These terms override any other terms and conditions provided by the Supplier.
1. Definitions and interpretation
- Supplier: the Party providing services as more particularly in Purchase Order and/or The Scope of Works.
- LMATS : LMATS Pty Ltd (the Client)
- Purpose: Is for the Supplier to provide Services described more particularly in The Scope of Works.
- Confidential Information: Any information which is not publically available and relates to either party’s operations, strategic plans, intentions, market opportunities, know-how, trade secrets or business affairs, in any form, including oral, visual or documented.
- Services: Includes provision of goods and/or services.
2. Services
(a) Within reason, the Services will be conducted by the Supplier in accordance with The Scope of Works for the agreement period following the execution of the Agreement, to be renewed by mutual agreement.
(b) The Supplier warrants that the Services and each part thereof has been and will be carried out: with all the skill, care and diligence as should be exercised by a fully qualified, experienced, competent and first-class supplier, fully skilled and experienced in the carrying out of work similar in nature, complexity and extent; using work methods and practices in accordance with all applicable Laws, standards and regulations in the Country; using only equipment and materials which are of good quality, sufficiently strong, properly designed for the project Site operations, and with an adequate strength and stability for each load, particularly with regard to mounting or fixing points, and fit for the purpose and use for which they are intended; and so that any Supplier’s Equipment is positioned or installed to prevent the risk of injury.
(c) The Supplier shall comply with the Laws, standards and/or regulations of the Country where activities are to be performed. The Supplier shall obtain all relevant permits required by the Supplier to carry out the Services, and the Supplier shall comply with all permits. The Supplier shall indemnify and hold LMATS harmless against and from the consequences of any failure to comply with this Clause in relation to the Services performed by the Supplier.
(d) The Supplier shall observe all Laws, standards and regulations in the Country regarding current health and safety regulations in relation to the Services as well as any requirements of the site, asset owner or LMATS .
(e) In addition to any requirements under any Laws in the Country, the Supplier shall as a minimum for all Services: plan the Services and produce necessary risk assessments; make documentation available at the Site to demonstrate conformity with legal requirements, such as: records of examination, maintenance, test, driver training, safety plans, daily reports and site reports; and make documentation available in accordance with LMATS ’s requirements.
(f) The Supplier undertakes and confirms: that they have knowledge of the climatic, hydrological and general conditions on the Site; that no obstacles, delays or cost increases in their supply or execution of the Services are foreseen; and that the performance of the Services will be in accordance with the applicable Laws, standards and regulations in the Country, and otherwise in accordance with LMATS ’s work instructions.
(g) The Supplier shall arrange and carry the costs of all other permits, licenses, consents, approvals, and authorizations required to enable each Supplier’s Personnel to perform the Services, including all work permits and visas required for such Supplier Personnel. The Supplier shall ensure that in respect of each Supplier’s Personnel who require a form of permit or permission to work in the relevant Country, it complies in full of its legal and tax obligations to verify the validity of all such permits and permissions.
(h) The Supplier shall participate in any and all briefings relating to the Services called by LMATS .
(i) The Services shall not be modified without agreement in writing by LMATS . LMATS is entitled to instruct Variations to the Supplier under this Agreement, the Service Contract including but not limited to ordering additional equipment.
(j) The Supplier shall be fully responsible for ensuring the safe operation of all Supplier’s Equipment used by the Supplier or its Subcontractors at Site complying with any Site, LMATS or client requirements.
(k) The Supplier will abide by LMATS ’s policies which may change from time to time and any applicable procedures and specifications provided by LMATS .
(l) LMATS shall during the term of the Agreement be a preferred customer of Supplier. The cooperation between Supplier and LMATS shall be given absolute top priority on all levels, including in connection with daily management and availability and bookings on the Supplier´s capacity. The Supplier shall continuously give first priority to orders and the execution of Maintenance Services towards LMATS .
(m) The Supplier shall in accordance with this Agreement and otherwise in accordance with Good Industry Practice provide all Services and remedy all improper performance or Defects caused by the Supplier according to this Agreement. The Supplier shall conduct the Services taking in consideration the highest standard available for this kind of Services. Good Industry Practice means those practices, methods, acts, techniques and standards which are prudent and in accordance with applicable and best practice for Supplier providing equipment and personnel for the purpose of servicing wind turbines for projects of a similar size and complexity as that of the Services.
(n) In the performance of the Services, the Supplier shall take all reasonable steps necessary to protect the environment on Site and to limit damage and nuisance to people and property resulting from pollution, noise, and other consequences of his operations on Site, as well as keep within all values prescribed by Laws and mandatory standards.
(o) The Supplier shall take all necessary precautions to avoid property or environmental damage during the performance of the Services. The Supplier is responsible for the removal of damage caused by the Services.
(p) The Supplier shall be responsible for avoiding pollution of the Site and must comply with all applicable environmental Laws. Contaminated or special waste is to be disposed of to a registered location, and such disposal shall be documented.
(q) Upon completion of the Services, the Supplier shall clear away and remove all Supplier’s Equipment, surplus material, wreckage, and rubbish related to Supplier’s work, leaving the Site and the work in a clean and safe condition.
(r) The Supplier shall not be entitled to subcontract in whole or in part the Services without prior written consent from LMATS .
3. Equipment
The parties agree that:
(a) The Supplier shall be responsible for all the Supplier’s Equipment at Site. When brought on to the Site, Supplier's Equipment shall be deemed to be exclusively intended for the execution of the Services.
(b) In the event of breakdown of the Supplier’s Equipment, the Supplier shall promptly make good or replace this equipment. The Supplier shall use its best endeavours to ensure that, in the event of a breakdown of any of the Suppliers’ Equipment, as the case may be, a repair of Suppliers´ Equipment will be effectuated so that normal use is re-established within twenty-four (24) hours from start of the said breakdown. In the event that such repair has not been completed and normal use re-established within twenty-four (24) hours, the affected Supplier’s Equipment shall be replaced by the Supplier.
(c) Any tools, equipment, devices and/or documents transferred by LMATS to Supplier enabling them to provide Services, shall at all times while being in Supplier’s possession be clearly marked Property of LMATS in a non-erasable manner. Such tools, equipment, devices and/or documents shall be kept and used at Supplier’s own risk and liability only for the purposes of providing Services, and Supplier will at own costs secure that they are properly insured. The tools, equipment, devices and/or documents shall be returned immediately to LMATS upon termination of this Agreement or at LMATS ’s demand.
4. Damage, Defects and Warranty Period
The parties agree that:
(a) The Supplier shall exercise all reasonable skill, care, and diligence in the performance of the Services. The Supplier is responsible for any damage he or any Supplier´s Personnel may cause due to their lack of professional competence or non-observance of ordinary precautions, even in case any such damages occur after the completion of the Services.
(b) The Supplier warrants that the Services shall be free from Defects and guarantees that the Services completed are the right ones in meeting LMATS ’s requirements and specifications contained in this Agreement.
(c) The Defects warranty period for Services shall be two (2) years from completion of the Services.
(d) The Defects warranty period under this Agreement shall not be regarded as a waiver of any right or remedy that LMATS is entitled to under the Laws.
(e) If during the Defects warranty period any Defects are identified in the Services, the Supplier shall at its own costs, in consultation and agreement with LMATS regarding appropriate remedying measures, revise, redo or otherwise make good such Defects after receipt of LMATS ’s notification of Defect. The Supplier shall also be responsible for any damage or loss to LMATS caused by such Defects. In case the Supplier fails to start the remedial action without undue delay after his receipt of the Defects notification from LMATS , LMATS shall be entitled to remedy the Defects at the Supplier’s risk and cost.
(f) For any part of the work that has been repaired or replaced by the Supplier during the Defects warranty period, the Supplier shall be liable for Defects in such repaired or replaced part of the work for one (1) year from the completion of the repair or replacement or for the rest of the original Defects warranty period, whichever is longer.
(g) The Supplier shall not be responsible for any Defects caused solely by the Supplier’s compliance with specific and absolute requirements stipulated by LMATS unless the Supplier knew or ought to have known that such requirements could potentially give rise to Defect(s).
(h) LMATS ’s payment after inspection and acceptance of the Services or any part thereof shall not include any waiver of LMATS ’s rights as stated under the Agreement.
5. Confidentiality
(a) Any confidential information transferred between the parties must be held in confidence and the confidentiality must be maintained.
(b) Neither party shall make use of the confidential information to the commercial, financial or competitive disadvantage of the other party.
(c) This clause shall survive termination of the agreement.
6. Delays and Suspension
The parties agree that:
(a) If the Supplier fails to Complete all Services under a Service Contract by the agreed Date for Completion the Supplier must pay to LMATS delay liquidated damages at the Delay Liquidated Damages Rate for each day of delay (or part thereof) between the Date for Completion and the earlier of: the Date of Completion; or the date on which the relevant Service Contract is terminated by LMATS .
(b) Delay liquidated damages are due within five (5) days of a written demand made by LMATS . The payment of liquidated damages does not exclude LMATS ’s right to: claim compensation for any other loss or damage suffered due to such delay; and/or exercise any other right LMATS may have in contract or in law.
(c) The Parties agree that delay liquidated damages are a genuine, fair and reasonable pre-estimate of the loss and damages likely to be sustained by LMATS as a result of the Supplier's failure to Complete all Services under a Service Contract by the Date for Completion.
(d) The Supplier's total aggregate liability for delay liquidated damages in respect of a Service Contract shall be limited to One hundred percent (100%) of the Contract Price.
7. Liability
The parties agree that:
(a) The risks of loss or damage to physical property and of death and personal injury which arise as a consequence of the performance of the Agreement shall be allocated between LMATS and the Supplier as follows.
(b) LMATS ’s risks, are the act, neglect or omission or breach of contract or of statutory duty of LMATS or of their respective employees or agents except where expressly made the responsibility of the Supplier under this Agreement or in a Contract; and change of Laws provided such change substantially changes the scope of works set out by LMATS .
(c) The Supplier’s risks are all risks other than those identified as LMATS ’s risks.
(d) Subject to the limitations set out in this Agreement, either Party shall defend, indemnify and hold harmless the other Party, its Affiliates and its or their directors, officers, employees, agents representatives, successors and assigns against any and all suits, actions or proceedings and from any and all claims, demands, losses, proceedings, damages, costs, charges, expenses or liabilities due to or resulting from any negligence or breach of this Agreement by the Indemnifying Party, its agents or employees and, where the Indemnifying Party is Supplier, its Subcontractors.
(e) Subject to this subclause and unless otherwise derived from this Agreement, neither Party shall be liable to the other Party for any loss of production, loss of profit or any other indirect loss whatsoever suffered by the other Party in connection with this Agreement, unless specifically provided for elsewhere in this Agreement or a Contract. Liquidated damages incurred by either Party shall not be considered an indirect loss.
(f) Notwithstanding anything to the contrary in this Agreement in general, no exclusion or limitation of liability as set out in this Agreement shall apply or have any validity in the event of (i) wilful misconduct or fraudulence; (ii) gross negligence; (iii) in case of death or personal injury; or (iv) mandatory liability under the applicable law.
(g) The Supplier shall indemnify LMATS on an after tax basis for and in respect of any income tax, national insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from, or in connection with, the Supplier or any other persons working for or provided by the Supplier being, or being treated as, employees of LMATS and/or any person other than the Supplier, where such recovery is not prohibited by law.
(h) The Supplier shall further indemnify LMATS on an after tax basis against all reasonable costs, expenses and any penalty, fine or interest incurred or payable by LMATS in connection with or in consequence of: any such liability, deduction, contribution, assessment or claim referred to in this clause; or any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by the Supplier, or any of those persons working for or provided by the Supplier, against LMATS or any other person arising out of or in connection with the provision of the Services as described in, and contemplated by, this Agreement.
(i) LMATS may at its option satisfy the indemnities in this clause (in whole or in part) by way of deduction from any payments which are payable to the Supplier.
(j) This clause shall survive termination of the agreement.
8. Intellectual Property
(a) LMATS ’s Intellectual Property Rights shall at all times remain the property of LMATS . LMATS grants the Supplier a non-exclusive, revocable, royalty-free and world-wide licence to use LMATS ’s Intellectual Property Rights solely in relation to the performance of Services under a Service Contract.
(b) The Supplier warrants that:
(c) all Services and their use and supply will not breach any patent, trademark, copyright or other Intellectual Property Right;
(d) LMATS will not have to pay any licence fee, royalty, or other amount to any person in connection with the ownership, use or operation of the Maintenance Services; and
(e) there are no terms, conditions or restrictions (such as patent conditions) which will become binding on LMATS as a result of the performance of the Services.
(f) LMATS will be entitled to all Intellectual Property Rights which are created or arise as a result of, or in the course of, the performance of any Services. Without derogating from anything else stated in this Agreement, the Supplier grants to LMATS a permanent, irrevocable, royalty-free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt and communicate all of the Supplier’s Intellectual Property Rights existing prior to this Agreement, insofar as such licence (or sub-licence) is necessary for the use, service or repair, by LMATS of the Services.
(g) The Supplier will execute and deliver to LMATS any deeds, agreements or other documents which LMATS might reasonably require to transfer or assure to LMATS any Intellectual Property Rights to which LMATS is entitled.
(h) In this Clause, "infringement" means an infringement or alleged infringement of any patent, registered design, copyright, trademark, trade name, trade secret or other Intellectual Property Right relating to the Maintenance Services; and "claim" means a claim or proceedings pursuing a claim alleging an infringement.
(i) In the event of a claim and notwithstanding the above, the Supplier shall always, as part of its cure of the default, be entitled to substitute the infringing items with non-infringing items as a cure for any claims of infringement.
(j) This clause shall survive termination of the agreement.
9. Insurances
(a) The Supplier shall maintain and provide a copy of currency of insurance for professional Indemnity, Public Liability and Workcover to the agreed limits specified by LMATS . As a minimum the insurance limits shall be a minimum of $5,000,000 for Professional Indemnity (if applicable) and $20,000,000 for Public Liability insurance.
(b) The supplier shall insure their own assets.
(c) This clause shall survive termination of the agreement.
10. Non-solicitation and Non-compete
(a) The parties agree that they shall not solicit any employee or independent Supplier of either party, nor shall they induce any employee or independent Supplier associated with either party to terminate or breach an employment, contractual or other relationship with either party.
(b) The Supplier agrees not to compete with LMATS by directly approaching LMATS ’s existing clients or supplying services directly to LMATS ’s clients. The Supplier shall not work concurrently with LMATS ’s competitors while working on LMATS ’s projects.
(c) This clause shall survive termination of the agreement.
11. Termination
(a) LMATS has the right to postpone or terminate the Contract for any reason. Notice of termination by LMATS shall be minimum 1 week prior to work commencement. Notice of postponing shall be minimum 24 hours prior to work commencement.
(b) The parties may terminate this Agreement with immediate effect if the other party becomes bankrupt, or insolvent, goes into liquidation, has a receiving or administrating order made against them, is in material breach of this Agreement, or fails to make good an obligation after provision of notice to correct.
(c) Upon termination of this contract, the Supplier shall return all LMATS ’s equipment, property, records, documents etc in whatever form, within 24 hours to LMATS . The Supplier must not keep any copies, in any form whatsoever information without the written permission of LMATS .
(d) Notice of termination by the Supplier shall be a minimum 3 months when actively engaged on LMATS ’s projects. If a Supplier fails to give notice, then the Supplier shall be liable to pay the additional cost of working to LMATS to complete ongoing projects wherever the Supplier was engaged.
12. Governing law and jurisdiction
(e) This agreement is governed by the laws of Victoria.
(f) The parties irrevocably submit to the non exclusive jurisdiction of the courts of Victoria.
13. General
(a) Each party must take all actions necessary to ensure full effect to this agreement.
(b) Any variation to this agreement must be in writing and signed by both parties.
(c) Any notice required or permitted to be given hereunder shall be in writing.
(d) A person who is not a party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act (Cap. 53B) to enforce any of its terms.
(e) The heading of titles used throughout this agreement are interested for reference purposes only and are not to be considered or taken into account in considering this agreement or any terms and conditions thereof, nor shall they be deemed to qualify, modify or explain any of such terms and conditions or the effect thereof.
(f) The supplier shall pay his Superannuation and other statutory entitlements such as public holidays, annual & personnel leaves, GST, income tax and the payroll tax (if applicable).
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