) You release ADDCAR from all Claims in connection with or arising out of the non-performance of the Services under the Contract.
21.1 If You breach the Contract, ADDCAR may suspend the Supply until the breach or default is rectified to ADDCAR Representative’s satisfaction.
21.2 The exercise of ADDCAR’s right of suspension under clause21.1 does not restrict or prevent ADDCAR from exercising its rights of termination under clause20.
22 Protection of ADDCAR’s Interests/Non-Poaching
22.1 You must not employ, or solicit the employment of any individual member of ADDCAR’s People while they are engaged in the performance of the Work or within 6 months after they last performed Work for You under the Contract.
22.2 If any of ADDCAR’s People ceases to work for ADDCAR as a result of Your breach of clause22.1 you must:
(a) pay to ADDCAR a sum of $5,000.00 (Placement Fee). You acknowledge that the Placement Fee is significantly less than the actual amount of loss and damages likely to be suffered by ADDCAR as a result of Your breach of clause 22.1; and
(b) allow any further reasonable time that may be required by ADDCAR to replace the individual member of ADDCAR’s People in relation to the provision of the Services,
22.3 If ADDCAR is unable to perform the Services due to Your breach of clause22.1, or as a result of the employment of any ADDCAR People by any other contractor at the Site, then ADDCAR may suspend performance of the Services until such time as the individual member of ADDCAR’s People is replaced and ADDCAR may invoice You for, and You must pay, the reasonable costs and expenses of the suspension.
23 Force Majeure
(a) will not be liable for any delay or failure to provide the Supply if such failure or delay is due to a Force Majeure Event; and
(b) may terminate the Contract by written notice to You if the Force Majeure Event continues for more than 30 consecutive days.
24 Dispute resolution
24.1 A party may not commence any court or arbitration proceedings relating to a Dispute unless it complies with this clause 24 except where the party seeks urgent interlocutory relief.
24.2 A party claiming that a Dispute has arisen under or in relation to this agreement must give written notice to the other party to this contract specifying the nature of the Dispute.
24.3 On receipt of that notice by that other party, the parties must endeavour in good faith to resolve the Dispute expeditiously using informal dispute resolution techniques such as mediation, expert evaluation or determination or other techniques agreed by them.
24.4 If the parties do not agree within 7 days of receipt of the notice (or any further period agreed in writing by them) as to the:
(a) dispute resolution technique and procedures to be adopted;
(b) timetable for all steps in those procedures; and
(c) selection and compensation of the independent person required for such technique,
the Dispute will be referred to mediation administered by the Australian Commercial Disputes Centre (ACDC) before having recourse to arbitration or litigation.
24.5 The mediation will be conducted in accordance with the ACDC guidelines for commercial mediation which are operating at the time the matter is referred to ACDC (Guidelines).
24.6 The Guidelines set out the procedures to be adopted, the process of selection of the mediator and the costs involved.
24.7 The parties acknowledge that the purpose of any exchange of information or documents or the making of any offer of settlement pursuant to this clause24 is to attempt to settle the Dispute concerned. No party may use any information or documents obtained through any dispute resolution process undertaken pursuant to this clause24 for any purpose other than in an attempt to settle the Dispute concerned.
24.8 Unless otherwise agreed by the parties, the parties must continue to perform their obligations under this Contract despite the existence of a Dispute.
25 Joint and several liability
If You comprise 2 or more persons, each of You is jointly and severally liable for obligations and liabilities under the Contract.
26.1 A notice given to a party under the Contract must be addressed to the address set out in the Schedule or to the address last notified by that party to the other party.
26.2 Notices must be in writing and signed by an authorised representative of the sender. Notices are taken to have been given or made (in the case of delivery in person, by email, fax or post) when delivered, received or left at the specified address.
27 Assignment and subcontracting
27.1 You may not assign or encumber a right or interest under the Contract without the prior written consent of ADDCAR.
27.2 ADDCAR reserves the right to subcontract any part or all of the Supply.
27.3 ADDCAR may, at its discretion, assign its rights or sub-contract its obligations in connection with the Services.
28 No waiver
28.1 Just because ADDCAR does not insist on You performing a term of the Contract that does not mean that ADDCAR cannot later insist on You performing that term or another term.
28.2 If ADDCAR waives a breach of contract by You, the waiver only applies to the particular breach and ADDCAR can continue to insist on You performing the same obligation when it has to be performed again. A waiver by GM is only effective if it is in writing and signed by ADDCAR.
29 Entire Contract
The Contract constitutes the entire agreement between You and ADDCAR about its subject matter and supersedes all previous agreements, understandings and negotiations on that subject matter. The Contract may only be amended or modified by agreement in writing between You and ADDCAR.
30 Limitations Imposed by Law
The rights, duties and remedies granted or imposed under the provisions of the Contract operate to the extent not excluded by Law.
31 Relationship of the Parties
Nothing in the Contract constitutes or will be deemed to constitute a partnership between the parties or the appointment of one party as the agent of the other, or the employment of one party by the other. Other than as expressly provided in the Contract, no party has the authority or power to bind the other or to contract in the name of, and create a liability against, the other in any way or for any purpose.
32.1 Clauses0, 2, 9.7, 10.1, 15, 16, 17, 18, 19, 20.5, 24, 25, 26, 33 and this clause32 continue to apply after termination or expiration of this Contract.
33 Governing law and Jurisdiction
33.1 The Contract is governed by the Law applicable in NewSouthWales.
33.2 The parties submit to the non-exclusive jurisdiction of the courts of New South Wales and any courts competent to hear appeals from those courts.