Australian/New Zealand Standard

Transcription

1 Water Corporation July 2012 Version AS/NZS 4911:2003 (Incorporating Amendment No. 1) AS/NZS 4911:2003 Australian/New Zealand Standard Water Corporation General conditions of contract amended from Australian Standard General conditions of contract for the supply of equipment without installation (Version July 2012) This document is based on Standards Australia Ltd copyrighted material that is distributed by SAI Global Ltd on Standards Australia Ltd s behalf. It may be reproduced and modified in accordance with the terms of SAI Global Ltd s licence 1206-c180 to Water Corporation ( the Licensee ). All amended, marked up and licensed copies of this document must be obtained from the Licensee. Standards Australia Ltd s copyright material is not for resale, reproduction or distribution in whole or in part without written permission from SAI Global Ltd: tel copyright@saiglobal.com

2 This Joint Australian/New Zealand Standard was prepared by Joint Technical Committee OB-003, General Conditions of Contract. It was approved on behalf of the Council of Standards Australia on 18 June 2003 and on behalf of the Council of Standards New Zealand on 24 July This Standard was published on 22 August The following are represented on Committee OB-003: Association of Consulting Engineers Australia Australian Chamber of Commerce and Industry Australian Procurement and Construction Council AUSTROADS Construction Industry Engineering Services Group Construction Policy Steering Committee Electricity Supply Association of Australia Institution of Engineers, Australia Institution of Professional Engineers, New Zealand Law Council of Australia Master Builders Australia National Construction Council of the Australian Industry Group Process Engineers and Constructors Association Royal Australian Institute of Architects Keeping Standards up-to-date Standards are living documents which reflect progress in science, technology and systems. To maintain their currency, all Standards are periodically reviewed, and new editions are published. Between editions, amendments may be issued. Standards may also be withdrawn. It is important that readers assure themselves they are using a current Standard, which should include any amendments which may have been published since the Standard was purchased. Detailed information about joint Australian/New Zealand Standards can be found by visiting the Standards Web Shop at or Standards New Zealand web site at and looking up the relevant Standard in the on-line catalogue. Alternatively, both organizations publish an annual printed Catalogue with full details of all current Standards. For more frequent listings or notification of revisions, amendments and withdrawals, Standards Australia and Standards New Zealand offer a number of update options. For information about these services, users should contact their respective national Standards organization. We also welcome suggestions for improvement in our Standards, and especially encourage readers to notify us immediately of any apparent inaccuracies or ambiguities. Please address your comments to the Chief Executive of either Standards Australia or Standards New Zealand at the address shown on the back cover. This Standard was issued in draft form for comment as DR

3 Water Corporation July 2012 Version AS/NZS 4911:2003 (Incorporating Amendment No. 1) Australian/New Zealand Standard General conditions of contract for the supply of equipment without installation COPYRIGHT Standards Australia/Standards New Zealand All rights are reserved. No part of this work may be reproduced or copied in any form or by any means, electronic or mechanical, including photocopying, without the written permission of the publisher. Jointly published by Standards Australia, GPO Box 5420, Sydney, NSW 2001 and Standards New Zealand, Private Bag 2439, Wellington 6020 ISBN

4 Preface This Standard was prepared by the Joint Standards Australia/Standards New Zealand Committee OB-003, General Conditions of Contract to supersede AS/NZS 4911:1998. This Standard incorporates Amendment No. 1 (March 2005). The changes required by the Amendment are indicated in the text by a marginal bar and amendment number against the clause, note, table, figure or part thereof affected. This Standard is the result of a consensus among Australian and New Zealand representatives on the Joint Committee to produce it as a Joint Australian/New Zealand Standard. AS/NZS 4911:2003, General conditions of contract for the supply of equipment without installation is part of the suite of conditions of contract based on AS , General conditions of contract. This Standard is for the supply of equipment, including building elements, which is purposebuilt or manufactured. If installation is required, AS , General conditions of contract for supply of equipment with installation should be used. Separable portions may be appropriate in contracts where equipment is being supplied for use at different times or stages. If so, the Items prefixed by are to be deleted in Annexure Part A and that part of Annexure Part A entitled Separable Portions is to be completed for each separable portion. Clause 29 and subclause 6.6 prefixed by * are optional, and may be omitted in the Contract, where necessary, without making consequential amendments but such omission should be clearly shown on the face of the document by striking out these clauses or indicating clearly in Annexure Part C or elsewhere that they are not to apply. See paragraph i) of clause 1 on page 4 for the effect of stating changes in Annexure Part C. Warnings 1) Users of this Standard are warned that clause 12 (Supplier s indemnity) does not limit the liability of parties for special, indirect or consequential losses. This unlimited liability applies notwithstanding any limitations or exclusions permitted under insurance clause 13 (Insurance). However, optional clause 29 (General limitation of liability) allows the parties to agree to limit their liability in certain respects. Parties wishing to limit their liability should seek insurance and legal advice before entering a contract under this Standard. 2) For the purposes of clause 11, the inclusion of Quality Assurance requirements in the Contract will require detailed clauses which have regard to the quality standard selected. 3) Users of this Standard should ensure the availability of appropriate insurances if risk in the equipment is not to pass to the Purchaser upon delivery. 4) Users of this Standard should be aware of relevant legislation relating to the sale and supply of goods in the Commonwealth of Australia, each State or Territory of Australia and New Zealand. 5) Legislation has come into force in some jurisdictions dealing with security of payments. Parties intending to use this Standard should seek expert advice as to their rights and obligations under such legislation. iv

5 Content Clause Title Page 1 Interpretation and construction of Contract 1 2 Nature of Contract 4 3 Security 4 4 Evidence of Contract 5 5 Service of notices 6 6 Contract documents 6 7 Assignment and subcontracting 7 8 Intellectual property rights 8 9 Warranties 9 10 Legislative Requirements Quality assurance Supplier's indemnity Insurance Directions Programming Suspension Time Testing Delivery Risk in and ownership of the Equipment Acceptance or rejection of Equipment Defects liability Variations Payment Default or insolvency Termination by frustration Notification of claims Dispute resolution 29 *29 General limitation of liability Waiver of conditions 31 v

6 31 Civil Liability Act Annexure Part A 33 Annexure Part B 43 Annexure Part C 45 Annexure Part D 46 Index 48 vi

7 1 Interpretation and construction of Contract Item Aboriginal bid acceptable acceptance acceptance testing compensable cause Contract contract sum date for delivery In the Contract, except where the context otherwise requires: means an Item in Annexure Part A; means a person of Aboriginal or Torres Strait Islander descent who identifies as such and is accepted as such by the community in which he or she lives or has lived; has the same meaning as tender; means: a) the Equipment is substantially in accordance with the requirements of the Contract except for minor defects which do not: i) prevent the Equipment from being reasonably capable of being used for the stated purpose in Item 5 or elsewhere stated in the Contract; or ii) if no such purpose is stated, adversely affect the normal use of the Equipment; b) where the Contract so requires, the Equipment satisfies acceptance testing; and c) manuals, documents and other information required under the Contract have been supplied; means notification under subclause 21.1 or 21.8 by the Purchaser that the Equipment is acceptable; means testing referred to in subclause 18.1; means: a) any act, default or omission of the Purchaser or its consultants, agents or other contractors (not being employed by the Supplier); or b) those listed in Item 24(a); has the meaning in clause 4; means: a) where the Purchaser accepted a lump sum, the lump sum; b) where the Purchaser accepted unit prices, the sum of the products ascertained by multiplying the quantity of Equipment and the corresponding unit prices in the schedule of unit prices; or c) where the Purchaser accepted a lump sum and unit prices, the aggregate of the sums referred to in paragraphs (a) and (b), excluding any additions or deductions which may be required to be made under the Contract; means: a) the date; or b) the last day of the period, Copyright Clause 1:Interpretation and construction of Contract 1

8 date of acceptance of tender date of delivery deed of guarantee, undertaking and substitution defects defects liability period deliver (and delivered) delivery delivery place delivery program designated item direction dispute EOT (from extension of time ) Equipment final certificate final payment claim intellectual property right legislative requirements Operating Licence if any, stated in Item 6, but if any EOT for delivery is directed by the Purchaser or allowed in any arbitration or litigation, it means the date resulting therefrom; means the date which appears on the written notice of acceptance of the tender; means: a) the date upon which the Equipment was delivered; or b) where another date is determined in any arbitration or litigation as the date upon which the Equipment was delivered, that other date; has the meaning in subclause 3.6; has the meaning in clause 22 and includes omissions; has the meaning in clause 22; have the meaning in clause 19; has the meaning in clause 19; is stated in Item 7; has the meaning in clause 15; has the meaning in clause 9; includes agreement, approval, assessment, authorisation, certificate, decision, demand, determination, explanation, instruction, notice, order, permission, rejection, request or requirement; has the meaning in clause 28; has the meaning in subclause 17.2; means the goods to be supplied or supplied by the Supplier pursuant to the Contract; has the meaning in subclause 24.4; means the final payment claim referred to in subclause 24.4; means any patent, registered design, trademark or name, copyright or other protected right; includes: a) Acts, Ordinances, regulations, by-laws, orders, awards and proclamations of the jurisdiction where the supply or delivery of the Equipment or the particular part thereof is being carried out; b) certificates, licences, consents, permits, approvals and requirements of organisations having jurisdiction where the supply or delivery of the Equipment or the particular part thereof is being carried out; and c) fees and charges payable in connection with the foregoing; means the licence issued, from time to time, to the Purchaser under the Water Services Licensing Act 1995 (WA); 2 Clause 1: Interpretation and construction of Contract Copyright

9 policy requirements prescribed notice Purchaser qualifying cause of delay reference date schedule of unit prices security separable portion Supplier test variation means the Purchaser s policy requirements described in the Contract; has the meaning in subclause 27.1; means the person stated in Item 1; means a cause of delay other than that caused by: a) any act, default or omission of the Purchaser, its consultants, agents or other contractors (not being employed by the Supplier); or b) other than a i) a breach or omission by the Supplier; b ii) industrial conditions or inclement weather occurring after the date for delivery; and c iii) a cause stated in Item 22; means the date in Item 19; means any schedule included in the Contract which, in respect of the Equipment, shows the unit prices for any part or item of the Equipment within the limits of supply stated in Item 11 and which may also include lump sums, other sums, quantities and prices; means: a) cash; b) retention moneys; c) bonds or inscribed stock or their equivalent issued by a national, state or territory government; d) interest bearing deposit in a bank carrying on business at the place stated in Item 9(c); e) an approved unconditional undertaking (the form in Annexure Part C is approved) or an approved performance undertaking given by an approved financial institution or insurance company; or c e) an unconditional undertaking in the form of Annexure Part B given by an approved financial institution having an office in Perth, Western Australia; or d f) other form approved by the party having the benefit of the security; means an item or part of the Equipment identified as such in the Contract or by the Purchaser pursuant to subclause 19.2; means the person bound to supply and deliver the Equipment; has the meaning in clause 18 and includes examine and measure; has the meaning in clause 23, and like words have a corresponding meaning. In the Contract: a) references to days mean calendar days and references to a person include an individual, firm or a body, corporate or unincorporate; Copyright Clause 1:Interpretation and construction of Contract 3

10 b) time for doing any act or thing under this Contract shall, if it ends on a Saturday, Sunday or Statutory or Public Holiday, be deemed to end on the day next following which is not a Saturday, Sunday or Statutory or Public Holiday; c) clause headings and subclause headings shall not form part of, nor be used in the interpretation of, the Contract; d) words in the singular include the plural and words in the plural include the singular, according to the requirements of the context. Words importing a gender include every gender; e) communications between the Purchaser and the Supplier shall be in the English language; f) measurements of physical quantities shall be in legal units of measurements of the jurisdiction in Item 9; g) unless otherwise provided, prices are in the currency in Item 10(a) and payments shall be made in that currency at the place in Item 10(b); h) the law governing the Contract, its interpretation and construction, and any agreement to arbitrate, is the law of the jurisdiction stated in Item 9; and i) the changes in Annexure Part C shall be deemed to be part of these General Conditions. 2 Nature of Contract 2.1 Performance and payment In accordance with the requirements of the Contract: a) the Supplier shall supply and deliver the Equipment; and b) the Purchaser shall accept the Equipment and pay the Supplier the contract sum adjusted by any additions or deductions made pursuant to the Contract. 2.2 Adjustment for actual quantities Equipment delivered in accordance with the Contract in quantities outside the limits of supply stated in Item 11 shall be a deemed variation. 3 Security 3.1 Provision Security shall be provided in accordance with Item 12 or Recourse The party having the benefit of security who remains unpaid after the time for payment may have recourse to that security. Security shall be subject to recourse by a party who remains unpaid after the time for payment where at least 5 days have elapsed since that party notified the other party of intention to have recourse. 4 Clause 2: Nature of Contract Copyright

11 If security is provided to secure performance of the Equipment, recourse may be had to that security if the Equipment fails to meet those performance requirements. 3.3 Change of security At any time a party providing retention moneys or cash security may substitute another form of security. To the extent that another form of security is provided, the other party shall not deduct, and shall promptly release and return, retention moneys and cash security. 3.4 Reduction and release Upon acceptance, a party s entitlement to security (other than in Item 12(e) or Item 12 (g)) shall be reduced by the percentage or amount in Item 12(f) or 13(d) as applicable, and the reduction shall be released and returned within 14 days to the other party. The Purchaser s entitlement to security in Item 12(e) shall cease 14 days after the later of delivery or acceptance of the Equipment for which that security was provided. The Purchaser s entitlement to security in Item 12(g) shall cease after the date or event stated in Item 12(h). A party s entitlement otherwise to security shall cease 14 days after final certificate. Upon a party s entitlement to security ceasing, that party shall release and return forthwith the security to the other party. 3.5 Trusts and interest Except where held by a government department or agency or a municipal, public or statutory authority, any portion of security (and interest earned thereon) which is cash or retention moneys, shall be held in trust for the party providing them until the Purchaser or the Supplier is entitled to receive them. Interest earned on security not required to be held in trust shall belong to the party holding that security. 3.6 Deed of guarantee, undertaking and substitution Where: a) a party is a related or subsidiary corporation (as defined in the applicable corporations law of the jurisdiction); and b) a form of deed of guarantee, undertaking and substitution was included in the tender documents, that party shall, within 14 days after receiving a written request from the other party, provide such deed of guarantee, undertaking and substitution in the form included in Annexure Part D duly executed and enforceable. 4 Evidence of Contract Until a formal instrument of agreement is executed by the parties, documents evidencing the parties consensus shall constitute the Contract. If such Contract requires a formal instrument of agreement, the Purchaser shall, within 28 days of the date of acceptance of tender, send it in duplicate for execution by the Supplier. Within 14 days after receiving Copyright Clause 4:Evidence of Contract 5

12 them, the Supplier shall (if they are correct) properly execute both copies and return them. Notwithstanding any other provision of the Contract, the Supplier shall not be entitled to payment until such copies are properly executed and returned by the Supplier. Within 14 days after receiving them, the Purchaser shall execute both copies, have them stamped as necessary and send one copy to the Supplier. The Purchaser may extend the time under this clause by written notice to the Supplier. 5 Service of notices A notice (and other documents) shall be deemed to have been given and received: a) if addressed or delivered to the relevant address in the Contract or last communicated in writing to the person giving the notice; and b) on the earliest date of: i) actual receipt; ii) confirmation of correct electronic transmission of fax; or iii) 3 days after posting. 6 Contract documents 6.1 Discrepancies If either party discovers any inconsistency, ambiguity or discrepancy in any document prepared for the purpose of performing the Contract, that party shall give the other party written notice of it. The Purchaser, thereupon, and upon otherwise becoming aware, shall direct the Supplier as to the interpretation and construction to be followed. If compliance with any such direction under this subclause causes the Supplier to incur more or less cost than otherwise would have been incurred had the direction not been given, the difference shall be assessed by the Purchaser and added to or deducted from the contract sum. 6.2 Purchaser-supplied documents The Purchaser shall supply to the Supplier the documents and number of copies thereof, both stated in Item 14. They shall: a) remain the Purchaser s property and be returned to the Purchaser on written demand; and b) not be used, copied nor reproduced for any purpose other than the performance of the Contract. 6.3 Supplier-supplied documents The Supplier shall supply to the Purchaser the documents and the number of copies thereof, both stated in Item 15. If the Supplier submits documents to the Purchaser, then except where the Contract otherwise provides: 6 Clause 5: Service of notices Copyright

13 a) the Purchaser shall not be required to check such documents for errors, omissions, inconsistencies, ambiguities, discrepancies or compliance with the Contract; b) any Purchaser s acknowledgment or approval shall not prejudice the Supplier s obligations; and c) if the Contract requires the Supplier to obtain the Purchaser s direction about such documents, the Purchaser shall give, within the time stated in Item 16, the appropriate direction, including reasons if the documents are not suitable. Copies of documents supplied by the Supplier shall be the Purchaser s property but shall not be used or copied otherwise than for the installation, use, support, repair, maintenance or alteration of the Equipment. 6.4 Availability The Supplier shall keep available to the Purchaser at the place of manufacture or assembly of any significant part of the Equipment, a set of the documents affecting that part. 6.5 Confidential information The parties shall ensure that there are kept confidential such documents, samples, models, patterns and other information as are supplied and clearly identified as confidential. If required in writing by a party, the other party shall enter into a separate agreement not to disclose to anyone else any such confidential matter even after final certificate or earlier termination of the Contract. *6.6 Media The Supplier shall not disclose any information concerning the Contract for distribution through any communications media without the Purchaser s prior written approval (which shall not be unreasonably withheld). The Supplier shall refer to the Purchaser any enquiries from any media concerning the Contract. 7 Assignment and subcontracting 7.1 Assignment Neither party shall, without the other s prior written approval (including terms) assign the Contract or any payment or any other right, benefit or interest thereunder. 7.2 Subcontracting The Supplier shall not without the Purchaser s prior written approval (which shall not be unreasonably withheld): a) subcontract or allow a subcontractor to subcontract any work described in Item 17; or b) allow a subcontractor to assign a subcontract or any payment or any other right, benefit or interest thereunder. * See Preface on page (iii) Copyright Clause 7:Assignment and subcontracting 7

14 Approval may be conditional upon any subcontract including a provision that the subcontract shall exclude part 1F of the Civil Liability Act (WA). The Supplier shall if requested by the Purchaser provide copies of the proposed subcontract documents without prices. The Supplier shall be liable to the Purchaser for the acts, defaults or omissions of subcontractors and employees and agents of subcontractors as if they were those of the Supplier. Approval to subcontract shall not relieve the Supplier from any liability or obligation under the Contract. 8 Intellectual property rights 8.1 Warranties The Purchaser warrants that, unless otherwise provided in the Contract, design, materials, documents and methods of working, each specified in the Contract or provided or directed by the Purchaser, shall not infringe any intellectual property right. The Supplier warrants that, unless otherwise provided in the Contract, any other design, materials, documents and methods of working, each provided by the Supplier, shall not infringe any intellectual property right. Each party shall indemnify the other against such respective infringements. 8.2 Ownership and licence Except as otherwise provided in the Contract, ownership of intellectual property rights (other than third party intellectual property rights) associated with the Equipment and any documentation provided by the Supplier pursuant to the Contract is vested and shall vest in the Supplier. The Supplier grants the Purchaser a royalty-free, non-exclusive, transferable, perpetual licence to use the intellectual property rights associated with the Equipment and any documentation provided pursuant to the Contract for the installation, use, support, repair, maintenance or alteration of the Equipment by or on behalf of the Purchaser. 9 Designated items 9.1 Warranties The Supplier: a) does not warrant that any designated item identified in writing by the Purchaser: i) is of merchantable quality or fit for the stated purpose; or ii) does not infringe any intellectual property right. b) shall, from the manufacturer of each such designated item, obtain for the benefit of the Purchaser: i) such warranties as are given by the manufacturer in the ordinary course of its business for each such item; and 8 Clause 8: Intellectual property rights Copyright

15 ii) appropriate licences or permits for use. 9.2 Supplier s obligations The Purchaser may, at its expense, require the Supplier to either: a) assign to the Purchaser such rights, if any, as the Supplier has against the manufacturer; or b) pursue any reasonable claim against the manufacturer. Except to the extent that the Supplier recovers damages from the manufacturer, the Supplier has no liability to the Purchaser in respect of any such designated item. Upon receipt of a written request from the Purchaser in respect of any such designated item, the Supplier shall notify the Purchaser of the name of the manufacturer, any terms of contract with the manufacturer which purport to limit the manufacturer s liability to the Supplier in respect of the designated item and such other information as the Purchaser reasonably requests. 9 Warranties 9.1 Ownership The Supplier represents and warrants that: a) it is the legal and beneficial owner of the Equipment and the components comprising the Equipment; and b) that upon payment of the contract sum no person other than the Purchaser will be entitled to hold any interest in, or encumbrance over, the Equipment or any part thereof. 9.2 Supplier s warranty The Supplier represents and warrants that the Equipment shall upon delivery: a) comply in all respects with the Contract; b) be suitable for the purpose stated in Item 5; c) be of merchantable quality; d) conform to any sample provided by the Supplier and approved in writing by the Purchaser; e) in the absence of any specific provision of the Contract, meet any relevant Australian Standard and industry best practice; f) be free of design defects; g) be, unless otherwise specified, new. If the Supplier is in breach of any of the warranties in this clause 9, the Purchaser may, in addition to the Purchaser s other rights and remedies, at any time give 7 days written notice to the Supplier to rectify such breach, and if the Supplier fails to comply with such notice, the Purchaser may employ others to carry out the work required to satisfy the warranty. The cost thereby incurred shall be moneys due and payable by the Supplier. Copyright Clause 9:Warranties 9

16 The representations and warranties in this clause survive the completion or earlier termination of the Contract and each warranty in this clause is independent of, and is not limited by, reference to any other warranty. The Supplier shall obtain all warranties relevant to the Equipment from manufacturers or suppliers or as otherwise specified in the Contract, including any warranties that are provided by any subcontractor and ensure that the Purchaser has the benefit of those warranties. 10 Legislative Requirements 10.1 Compliance The Supplier shall satisfy all legislative requirements except those in Item 18 or directed by the Purchaser to be satisfied by or on behalf of the Purchaser. The Supplier, upon finding that a legislative requirement is at variance with the Contract, shall promptly give the Purchaser written notice thereof Changes If a legislative requirement: a) necessitates a change: i) to the Equipment; ii) in a fee or charge or payment of a new fee or charge; or iii) in the method of working as may be stated in the Contract; b) comes into effect after the reference date stated in Item 19 but could not reasonably then have been anticipated by a competent supplier; and c) causes the Supplier to incur more or less cost than otherwise would have been incurred, the difference shall be assessed by the Purchaser and added to or deducted from the contract sum Other requirements The Supplier shall supply and deliver the Equipment in a manner that shall not contravene: a) the Operating Licence nor cause the Purchaser to contravene the Operating Licence; or b) the Purchaser s Occupational Safety and Health procedures. If the Purchaser is of the opinion any person supplying or delivering the Equipment is not complying with the requirements of subparagraphs (a) or (b of this subclause, the Purchaser may direct the Supplier to remove that person from the Purchaser s premises and the Supplier shall comply at the Supplier s own cost. 10 Clause 10: Legislative Requirements Copyright

17 10.4 Policy requirements The Supplier shall comply with the policy requirements. The Supplier shall cooperate with any compliance audits undertaken by the Purchaser to ensure the Supplier s compliance with the policy requirements and shall provide such information and certification as the Purchaser reasonably requires Supplier indemnity The Supplier shall indemnify the Purchaser against any loss or damage suffered by the Purchaser, arising out of or in connection with, the Supplier s failure to comply with subclause 10.1, 10.3 or Quality assurance In respect of the Equipment, the Purchaser may direct the Supplier to: a) supply particulars of the mode and place of manufacture, the source of supply of materials and other components, the performance capacities and other related information; and b) arrange reasonable inspection at such place or sources by the Purchaser or persons authorised by the Purchaser. If the Contract elsewhere requires further quality assurance, the Supplier shall: a) plan, establish and maintain a conforming quality system; and b) ensure that the Purchaser has reasonable access to the quality system of the Supplier and subcontractors so as to enable monitoring and quality auditing. Any such quality system shall be used only as an aid to achieving compliance with the Contract and to document such compliance. Such system shall not discharge the Supplier s other obligations under the Contract. 12 Supplier's indemnity Insofar as this clause applies to property, it applies to property other than the Equipment. The Supplier shall indemnify the Purchaser against: a) loss of or damage to the Purchaser s property; and b) claims in respect of personal injury or death or loss of, or damage to, any other property, arising out of or as a consequence of the Supplier s performance of the Contract, but the indemnity shall be reduced proportionally to the extent that the act or omission of the Purchaser or its consultants, agents or other contractors (not being employed by the Supplier) may have contributed to the injury, death, loss or damage. Copyright Clause 11:Quality assurance 11

18 This clause shall not apply to: a) the extent that the Supplier s liability is limited by another provision of the Contract; and b) exclude any other right of the Purchaser to be indemnified by the Supplier. 13 Insurance 13.1 Insurance of Equipment The Supplier shall insure the Equipment for its replacement value against loss or damage, including loss or damage in transit to the delivery place, and if the Contract requires the Supplier to unload the Equipment, also such unloading. Insurance cover shall be effected by the time stated in Item 20. The policy or policies under this subclause shall: a) be maintained until risk in the Equipment passes to the Purchaser; b) cover the parties respective rights, interests and liabilities; and c) if required by the Purchaser, be in the joint names of the parties Public and product liability insurance If required in Item 21(a), before commencing the performance of the Contract, the Supplier shall effect and maintain public liability insurance for the period stated in Item 21(c). If required in Item 21(d), before commencing the performance of the Contract, the Supplier shall effect and maintain product liability insurance for the period stated in Item 21(f). Policies if required, shall: a) cover the: i) respective rights and interests; and ii) liabilities to third parties, of the parties and subcontractors from time to time, whenever performing obligations under the Contract; b) cover the parties respective liability to each other for loss or damage to property (other than property required to be insured by subclause 13.1) and the death of or injury to any person (other than liability which the law requires to be covered under a workers compensation insurance policy); c) provide insurance cover for an amount in respect of any one occurrence of not less than the sum in Item 21(b) or (e) as applicable; and d) be with an insurer and otherwise in terms both approved in writing by the Purchaser (which approvals shall not be unreasonably withheld). 12 Clause 13: Insurance Copyright

19 13.3 Insurance of employees Before commencing performance of the Contract, the Supplier shall insure against statutory and common law liability for death of or injury to persons employed by the Supplier. The insurance cover shall be maintained for the duration of the Contract. Where permitted by law, the insurance policy or policies shall be extended to provide indemnity for the Purchaser s statutory liability to the Supplier s employees. The Supplier shall ensure that all subcontractors have similarly insured their employees Proof of Insurance Whenever requested in writing by the Purchaser, the Supplier shall provide satisfactory evidence of such insurance effected and maintained. Insurance shall not limit liabilities or obligations under other provisions of the Contract. If after being so requested, the Supplier fails promptly to provide satisfactory evidence of compliance with subclause 13.1, 13.2 or 13.3, then without prejudice to other rights or remedies, the Purchaser may insure and the cost thereof shall become moneys due and payable from the Supplier to the Purchaser. The Purchaser may refuse payment until such evidence is produced by the Supplier Notices from or to insurer The Supplier shall ensure that each insurance policy under subclause 13.1 or 13.2 contains provisions acceptable to the Purchaser which: a) requires the insurer to inform both parties, whenever the insurer gives a party or a subcontractor a notice in connection with the policy; b) provides that a notice of claim given to the insurer by either party or a subcontractor shall be accepted by the insurer as a notice of claim given by both parties and the subcontractor; and c) requires the insurer, whenever the Supplier fails to maintain the policy, promptly to give written notice thereof to both parties and prior to cancellation of the policy Notices of potential claims A party shall, as soon as practicable, inform the other party in writing of any occurrence that may give rise to a claim under an insurance policy required by subclause 13.1 or 13.2 and shall keep the other party informed of subsequent developments concerning the claim. The Supplier shall ensure that its subcontractors in respect of their operations similarly inform the parties Cross liability Any insurance required to be effected in joint names in accordance with the Contract shall include a cross liability clause in which the insurer agrees to waive all rights of subrogation or action against any of the persons constituting the insured and for the purpose of which the insurer accepts the term insured as applying to each of the persons constituting the insured as if a separate policy of insurance had been issued to each of Copyright Clause 13:Insurance 13

20 them (subject always to the overall sum insured not being increased thereby). 14 Directions Except where the Contract otherwise provides, the Purchaser may give a direction orally but shall as soon as practicable confirm it in writing. If the Supplier in writing requests the Purchaser to confirm an oral direction, the Supplier shall not be bound to comply with the direction until the Purchaser does so. The Purchaser may appoint the individual stated in Item 1A, to exercise delegated Purchaser s functions. The Purchaser may from time to time, by notice in writing to the Supplier, substitute or appoint more than one such Purchaser s representative, provided that no aspect of any function shall at any time be the subject of delegation to more than one Purchaser s representative. Every reference in the Contract to the Purchaser s representative shall include the Purchaser and vice versa. 15 Programming The Supplier shall give the Purchaser reasonable advance notice of when the Supplier needs information, materials, documents or instructions from the Purchaser. The Purchaser shall not be obliged to give any information, materials, documents or instructions earlier than the Purchaser should reasonably have anticipated at the date of acceptance of tender. The Purchaser may direct in what order and at what time the various items or parts of the Equipment shall be delivered. If the Supplier can reasonably comply with the direction, the Supplier shall do so. If the Supplier cannot reasonably comply, the Supplier shall give the Purchaser written notice of the reasons. A delivery program is a written statement showing the dates by which, or the times within which, the various items or parts of the Equipment are to be delivered and shall include critical path manufacturing dates. The Purchaser may direct the Supplier to give the Purchaser a delivery program within the time and in the form directed. The Supplier shall not, without reasonable cause, depart from a delivery program. If compliance with any such directions under this clause, except those pursuant to the Supplier s default, causes the Supplier to incur more or less cost than otherwise would have been incurred had the Supplier not been given the direction, the difference shall be assessed by the Purchaser and added to or deducted from the contract sum. 14 Clause 14: Directions Copyright

21 16 Suspension 16.1 Purchaser s suspension The Purchaser may direct the Supplier to suspend supply or delivery of the whole or part of the Equipment for such time as the Purchaser thinks fit, if the Purchaser, acting reasonably, is of the opinion that it is necessary: a) because of an act, default or omission of: i) the Purchaser or its employees, consultants, agents or other contractors (not being employed by the Supplier); or ii) the Supplier, a subcontractor or either s employees or agents; b) for the protection or safety of any person or property; or c) to comply with a court order Supplier s suspension If the Supplier wishes to suspend supply or delivery of the whole or part of the Equipment, otherwise than pursuant to subclause 25.7, the Supplier shall obtain the Purchaser s prior written approval. The Purchaser may approve the suspension and may impose conditions of approval Recommencement As soon as the Purchaser becomes aware that the reason for any suspension no longer exists, the Purchaser shall direct the Supplier to recommence the suspended supply or delivery as soon as reasonably practicable. The Supplier may recommence the supply or delivery suspended pursuant to subclause 16.2 or 25.7 at any time after reasonable notice to the Purchaser Cost The Supplier shall bear the cost of suspension pursuant to paragraph (a)(ii) of subclause 16.1 and subclause If the Supplier made the protection, safety or court order necessary, the Supplier shall bear the cost of suspension pursuant to paragraph (b) or (c) of subclause If the Supplier otherwise incurs more or less cost than otherwise would have been incurred, the difference shall be assessed by the Purchaser and added to or deducted from the contract sum. 17 Time 17.1 Notice of delay A party becoming aware of anything which will probably cause delay to supply or delivery shall promptly give the other party written notice of that cause and the estimated delay Claim The Supplier shall be entitled to such extension of time for delivery as the Purchaser, acting reasonably, assesses ( EOT ), if: Copyright Clause 16:Suspension 15

22 a) delivery is or will be delayed by a qualifying cause of delay that includes but is not limited to any act, default or omission of the Purchaser or its consultants, agents or other contractors (not being employed by the Supplier); and b) the Supplier gives the Purchaser, within 14 days of when the Supplier should reasonably have become aware of that causation occurring, a written claim for an EOT evidencing the facts of causation and of the delay to delivery (including extent). If further delay results from a qualifying cause of delay evidenced in a claim under paragraph (b) of this subclause, the Supplier shall claim an EOT for such delay by promptly giving the Purchaser a written claim evidencing the facts of that delay Assessment When both non-qualifying and qualifying causes of delay overlap, the Purchaser shall apportion the resulting delay to supply and delivery according to the respective causes contribution. In assessing each EOT the Purchaser shall disregard questions of whether: a) the Equipment can nevertheless be delivered without an EOT; or b) the Supplier can accelerate, but shall have regard to what prevention and mitigation of the delay has not been effected by the Supplier Extension of time Within 14 days after receiving the Supplier s claim for an EOT, the Purchaser shall give to the Supplier a written direction evidencing the EOT so assessed. If the Purchaser does not do so, there shall be a deemed assessment and direction for an EOT as claimed. Notwithstanding that the Supplier is not entitled to or has not claimed an EOT, the Purchaser may at any time and from time to time before issuing the final certificate direct an EOT Liquidated damages If the Equipment is not delivered by the date for delivery or is rejected pursuant to subclause 21.1, liquidated damages in Item 23 shall be due and payable to the Purchaser for every day after the date for delivery to and including the earliest of the date of delivery or termination of the Contract or, where the Equipment has been rejected, upon acceptance. If an EOT is directed after the Supplier has paid or the Purchaser has set off liquidated damages, the Purchaser shall forthwith repay to the Supplier such of those liquidated damages as represent the days the subject of the EOT Delay damages For every day the subject of an EOT for a compensable cause and for which the Supplier gives the Purchaser a claim for delay damages pursuant to subclause 27.1, damages in accordance with Item 24(b) shall be due and payable to the Supplier. 16 Clause 17: Time Copyright

23 18 Testing 18.1 Acceptance testing The Purchaser may direct that the whole or any part of the Equipment be tested before acceptance. Such acceptance testing shall be completed by the date stated in Item 25. The Supplier shall give such assistance and samples and make accessible such parts of the Equipment as may be directed by the Purchaser Who conducts Tests shall be conducted as provided elsewhere in the Contract or by the Purchaser or a person (which may include the Supplier) nominated by the Purchaser Notice The Purchaser or the Supplier (whichever is to conduct the test) shall give reasonable written notice to the other of the date, time and place of the test. If the other does not attend, the test may nevertheless proceed Delay Without prejudice to any other right, if the Supplier or the Purchaser delays in conducting a test, the other, after giving reasonable written notice of intention to do so, may conduct the test Completion and results On completion of the tests, the Supplier shall make good the Equipment so that it fully complies with the Contract. Results of tests shall be promptly made available by each party to the other Costs Costs in connection with testing pursuant to this clause shall be borne by the Purchaser except where the Contract otherwise provides or the test is consequent upon, or reveals a failure of the Supplier to comply with the Contract (including this clause) Further testing If at any time before the expiry of the defects liability period: a) the Purchaser asserts that any part of the Equipment is not in accordance with the Contract; and b) the Supplier requests permission to test the Equipment, the Purchaser shall not refuse the Supplier reasonable access to test the Equipment. 19 Delivery 19.1 Mode of and date and place for delivery The Supplier, at its expense, shall deliver the Equipment on the date for delivery to the delivery place using the mode of delivery stated in Item 8. If so requested, the Supplier shall give the Purchaser reasonable advance notice of each delivery. Copyright Clause 18:Testing 17

24 The party named in Item 26 shall promptly unload the Equipment at the delivery place. When so unloaded the Purchaser shall take delivery of the Equipment. The Purchaser may direct the Supplier to change the date for delivery, delivery place or the mode of delivery. If the Supplier can reasonably comply with the direction, the Supplier shall do so. If the Supplier cannot reasonably comply, the Supplier shall give the Purchaser written notice of the reasons. If compliance with any such directions under this subclause, except those pursuant to the Supplier s default, causes the Supplier to incur more or less cost than otherwise would have been incurred had the Supplier not been given the direction, the difference shall be assessed by the Purchaser and added to or deducted from the contract sum. The Supplier shall ensure that all Equipment is properly, safely and securely packaged and labelled for identification and safety as follows: a) the Equipment and the items comprising the Equipment must be individually packaged for transport so that they are protected from all reasonably foreseeable conditions which might cause corrosion, deterioration or physical or bearing damage during handling and transport. All packaging and preservation materials must be supplied by the Supplier. b) each package must be clearly and indelibly inscribed with the Purchaser s name, the address of the delivery place, the Purchaser s contract number and any safety warnings for the contents Separable portions Separable portions may be directed by the Purchaser, who shall clearly identify for each, the: a) item of the Equipment; b) date for delivery; and c) respective amounts for security, liquidated damages and delay damages (all calculated pro-rata according to the ratio of the value of the separable portion to the contract sum). 20 Risk in and ownership of the Equipment 20.1 Risk in the Equipment Risk in the Equipment shall pass from the Supplier to the Purchaser as stated in Item 27. Unless the Equipment is in the Supplier s possession, the Purchaser shall take reasonable measures to protect the Equipment from loss or damage occurring after delivery but before risk in the Equipment has passed to the Purchaser Ownership of Equipment Ownership of, and unencumbered title in, the Equipment or any part of it shall pass to the Purchaser at the time or times specified in Item Clause 20: Risk in and ownership of the Equipment Copyright

25 If the Equipment or any part of it is to be imported, ownership of the Equipment or that part, as the case may be, shall pass to the Purchaser upon: a) payment to the Supplier of the value of the Equipment to be so imported; and b) receipt by the Purchaser or an agent of the Purchaser of a clean on board bill of lading or airways bill, as the case may be, drawn or endorsed to the order of the Purchaser, appropriate insurance certificates and a customs invoice for the Equipment or that part, as the case may be. If ownership of the Equipment has passed to the Purchaser pursuant to this subclause and: a) subclause 21.4(a) applies, ownership of the Equipment shall revert to the Supplier upon the Supplier s delivery to the Purchaser of the replacement Equipment; or b) subclause 21.4(b) applies, ownership of the Equipment shall revert to the Supplier upon the Supplier s compliance with subclause 21.7(a) and (b). 21 Acceptance or rejection of Equipment 21.1 Notification Within the period stated in Item 29 after: a) the later of: i) delivery; or ii) if applicable, completion of acceptance testing, or the date for completion of acceptance testing stated in Item 25, whichever first occurs; or b) the receipt of a notice given by the Supplier pursuant to subclause 21.6, the Purchaser shall give a written notice to the Supplier that the Equipment is acceptable or that it is rejected. If the Purchaser fails to so notify the Supplier, acceptance shall be deemed to have been notified upon the expiration of the period stated in Item 29. The Purchaser shall be under no obligation to give written notice to the Supplier that the Equipment is acceptable unless: a) the Purchaser is satisfied that the Equipment is satisfactory and complies with the as manufactured drawings approved by the Purchaser; and b) all drawings and manuals required to be supplied by the Supplier, have been duly supplied by the Supplier Details of notification If notice of acceptance of the Equipment is given pursuant to subclause 21.1, the notice shall state the minor defects, if any, to be rectified by the Supplier. Copyright Clause 21:Acceptance or rejection of Equipment 19