1. Definitions
1.1 “Agreement” shall mean the agreement formed between Company and Customer upon the Customer accepting the Company’s Tender Offer, which agreement incorporates the terms and conditions of the Service of the Contract, the Charter Party and these General Terms and Conditions.
1.2 “Area of Work” shall mean the area of location or site at which the company or any other Company must perform the Service in accordance with the Service contract.
1.3 “Barge” shall mean the barge described in the Tender Offer (if any).
1.4 “Cause of Action” shall mean a breach of the Agreement or any other common law, equitable or statutory cause of action arising out of the operation of the Agreement.
1.5 “Charge” shall mean an amount that the Company may charge to the Customer in accordance with the Agreement or any other agreement existing between Parties.
1.6 “Charter Party” shall mean the Barge Charter Party referred to in the Tender Offer (if any).
1.7 “Company” shall mean Hagstrom Drilling Pty Ltd (ACN 085 658 733).
1.8 “Contract” shall mean any agreement entered into by the Customer and the Company for the supply Services whether that agreement is in writing, electronic, verbal or otherwise.
1.9 “Customer” shall mean the “Customer” as defined in the Tender Offer
1.10 “Day Rate” shall mean the daily rate at which the Company calculates each charge based in a 12 hour shift inclusive of travel. Night shift shall incur 25% loading on rates.
1.11 “Document” shall mean this document comprising the Tender Offer, these Terms and Conditions annexed to the Tender Document.
1.12 “Guarantor” shall mean that person (or persons), or entity who agrees herein to be liable for the debts of the Customer on a principal debtor basis.
1.13 “Parties” shall mean the Company and Customer and “Party” shall mean either Company or the Customer.
1.14 “PPSA” Shall mean Personal Property Securities Act 2009 (Cth).
1.15 “Price” shall mean the cost of the Services as agreed between the Company and the Customer subject to clause 4 of these Terms.
1.16 “Rig Work Rate” shall mean the Company’s standard rate at which the Company calculates charges for the Services in which the Company has spent any time in the hole and attendant time spent freeing rods to due geological conditions, running and pulling rods, casing operations, cementing operations, hole surveys, stabilising holes, installing collars, vibrating wire piezometers, clearing blockages, moving between sites, site clearing, change drilling methodology and any activities outside of drilling meters or at the Customer’s request.
1.17 “Services” shall mean all services supplied by the Company to the Customer to which the Company must perform in accordance with Services Contract.
1.18 “Standby Rate” shall mean the Company’s standard rate at which the Company calculates charges for the Services in the event of prohibiting drilling operation including but not limited to daily travel, client prestart meetings, equipment checks, cyclones, high winds, a storm or other adverse weather conditions, delays arising from any failure of any of the Customer’s responsibilities in clause 16, or a force majeure event in clause 13 limiting the company’s access to the Area of Work or creating dangerous work conditions.
1.19 “Tender Offer” shall mean the Tender offer to which these General Terms and Conditions are referred.
1.20 “Terms” means these Terms & Conditions of Trade as updated by the Company from time to time.
2. Acceptance
2.1 These Terms will apply to all Contracts unless otherwise agreed by the Company in writing. The Customer’s acceptance of Services supplied by the Company shall constitute acceptance of these Terms.
2.2 These Terms apply to every supply of service by the Company to/for the Customer.
2.3 Where more than one Customer has entered into this agreement, the Customers shall be jointly and severally liable for all obligations of the Customer under a Contract.
2.4 The Customer undertakes to give the Company not less than fourteen (14) days prior written notice of any proposed change in the Customer’s name and/or any other change in the Customer’s details (including but not limited to changes in the Customer’s address, facsimile number, or business practise).
3. Services
3.1 The Services are as described on the invoices, quotation, work authorisation or any other work commencement forms as provided by the Company to the Customer.
3.2 In performing the Services, the Company shall use the goods and equipment provided for the Service Contract. However, if the Company incurs additional costs in modifying its goods or equipment to meet the Customer’s requirements or requests, then the Company may charge those cost plus 15% to the Customer.
3.3 The Company shall do the following:
(a) operate all equipment used in performing the Services in conformity with all applicable laws, certifications, licences and manufacturers requirements;
(b) maintain that equipment is proper and safe operating condition.
4. Price and Payment
4.1 At the Company’s sole discretion, the Price shall be either:
(a) as indicated on invoices provided by the Company to the Customer in respect of Services supplied; or
(b) the Company’s quoted Price (subject to clause 4.2) which shall be binding upon the Company provided that the Customer shall accept in writing the Company’s quotation within thirty (30) days.
4.2 Any variation from the plan of scheduled works or specifications will be charged for on the basis of the Company’s quotation and will be shown as variations on the invoice. Payment for all variations must be made in full at their time of completion.
4.3 Except in relation to approved Customers (at the Company’s sole discretion), time for payment for the Services shall be of the essence and will be stated on the invoice, quotation or any other order forms.
4.4 Payment will be made by cash on delivery, or by cheque, or by bank cheque, or by credit card, or by direct credit, or by any other method as agreed to between the Customer and the Company.
4.5 Each Charge shall be exclusive of all applicable levies and taxes (including, without limitation, any GST and duties) imposed by any authority of government of government agency, all of which shall be assumed and paid promptly by the Customer.
4.6 Delivery of the Goods and/or Services shall be made to the Customer’s appointed address or location. The Customer shall make all arrangements necessary to take delivery of the Services whenever they are tendered for delivery, or delivery of the Goods shall be made to the Customer at the Company’s address.
4.7 All amounts which are due by the Customer to the Company under the Agreement and which are not paid when due shall accrue interest from the day following the due date until paid in full. Interest shall be computed at 1.5% per month on a monthly basis.
4.8 The Charges for the service as indicated in the Schedule of Rates is not subject to enterprise bargaining agreement or any wage agreement.
4.9 The Company shall not be liable for any loss or damage whatsoever due to failure or delay by the Company to deliver the Goods (or any of them) promptly or at all.
5. Dispute resolution
5.1 If any dispute arises out of or in connection with the Agreement or the interpretation of its terms, a Party may not commence any court proceedings relating to the Dispute unless this clause has first been compiled with, except where the Party seeks urgent interlocutory relief.
5.2 A party claiming that a Dispute has arisen under or in relation to the Agreement must give notice in writing to the other party specifying the nature of the Dispute.
5.3 On receipt of that notice by the other party, the Parties must use their best endeavours to resolve the Dispute expeditiously.
5.4 If the Parties have not resolved the Dispute within fourteen (14) days of receipt of the notice referred to in Clause 5.6, or further period as is agreed to in writing by them, the Dispute must (at the instigation of any Party) go to either:
(a)mediation in accordance with clauses 5.2 and 5.3; or
(b) arbitration in accordance with clause 5.5.
5.5 The mediation must be confidential with the costs of the mediator being borne equally by the Parties and each Party must also bear its own legal costs in respect of the mediation.
5.6 If mediation does not resolve the Dispute:
(a) after twenty eight (28) days, or any longer period agreed to by the Parties in writing; or
(b) by any earlier date as the mediator notifies the Parties in writing that the mediation is at an end then any Party may give notice in writing to the other Party that the mediation has not resolved the dispute and request that within fourteen (14) days an arbitrator be appointed
5.7 If the Dispute is not resolved at mediation then each Party is at liberty to claim their costs against the other Parties, including the costs referred to in clause 5.6.
5.8 The arbitrator appointed to resolve the dispute will be: (a) either as agreed in writing by the Parties; or (b) failing any agreement under sub-clause 5.9 within seven (7) days of a request by one Party to the other – as appointed by the President of the Law Society of Western Australia, or the President’s nominee.
5.9 In any arbitration proceedings hereunder: (a) the arbitration must be carried out in accordance with the Commercial Arbitration Act 1985 (WA); (b) each Party shall be entitled to be represented by a duly qualified legal practitioner or other representative; (c) the arbitrator shall have no power to order any of the Parties to take any steps to achieve a settlement of the dispute or difference the subject of the Dispute. (d) each Party irrevocably consents to the other Party making an application or bringing an appeal to the Supreme Court of Western Australia on, or to determine, any question of law arising in the course of the arbitration. (e) the arbitration proceedings shall be conducted in Perth, Western Australia; (f) the arbitrator may award whatever interest the arbitrator considers reasonable; (g) if one Party has overpaid another, whether under a mistake of law or fact, the arbitrator may order repayment together with interest; (h) the arbitrator may, if they consider it appropriate, rectify any of the terms of the Agreement (but not this clause 5) so as to conform to the true intention of the Parties, in accordance with the principles of the general law applicable to the rectification of contracts.
6. Risk
6.1 All risk for the Services passes to the Customer on delivery.
6.2 If any of the Goods are damaged or destroyed prior to property in them passing to the Customer, the Company is entitled, without prejudice to any of its other rights or remedies under these Terms (including the right to receive payment of the balance of the Price for the Services), to receive all insurance proceeds payable for the Goods. This applies whether or not the Price has become payable under the Contract. The production of these Terms by the Company is sufficient evidence of the Company’s rights to receive the insurance proceeds without the need for any person dealing with the Company to make further enquiries.
7. Company’s Responsibility
7.1 The Company shall be responsibility for the performance of service in consideration for the Customer accepting the Tender Offer, the Company agrees to perform the Services in accordance with the Service Contract to the Customer in accordance with the Charter Party.
7.2 The Company shall perform the services as follows: (a) In a good and workmanlike manner, in accordance with generally accepted with Australian industry standards (b) In compliance with the requirements of the Agreement; and (c) Incompliance with applicable Australian laws and regulations, applicable codes and standards imposed by Australian laws and regulations, applicable codes and standards which have been adopted by the Customer and notified to the Company. (d) The Company shall endeavour to perform the Services in a timely manner. (e) The Company shall use the goods and equipment provided for by the Services Contract. However, if the Company incurs any costs in modifying its goods or equipment to meet the Customer’s requirements or requests, then the Company may charge the Customer for those costs plus 15%. (f) The Company shall operate and maintain equipment used by the Company in the performing of the Services in conformity with all applicable Australian laws, certifications, licences and manufacturer’s requirements. (g)The Company must furnish personnel assigned in the Services Contract and other personnel as is reasonably required to perform the Services and ensure the personnel are qualified and sufficiently experienced to perform the Service.
7.3 To the extent permitted at law, the Customer hereby disclaims any right to rescind, or cancel the Contract or to sue for damages or to claim restitution arising out of any misrepresentation made by the Company or any of its servants or agents.
8. Insurance
8.1 The Company agrees to carry: (a) Workers compensation and accident insurance cover to a maximum liability of $100,000,000,00 per event, in respect to all employees, contractors to be used by the Company in the performance of the Services. (b) Plant and Equipment insurance as is legally required no less than $30,000,000 limit of indemnity. (c) Third party liability insurance with an indemnity limit no less than $50,000,000 for each and every claim in respect of the Services.
9. Limitation of Liability
9.1 To the extent permitted by law, the Company is not in any way liable to the Customer for any indirect or consequential loss or damage whatsoever incurred or suffered by the Customer as a result of any cause or action in these Terms provided with the Services.
10. Competition and Consumer Act 2010
10.1 Nothing in this agreement is intended to have the effect of contracting out of any applicable provisions of the Competition and Consumer Act 2010 except to the extent permitted by that Act.
11. Confidential Information
11.1 Each of the Parties acknowledges that in connection with the formation, content of (including but not limited to, the pricing details), and performance of the Agreement, it may be exposed to certain confidential information, the disclosure of which to third parties may be damaging to the other party. Such confidential information includes, but is not limited to the Customer’s and the Company’s documents, rates, charges, business plans, financial information and data, results of any coring, testing and surveying, technical data, business methods, and documents marked “Confidential”.
12. Default & Consequences Of Default
12.1 Interest on overdue invoices shall accrue from the date when payment becomes due daily until the date of payment at a rate of 2.5% per month (compounding per calendar month) and shall accrue at such a rate after as well as before any judgement.
12.2 If the Customer defaults on any obligation under a Contract: (a) the Customer shall indemnify the Company from and against all the Company’s costs and disbursements including on a solicitor and own client basis and in addition all of the Company’s nominees costs of collection. (b) the Customer agrees that the Company may negotiate payment with any interested third party.
12.3 Without prejudice to any other remedies the Company may have, if at any time the Customer is in breach of any obligation (including those relating to payment), the Company may suspend or terminate the supply of Services to the Customer and any of its other obligations under the terms and conditions. The Company will not be liable to the Customer for any loss or damage the Customer suffers because the Company exercised its rights under this clause.
12.4 In the event that: (a) any money payable to the Company becomes overdue, or in the Company’s opinion the Customer will be unable to meet its payments as they fall due; or (b) the Customer becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for benefit of its creditors; or (c) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Customer or any asset of the Customer: then without prejudice to the Company’s other remedies at law,
12.5 the Company shall be entitled to cancel all or any part on any order of the Customer which remains unperformed in addition to and without prejudice to any other remedies and all amounts owing to the Company shall, whether or not due for payment, immediately become payable.
13. Force Majeure
13.1 The Company is not liable for any failure to commence or complete any of its obligations under the Services Contract if the failure is due to any cause beyond Company’s reasonable control (“Force Majeure Event”), including but not limited to the following causes: Acts of God, fire, flood or other catastrophes, tide restrictions, inductions, inclement weather, any law, order, regulation, direction, action or request of any governmental entity or agency, or any civil or military authority, national emergency, insurrections, riots, strikes, lock-outs, work stoppages or other labor difficulties;
13.2 If the Company is unable to carry out any of the Services for thirty (30) consecutive days or more as a result of a Force Majeure Event, then: (a) the Customer shall not be obligated to pay the Company for the affected Services for so long as the Company is unable to deliver them to Customer; (b) notwithstanding sub-clause 14, the Customer must pay to the Company the Company’s Charges calculated at the Standby Rate; (c) the term of the Services Contract shall be extended for a period of time equal to the period of time for which Company was unable to carry out Services; and (d) notwithstanding the foregoing, the Company may at any time terminate the Services Contract by written notice to the Customer.
13.3 The Company is not responsible or liable to the Customer in any way whatsoever for the consequences of any of the following occurring as a result of a Force Majeure Event: (a) any delay or failure in the completion or delivery of Services; (b) any delay in or failure of the performance of the Company’s obligations under the Services Contract; (c) termination of the Services Contract in accordance with clause 14.
14. Termination
14.1 The Company may immediately terminate the Services contract by written notice to the Customer, and by discontinue the provision of Services, without any liability to the Customer whatsoever, if: (a) the customer fails to pay any Charge invoiced to the Customer by the due date for the payment or by any later date agreed to in writing by the Company; (b) where the invoice referred to in clause 14.1(a) is re-issued after removal of any disputed items – the Customer fails to pay any Charges specified in the re-issue invoice by its due date for payment or by any later date agreed to in writing by the Company; (c) The Customer fails to cure its breach of any provision of the Agreement within 30 days after delivery of written notice by the Company to the Customer requiring the Customer to remedy the breach, or; (d) any bankruptcy, insolvency, administration, liquidation, receivership or winding up proceeding is commenced in respect of the Customer.
14.2 If the Company terminates the Services contract pursuant to clause 14.1 before the completion of the Services, then the Customer must immediately pay the Company: (a) all amounts due by the Customer to the Company under the Agreement; and (b) all costs and expenses incurred by the Company in connection with the termination (including, without limitation, legal costs, fair and reasonable demobilisation costs, and other costs as reasonably determined by Company); and (c) any reasonable sum notified by the Company to the Customer to compensate the Company for is loss of overhead and profit resulting from the termination.
15. Privacy Act 1988
15.1 The Customer and/or the Guarantor/s agree for the Company to obtain from a credit reporting agency a credit report containing personal credit information about the Customer and Guarantor/s in relation to credit provided by the Company.
15.2 The Customer and/or the Guarantor/s agree that the Company may exchange information about Customer and Guarantor/s with those credit providers maned in the Application for Credit account or named in a consumer credit report issued by a reporting agency for the following purposes: (a) To assess an application by Customer; (b) To notify other credit providers of a default by the Customer; (c) To exchange information with other credit providers as to the status of this credit account, where the Customer is in default with other credit providers; and (d) To assess the credit worthiness of Customer and/or Guarantor/s.
15.3 The Customer consents to the Company being given a consumer credit report to collect overdue payment on commercial credit (Section 18K(1)(h) Privacy Act 1988). (a) The Customer agrees that Personal Data provided may be used and retained by the Company for the following purposes and for other purposes as shall be agreed between the Customer and Company or required by law from time to time: (b) provision of Services & Services; (c) marketing of Services and or Services by the Company, it agents or distributors in relation to the Services and Services; (d) analysing, verifying and/or checking the Customer’s credit, payment and /or status in relation to provision of Services/Services; (e) processing of any payment instructions, direct debit facilities and /or credit facilities requested by Customer; and (f) enabling the daily operation of Customer’s account and/or the collection of amounts outstanding in the Customer’s account in relation to the Services and Services.
15.4 The Company may give, information about the Customer to a credit reporting agency for the following purposes: (a) to obtain a consumer credit report about the Customer; and or (b) allow the credit reporting agency to create or maintain a credit information file containing information about the Customer.
16. Customers Responsibilities
16.1 The Customer must obtain and validly maintain any government or other regulatory body licenses, permits or approvals (as the case may be) that it may need for the Company to supply the Services, including but not limited to the Area of Work and the rights of ingress and egress to and from the Area of Work, and must advise the Company of any limitations or restrictions affecting ingress and egress.
16.2 The Customer must procure that the Company has, during the term of the Services Contract, free and uninhibited access to the Area of Work for the purposes of performing the Services. If the Services are delayed as a result of the Customer breaching this clause 17, then the Company may, for the duration of the delay, charge the Customer for the Services at the Standby Rate calculated daily.
16.3 The Customer must, at its sole cost and expense, ensure that the proposed drilling area in the Area of Work is free and clear of any and all obstructions or hazards including underground services and must notify the Company of the same.
16.4 The Customer is, at its sole cost and expense, responsible for the core once it has been extruded from the inner tube including but not limited to, transfer from the barge to a nominated soil laboratory.
16.5 The Customer must, in respect of the Area of Work, provide and maintain a safe workplace and ensure that employees of the Company, other workers and others are protected from health and safety risks.
16.6 The Customer shall assume liability at all times for damage or destruction of Customer’s equipment and materials and the Company shall be under no liability to reimburse the Customer for any such loss or damage unless such loss or damage was caused by the negligent act, omission or material default of the Company.
16.7 The Customer is responsible for, and for the control and removal of, all Pollution and Contamination arising out of or in connection with the Services or the Area of Work other than any Pollution or Contamination arising wholly in the Company’s possession and control and directly attributable to the Company’s goods, equipment or facilities. The Customer irrevocably indemnifies the Company, and must hold the Company harmless, from and against all loss, damage, expense, claim, fine, penalty, demand or liability whatsoever arising directly or indirectly from any Pollution or Contamination for which the Customer is responsible for.
16.8 Notwithstanding any other provision in these General Terms and Conditions, the Customer must obtain (and pay any costs and fees associated with) all appropriate licenses, permissions or authority required for the disposal of waste. The Customer must pay the Company’s costs of such disposal.
17. Postponement or Cancellation
17.1 If the Customer for any reason postpones any of the Services for a period of 15 days or more, or cancels any of the Services, then the Company may charge the Customer for all Services completed up to the postponement or cancellation date and for all other costs which the Company incurs, or which otherwise accrue, as a result of the postponement or cancellation. This Clause 17 does not limit any other rights or remedies available to the Company as a result of the postponement or cancellation.
18. General
18.1 If any provision of the Contract or these Terms shall be invalid, void, illegal or unenforceable the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired.
18.2 All Services supplied by the Company are subject to the laws of Western Australia and the Company takes no responsibility for changes in the law which affect the Services supplied.
18.3 The Customer shall not set off against the Price amounts due from the Company.
18.4 The Company may license or sub-contract all or any part of its rights and obligations without the Customer’s consent.
18.5 The Company reserves the right to review these Terms and Conditions at any time and from time to time. If, following any such review, there is to be any change in these Terms, that change will take effect from the date on which the Company notifies the Customer of such change.
