Supply Contract For: WORK PACKAGE: MOPU 1002 (1700TPD) OXYGEN PLANT Between Lihir Gold Limited and Air Products PLC

Oxygen plant contract

Supply Contract

For:

WORK PACKAGE: MOPU 1002 (1700TPD)
OXYGEN PLANT

Between

Lihir Gold Limited

and

Air Products PLC

Oxygen Plant Supply Contract     Contents 1

Instrument of Agreement

Instrument of Agreement

Date4
Between the parties
		Lihir Gold Limited
		of
		▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
		Cnr of Champion Parade and ▇▇▇▇▇▇▇▇ Street,
		(PO Box 789)
		Port Moresby
		Papua New Guinea
		Air Products PLC of
		Hersham Place Technology Park
		Molesey Road
		▇▇▇▇▇▇ on ▇▇▇▇▇▇
		▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
		▇▇▇▇▇▇▇

Background			1			The Principal wishes to enter into a contract with the Supplier for the design, engineering, manufacture and supply of the Equipment in accordance with the Contract.
			2			The Supplier has agreed to design, engineer, manufacture and supply the Equipment in accordance with the Contract.
The parties agree			as set out in the operative part of this agreement, in consideration of, among other things, the mutual promises contained in this agreement.

Oxygen Plant Supply Contract     page 1

1		Definitions and interpretation
1.1		Definitions
		The meanings of the terms used in this document are set out in clause 1.1 of Annexure C General Conditions of Contract.
1.2		Interpretation
		In this Instrument of Agreement, all defined terms used and which are defined in Annexure C General Conditions of Contract have the same meaning as given to them in Annexure C General Conditions of Contract.
2		Supply of the Equipment
		In consideration of the payment by the Principal to the Supplier of the Contract Price, the Supplier shall supply the Equipment and otherwise perform its obligations in accordance with the Contract.
3		Payment of Contract Price
		Subject to the Supplier properly performing its obligations under the Contract, the Principal shall pay the Supplier the Contract Price.
4		Contract documents
		The Contract consists of the documents listed below:
(a)		this Instrument of Agreement;
(b)		Annexure A — Contract Details;
(c)		Annexure B — Milestones and Pricing;
(d)		Annexure C — General Conditions of Contract;
(e)		Annexure D — Technical Specification;
(f)		Annexure E — Form of Bank Guarantee;
(g)		Annexure F — Parent Company Guarantee;
(h)		Annexure G — Liquidated Damages Regime; and
(i)		Annexure H — Process Data Sheet.
		In the event of any inconsistency, the Contract shall be interpreted in accordance with the order of precedence shown above from the Instrument of Agreement as the highest in the order.
5		Entire agreement
5.1		Previous agreements
		The Contract supersedes all previous agreements in respect of its subject matter and embodies the entire agreement between the parties.

Oxygen Plant Supply Contract     page 2

Signing page

		Executed as an agreement Signed for
		Lihir Gold Limited
		by its authorised representative
sign here4		/s/  ▇▇▇▇▇▇ ▇▇▇▇
		Authorised Representative
print name		▇▇▇▇▇▇ ▇▇▇▇
		in the presence of
sign here4		/s/  ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
		Witness
print name		▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
		Signed for
		Air Products PLC
		by its authorised representative
sign here4		/s/  ▇▇▇▇▇ ▇▇▇▇▇▇
		Authorised Representative
print name		▇▇▇▇▇ ▇▇▇▇▇▇
		in the presence of
sign here4		/s/  ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
		Witness
print name		▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇

Oxygen Plant Supply Contract     page 3

Annexures

Table of contents
Annexure A — Contract Details			5
Annexure B — Milestones and Pricing			8
Annexure C — General Conditions			15
Annexure D — Technical Specification			16
Annexure E — Form of Bank Guarantee			17
Annexure F — Parent Company Guarantee			18
Annexure G — Liquidated Damages Regime			20
Annexure H — Process Data Sheet			21

Oxygen Plant Supply Contract     page 4

Annexure A

Annexure A — Contract Details

Item		Issue		Detail
1		Contract Price		the amount set out in Annexure B, as adjusted only in accordance with clause 4 of Annexure B,.
2		Condition Precedent Date (see clause 2.2 of Annexure C)		15 June 2008 unless otherwise agreed in writing between the parties
3		Date for Delivery (see clauses 1.1 and 14.2 of Annexure C)		The delivery date(s) to be met in accordance with the Project Program with the last delivery to be on or before  weeks from the Commencement Date.
4		Principal Authorisations (see clause 18.3 of Annexure C)		Authorisations required to install or use the Equipment in Papua New Guinea.
5		Parent Company (see clause 2 of Annexure C)		Air Products Group Limited Hersham Place Technology Park Molesey Road ▇▇▇▇▇▇ on ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
6		Site (see clause 1.1 of Annexure C)		Lihir Mine Site, Putput, Lihir Island, New Ireland Province, Papua New Guinea
7		Not used
8		Governing Law (see clause 33.4(a) of Annexure C)		Queensland, Australia
9		Exclusive Jurisdiction (see clause 33.4(b) of Annexure C)		Courts of Queensland, Australia
10		Industrial Special Risk Insurance (see clause 28.1(a)(1) of Annexure C)		Minimum amount of US$ (US dollars) per occurrence

Oxygen Plant Supply Contract     page 5

Annexure A — Contract Details

Item		Issue		Detail
11		Public and Product Liability Insurance (see clause 28.1(a)(2) of Annexure C)		Minimum amount of US$ (US dollars) per occurrence
12		Not used
13		Not used
14		Amount of Bank Guarantee (required under clause 5 of Annexure C)		Refer Annexure B
15		Delay Event (see clause 14.3 of Annexure C)		Refer Annexure C
16		Delay Liquidated Damages cap (see clause 27 of Annexure C)		Refer Annexure G
17		Performance Guarantee Payments cap (see clause 27 of Annexure C)		Refer Annexure G
18		Maximum liability (see clause 27 of Annexure C)		of the Contract Price
19		Delay Liquidated Damages Rate (see clause 14.4 of Annexure C)		Refer to Annexure G
20		Interest Rate (see clause 1.1 of Annexure C)		London Interbank Offered Rate (LIBOR) plus 2%
21		Not used
22		Principal		Lihir Gold Limited
		Address		▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Cnr of Champion Parade and ▇▇▇▇▇▇▇▇ Street, (PO Box 789), Port Moresby, Papua New Guinea
		Attention		▇▇▇▇▇▇ Gominsek, Senior Project Engineer
		Fax		▇▇▇▇ ▇▇▇▇ ▇▇▇

Oxygen Plant Supply Contract     page 6

Annexure A — Contract Details

Item		Issue		Detail
23		Supplier		Air Products PLC
		Address		Hersham Place Technology Park
				Molesey Road
				▇▇▇▇▇▇ on ▇▇▇▇▇▇
				▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
				▇▇▇▇▇▇▇
		Attention
		Fax
24		Principal’s Representative Address		▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ Street, (PO Box 789), Port Moresby, Papua New Guinea
		Attention
		Fax

25		Key Personnel (see clause 9 of Annexure C)		Role Business Manager — Large ASU SOE		Name
				Senior Project Manager / Project Sponsor
				Project Manager

Oxygen Plant Supply Contract     page 7

Annexure B

     Annexure B — Milestones and Pricing

Contract Price

Oxygen Plant Supply Contract     page 8

1		Indicative Milestone Amounts and Actual Milestone Events
(a)		Milestone Payment Schedule, Indicative Cost Breakdown and Actual durations of Works (approximate payment value is calculated on approximate Contract Price)

Oxygen Plant Supply Contract     page 9

Explanatory Notes to Annexure B:

Note 1 — Any other payments made by the Principal under the signed by the parties on or about are to be deducted from the amount due at the milestone 0.0 (deposit at Contract Signing)

Note 2 — Items marked “*” are Cost Plus items (meaning the Supplier is to charge the Principal the cost of the items plus a 10% overhead)

Note 3 — Documentary Evidence For Milestones are as follows (see also clause 18.1(c)(1) of Annexure C):

Wherever “Purchase Order placed with supplier” is indicated it will be evidenced by an unpriced PO from AP to the subcontractor together with PO acknowledgement from the subcontractor.

Factory Testing is determined by the Supplier acceptance certificate of the item, or pressure test certificate where applicable.

FAS Delivery of Component shall be evidenced by documentation in accordance with Incoterms (2000).

Note 4 — Delivery of compressors is required at  weeks, however Liquidated Damages only commence at  weeks.

Oxygen Plant Supply Contract     page 11

2     Consolidated Milestones Table and Bank Guarantee Requirements

Note 1 — The individual actual payments for milestones identified in Annexure B item 1 as being cost plus items may increase or decrease from the timing indicated, and milestones will be invoiced at actual completion provided notice is provided to the Principal for variations in excess of 2 weeks from the time listed. The Supplier must comply with clause 14.3 of Annexure C in this regard.

Note 2 — With reference to note 1, the bank guarantees supplied by the Principal to the Supplier may be adjusted in line with payments made, such that the sum of payments made and outstanding bank guarantee is maintained at of Contract Value, except for milestone and Contract Signing and Milestone 1, where of Contract Value is acceptable (per table above).

Oxygen Plant Supply Contract     page 12

3		Invoicing
(a)		Upon the achievement of each Milestone Event, the Supplier must submit to the Principal’s Representative an original tax invoice showing:

	(1)		the relevant Milestone Event; and
	(2)		such supporting documentation as reasonably required by the Principal (in reference to the explanatory notes to the table above).

(b)		With each Invoice, the Supplier must certify to the Principal that no Subcontractor or any other person engaged by the Supplier arising out of or in connection with this contract has a lien or similar entitlement to any of the Equipment or a charge on any moneys payable by the Principal to the Supplier.
(c)		No later than 30 days after the receipt by the Principal of an original tax invoice and any other documentation required under clause 3(a), the Principal must pay the Supplier the amount shown in the tax invoice.
(d)		On receipt of the Principal’s payment, the Supplier will release the original bank guarantee where due.
(e)		If the Principal disputes any amount in the invoice as presented by the Supplier, the following shall apply:

	(1)		The Principal must, within 30 days of receipt of the invoice, notify the Supplier of the proportion of the invoice which is disputed;
	(2)		In the meantime, the Principal must in accordance with clause 3(c), pay the Supplier that proportion of the invoice which is not disputed;
	(3)		Upon the issue of a notice under this clause 3(d)(1), the parties must discuss the nature of the dispute and work together in a reasonable manner to resolve the disputed amount;
	(4)		If, at the expiry of 60 days from the date of receipt of invoice (or such other time as agreed in writing between the parties), the parties have not reached agreement on the disputed amount, either party may elect to address the dispute using the dispute resolution process set out in clause 32 of Annexure C.

(f)		Any payment made under this clause is not acceptance of performance and is on account only.
(g)		Notwithstanding anything else in this contract, the Principal will not be required to make any payment to the Supplier unless the Performance Security required by the contract has been provided by the Supplier to the Principal in accordance with this contract.
4		Adjustments to the Contract Price
(a)		The Contract Price shall not be subject to adjustment for rise and fall.
(b)		For the avoidance of doubt, the Contract Price is not subject to adjustment for rise and fall by reason of fluctuations in exchange rates.

Oxygen Plant Supply Contract     page 13

5		Valuation of variations
		In addition to the variation mechanism set out in clause 13 of Annexure C, the parties agree that the following principles will apply to the valuation of the listed types of variations:
(a)		For changes in relation to the DCS (as that term is defined in the Technical Specification), any variations will be priced based on additional labour performed by the Supplier at the then prevailing Supplier rates for senior or project engineers;
(b)		Prefabrication of pipe spools not already contemplated in the Technical Specification will be at additional cost for only so much as that prefabrication exceeds any allowance in the Technical Specification; and
(c)		Capital spare parts for the Equipment that are not already listed or included in the Technical Specification will be charged to the Principal at the Supplier’s actual cost plus a fixed margin of %.

Oxygen Plant Supply Contract     page 14

Annexure C

Annexure C — General
Conditions

Contents

		Table of contents
		General Conditions					5
1		Definitions and interpretation					5
		1.1		Definitions			5
		1.2		Interpretation			15
2		Conditions Precedent					16
		2.1		The Conditions Precedent are:			16
		2.2		Conditions precedent to satisfy or waive			16
		2.3		Non-satisfaction of the conditions precedent			17
3		Parent company guarantee					17
4		Performance and payment					17
		4.1		Performance of Works			17
		4.2		Payment of Contract Price			17
		4.3		Interest on overdue payments			17
		4.4		Set Off			17
		4.5		No adjustment to Contract Price			17
5		Securities					18
		5.1		Supplier Performance Security			18
		5.2		Principal Payment Guarantee			18
		5.3		Replacement Securities			18
		5.4		Release of Performance Security			19
		5.5		Conversion of Performance Security			19
6		Warranties					19
7		Documents					21
		7.1		Supply of documents by Principal			21
		7.2		Supply of documents by the Supplier			22
		7.3		Review documents (other than Critical Documents) provided by the Supplier			22
		7.4		Approval of Critical Documents			23
		7.5		Availability of documents			23
		7.6		Documents to be in English			24
		7.7		Inconsistencies			24
8		Supplier acknowledgement					24
9		Representatives					25
		9.1		Appointment and Delegation			25
		9.2		Role of Principal's Representative			25
		9.3		Disputes as to Principal's Representative's decisions			25
		9.4		Supplier and Principal not relieved			25
		9.5		Supplier's Representative			25
10		Key Personnel					26
		10.1		Key Personnel to perform Works			26
		10.2		Removal of Key Personnel by Supplier			26
		10.3		Removal of Key Personnel by Principal			26

Oxygen Plant Supply Contract     Contents 1

Contents

11		Equipment					27
		11.1		Provision of Equipment			27
		11.2		Quality of Equipment			27
		11.3		Quality assurance			27
		11.4		Defective Equipment			27
		11.5		Direction to remedy and other rights			28
12		Testing					28
		12.1		Inspection and Test Plan (ITP)			28
		12.2		Principal may order tests			28
		12.3		Who conducts tests?			29
		12.4		Costs of testing			29
		12.5		Other obligations remain unaffected by testing			29
13		Variations					30
		13.1		Supplier must carry out Variation			30
		13.2		Contract Price Adjustment			30
		13.3		Other adjustments			30
		13.4		Payment Claim			31
		13.5		Changes by the Supplier			31
		13.6		Variation Order requirement			31
14		Commencement and Delivery Completion					31
		14.1		Time for commencement			31
		14.2		Time for Delivery Completion			31
		14.3		Extensions of time			31
		14.4		Delay Liquidated Damages			33
15		Progress and programming of the Works					34
		15.1		Progress			34
		15.2		Project Program — Minimum Requirements			34
		15.3		Project Program Updates			34
		15.4		Supplier acknowledgement			35
		15.5		Progress Meetings			35
		15.6		Directions			35
16		Access					36
17		Suspension of the Works					36
		17.1		Suspension by the Principal’s Representative			36
		17.2		Suspension by the Supplier			36
		17.3		Recommencement of work			37
		17.4		Cost of suspension			37
18		Delivery Completion and Final Completion					37
		18.1		Delivery Completion			37
		18.2		Final Completion			38
		18.3		Risk in and title to the Equipment			38
19		Performance Guarantees, Testing and Acceptance					38
		19.1		Performance Guarantees			38
		19.2		Principal's role during installation and commissioning			38
		19.3		Demonstrating achievement of Performance Guarantees			38
		19.4		Test Results			39
		19.5		Performance Test Acceptance			39

Oxygen Plant Supply Contract     Contents 2

Contents

		19.6		No adjustment following Performance Test			39
		19.7		Outcomes of Performance Testing			39
		19.8		Repeat Performance Tests			40
		19.9		Failure to perform a Performance Test			40
		19.10		Payment of Performance Guarantee Payments			40
		19.11		Performance Test at end of Warranty Period			41
20		Warranty Period					41
		20.1		Warranty Period			41
		20.2		Defects at the Delivery Completion Date and during the Warranty Period			41
		20.3		Time for performing Defect rectification			42
		20.4		Access for rectification of Defects			42
		20.5		Failure to remedy Defects			42
		20.6		Urgent rectification			43
21		Laws and Authorisations					43
		21.1		Inconsistencies			43
		21.2		Authorisations			43
22		Taxes					44
		22.1		Liability for Taxes			44
		22.2		Export of Equipment			44
23		Assignment and subcontracting					45
		23.1		Assignment			45
		23.2		Subcontracting			45
		23.3		Subcontractor warranties			45
		23.4		Subcontract provisions			46
		23.5		Supplier's responsibility			46
		23.6		Conduct of personnel			46
24		Confidential Information					46
		24.1		Non disclosure			46
		24.2		Permitted disclosure			46
		24.3		Confidentiality undertakings			47
		24.4		Return of Confidential Information			47
		24.5		Survival			47
		24.6		Media releases			47
25		Intellectual Property Rights					47
		25.1		Conduct of Claims			47
		25.2		Intellectual Property Rights granted to the Principal			47
		25.3		Survival of rights			47
26		Damage to persons and property and indemnities					48
		26.1		Protection of people and property			48
		26.2		Loss or damage to the Equipment			48
		26.3		Indemnity from the Supplier			48
		26.4		Urgent protection			49
27		Limit on liability					49
28		Insurances					50
		28.1		Insurances to be effected			50
		28.2		General insurance requirements			50
		28.3		Excesses			50

Oxygen Plant Supply Contract     Contents 3

Contents

		28.4		Effect of insurance			50
29		Force Majeure					50
30		Default and termination					51
		30.1		Supplier Event of Default			51
		30.2		Supplier Default Notice			51
		30.3		Rights of the Principal			51
		30.4		Principal Event of Default			51
		30.5		Principal Default Notice			51
		30.6		Rights of the Supplier			52
		30.7		Insolvency Event			52
		30.8		Rights of Principal following Termination			52
		30.9		Termination payments			53
		30.10		Return of Property			53
31		Notification of Claims					53
		31.1		Notices of other claims			53
		31.2		Prescribed notices			54
		31.3		Continuing events			54
32		Dispute resolution					54
		32.1		Dispute			54
		32.2		Negotiation			54
		32.3		Arbitration			55
		32.4		Litigation			55
		32.5		Continuity			55
		32.6		Injunctive or urgent relief			55
		32.7		Expert determination			55
		32.8		Selection of expert			56
		32.9		Rules of expert determination			56
		32.10		Expert finding			57
		32.11		Costs of expert determination			57
33		General					57
		33.1		Costs and expenses			57
		33.2		Further assurances			57
		33.3		Notices			57
		33.4		Governing law and jurisdiction			58
		33.5		Prohibition and enforceability			58
		33.6		Waivers			59
		33.7		Entire agreement			59
		33.8		Variation to this Contract			59
		33.9		Counterparts			59
		33.10		To the extent not excluded by Laws			59
		33.11		Attorneys			59
		33.12		Survival of obligations			59

Oxygen Plant Supply Contract     Contents 4

General Conditions

		Annexure C — General Conditions
1		Definitions and interpretation
1.1		Definitions
		The meanings of the terms used in this document are set out below.

Term		Meaning
As-Built Drawings		the drawings and other information to be created by the Supplier which details the manner in which the Equipment has been manufactured.
As For Construction Documents		the documents and other information to be created by the Supplier which details the manner in which the Equipment is to be installed.
Authorisation		any approval, authorisation, code of conduct, government policy, consent, exemption, filing, licence, notarisation, permit, registration, waiver by any Government Agency, and includes any renewal of, or variation to, any of them
Bank Guarantee		bank guarantees to be provided in the relevant form set out in Annexure F and issued by a bank or other financial institution approved by the Beneficiary of the guarantee.
Business Day		a day on which trading banks are open for business in ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇, excluding a Saturday, Sunday or public holiday.
Certification Role		the responsibility of the Principal’s Representative to determine:
		1   whether Delivery or Delivery Completion has been achieved in accordance with clause 18.1;
		2    whether Performance Test Acceptance has been achieved in accordance with clause 19.5; and
		3    whether Final Completion has been achieved in accordance with clause 18.2
Change of Law		either:
		1    a change in legislation, ordinance, regulation, by-law, order or proclamation; or

Oxygen Plant Supply Contract     page 5

		2		the introduction of new legislation, ordinance, regulation, by-law, order or proclamation,
		which:
		3		comes into effect after the Commencement Date; and
		4		in case of legislation, had not been:
				•    foreshadowed;
				•    introduced; or
				•    tabled as ▇▇▇▇ in the parliament in which it was made,
				prior to the Commencement Date; and
		5		in all cases, could not have been foreseen by a Relevant Supplier operating in Europe prior to the Commencement Date
Claim		includes any claim by the Supplier, any Government Agency or any other third party against the Principal or the Principal’s Representative (including the employees, agents, consultants and contractors of the Principal or Principal’s Representative) for any:
		1		Loss;
		2		increase in the Contract Price or for payment of money (including damages); or
		3		extension of time to the Date for Delivery:
		under, arising out of, or in connection with:
		1		this Contract;
		2		the Works; or
		3		the Equipment,
		including any such claim under contract, in equity, under statute, in tort (including for negligence) or otherwise (including negligent misrepresentations or for restitution)
Commencement Date		the date this Contract has been executed by both parties.
Commissioning Manual		the manual to be prepared by the Supplier in accordance with this Contract for the Commissioning of the Equipment
Commissioning		commissioning and testing of the Equipment (following the issue of an Installation Completion Certificate) by the Supplier and the Principal in accordance with the Commissioning Manual and any installation and commissioning management services agreement entered between the parties.
Conditions Precedent		the conditions set out in clause 2.1
Condition Precedent Date		the date set out in item 2 of Annexure A.
Confidential Information		in relation to any party to this Contract, information relating to a party’s business, computer systems or affairs and includes any:

Oxygen Plant Supply Contract     page 6

		1		trade secrets, know-how, scientific and technical information;
		2		product, customer, marketing or pricing information;
		3		information in relation to this Contract; and
		4		any other information which a party notifies the other is confidential, or which the other party knows or ought to know is confidential
Contract		The Instrument of Agreement and the documents set out in clause 4 of the Formal Instrument of Agreement
Contract Price		Refer item 1 of Annexure A
Critical Documents		any documents referred to in the Technical Specification as being critical.
Date for Delivery		Refer item 3 of Annexure A.
Defect		means:
		1		any error, deficiency, omission, non-conformity, fault, failure, malfunction, irregularity or other mechanical defect in the Equipment; or
		2		any aspect of the Equipment which is not in accordance with the Technical Specification.
		but excluding fair wear and tear and failure to install, commission ,operate or maintain the Equipment in accordance with the Installation Manual, the Commissioning Manual, or the Operation and Maintenance Manual or as otherwise specified in the Technical Specification.
Delay Event		1		a Principal-caused Delay;
		2		a Variation which is the subject of a Variation Order in accordance with clause 12.1 of Annexure C, other than a Variation requested by the Supplier under clause 12.6 of Annexure C;
		3		a Change of Law;
		4		an industrial dispute which results in a labour stoppage that:
				•    has not arisen by reason of, or in connection with, events in any way connected with the Works or the Supplier; and
				•    could not have been foreseen by a Relevant Supplier in the jurisdiction in which the Works are being performed having carried out all necessary investigations; and
		5		a Force Majeure Event;
		but excluding any events in item 1 to 5 which would not have occurred but for:
		6		a breach of this Contract by, or the negligence or recklessness of, the Supplier or its Subcontractors;
		7		the lack of legal capacity, or corporate powers, of the Supplier; or
		the Principal or Principal’s Representative acting in accordance with this Contract including any termination of the Contract in accordance with its terms.
Delay Liquidated Damages		the liquidated damages payable under clause 14.4

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Delay Liquidated Damages Rate		has the meaning set out in item 19 of Annexure A and may only be adjusted in accordance with clause 14.4
Delegate of Principal’s Representative		has the meaning given in clause 9.1(c)
Delivery		that stage in the execution of the Works when:
		1    the Supplier has delivered any component or item of Equipment to the Delivery Point in accordance with FAS Incoterms (2000); and
		2    such component or item of Equipment has been packed and prepared for shipping in accordance with the requirements set out in the Technical Specification.
Delivery Completion		1    that stage in the execution of the Works when Delivery of all Equipment to the Delivery Point has taken place in accordance with FAS Incoterms (2000).
Delivery Claim		has the meaning set out in clause 18.1(a)
Delivery Completion Date		the date of Delivery (expressed as a number of weeks from the Commencement Date) of all items of Equipment in accordance with FAS Incoterms (2000) as required in Annexure B.
Delivery Point		the location(s) prescribed by the Supplier (based on FAS Incoterms (2000)).
Delivery Tests		any of those tests identified as such and set out in the Technical Specification.
Dispute		any dispute, difference or disagreement arising between the parties relating to the interpretation of this Contract or any matter arising out of, or in connection with, this Contract, the Works, or the Equipment
Dispute Notice		has the meaning given to it in clause 32.2(b)
Documents		the plans, drawings, specifications, engineering data, manuals and any other documents required by this Contract and created (or, where the context requires, to be created) by the Supplier for the performance of the Works including the Critical Documents
Equipment		the Air Separation Unit / 1700 TPD Oxygen Plant and related items of plant and equipment to be engineered, procured, and supplied in accordance with this Contract and described in more detail in the Technical Specification or the materials, equipment and machinery forming part, or to form part, of the Air Separation Unit / 1700 TPD Oxygen Plant and related items of plant and equipment (as the context requires)
Excluded Loss		any Loss for:
		1    business interruption;

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		2    loss of actual or anticipated profit or revenue; or
		3    consequential or purely economic loss, special or contingent damages of any kind.
Final Completion		has the meaning set out in clause 18.2(a)
Final Completion Certificate		a certificate identified as such and issued by the Principal’s Representative under clause 18.2(a) certifying that Final Completion has been achieved
Final Completion Date		1    the date certified by the Principal’s Representative in a Final Completion Certificate issued under clause 18.2(a) to be the date on which Final Completion was achieved; or
		2    where another date is determined under clause 32 as the date on which Final Completion was achieved, that other date
Force Majeure		means (and is limited to) the following specific events or circumstances:
		1    earthquake, flood or other natural catastrophe;
		2    strike or lockout;
		3    embargo;
		4    civil disturbance, riot or armed conflict;
		5    rebellion or sabotage;
		6    curtailment, rationing or allocation of normal sources of supply of labour, materials, transportation, energy or utilities;
		7    sufferance of or voluntary compliance with act of government and government regulations (whether or not valid);
		8    fire or explosion, including radioactive or toxic explosion; and
		9    war, insurrection, riot or acts of terrorism;
		but only where those events or circumstances:
		10    are not reasonably foreseeable by the Relevant Supplier;
		11    are beyond the reasonable control of the Supplier; and
		12    are such that, even with the exercise of Good Engineering and Procurement Practices, the Supplier would not be able to prevent or overcome.
Good Engineering and		practices followed when work is undertaken:
Procurement Practices
		1    in a sound and workmanlike manner;
		2    with due care and skill;
		3    with due expedition and without unnecessary or unreasonable delays; and
		4    to the standard agreed in the Technical Specification.
Government Agency		any government or governmental, semi-governmental, judicial, quasi-judicial or administrative entity, agency or authority having jurisdiction over any part of, or in connection with, the Works, or the Equipment
Industrial Action		a strike, lockout, demarcation or industrial dispute which affects any

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		Manufacturing Facility
Insolvency Event		where:
		1    a party informs the other party or the party’s creditors it is insolvent or unable to pay its debts as they fall due or the other party reasonably suspects that the party is insolvent or unable to pay its debts as they fall due;
		2    a party enters into a composition or arrangement with its creditors or calls a meeting of creditors to enter into a composition or arrangement;
		3    a mortgagee seeks to exercise a right of possession or control over the whole or part of a party’s property;
		4    a party takes or has instituted against it an action or proceedings whether voluntary or compulsory with the object of, or which may result in, the winding-up of a party;
		5    a party has a winding-up order made against it or passes a resolution for winding-up;
		6    a party goes into liquidation;
		7    any writ of execution, garnishee order, mareva injunction or similar order, attachment, distress or other process is made, levied or issued against or in relation to any asset of a party; or
		8    an act is done or an event occurs which, under the laws from time to time of a country having jurisdiction in relation to a party, has an analogous or similar effect to any of the events in paragraphs 1 to 7;
Instrument of Agreement		the document identified as such which, when entered into by the Principal and the Supplier, forms this Contract
Installation Completion Certificate		a certificate identified as such and issued by the Installation and Commissioning Manager, as part of the services to be provided under an installation and commissioning management services agreement, certifying that the Equipment:
		1    has been installed in accordance with the Installation Manual and any other instructions given by the Installation and Commissioning Manager; and
		2    is ready for safe Commissioning,
		and which attaches the As-Built Drawings.
Installation and Commissioning Manager		the representative of the Supplier who will provide the Installation and Commissioning Management Services at the Site
Installation and Commissioning Management Services		services to be provided by the Supplier under an installation and commissioning management services agreement
Installation Manuals		the manuals to be prepared by the Supplier in accordance with this Contract for the installation of the Equipment which must contain all necessary information to enable an experienced contractor to install the Equipment
Intellectual Property Rights		1    inventions, discoveries and novel designs, whether or not registered or registrable as patents or designs, including developments or improvements of equipment, products, technology, processes, methods or techniques;
		2    copyright (including future copyright) throughout the world in all literary

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		works, artistic works, computer software, and any other work or subject matter in which copyright subsists and may in the future subsist;
		3    Confidential Information (only to the extent comprising any of items 1, 2, and 4 of this definition)i; and
		4    trade and service marks (whether registered or unregistered)
Intended Purpose		the intended purpose of the Equipment as stated in this Contract and the Technical Specification.
Interest Rate		the rate set out in item 20 of Annexure A
Key Personnel		each of the Supplier’s personnel identified in item 25 of Annexure A, and Key Person means each of them.
Law		includes, from time to time, all applicable:
		1    Acts, ordinances, regulations, by-laws, orders, awards and proclamations of any jurisdiction in which the Works are undertaken;
		2    Authorisations;
		3    principles of law or equity established by decisions of courts of any jurisdiction in which the Works are undertaken;
		4    standards, codes and guidelines which have the force of law of any jurisdiction in which the Works are undertaken; and
		5    fees, rates, taxes, levies and charges payable in respect of those things referred to in paragraphs (1), (2), (3) and (4) of this definition,
		whether or not existing at the Commencement Date, as they apply to the performance of this Contract or the Works.
Loss		includes any loss, cost, expense, damage or liability (including any fine or penalty) whether , present or future, fixed or unascertained, actual or contingent and whether arising under Contract, in equity, under statute (to the maximum extent possible), in tort (including for negligence) or otherwise (including negligent misrepresentation or in restitution), but excluding Excluded Loss
Manufacturing Facilities		any places of manufacture or assembly for any part of the Equipment including any Subcontractors’ places of manufacture or assembly
Milestone Event		each event identified as such and set out in Annexure B.
Milestone Amount		the part of the Contract Price that is attributable to and payable in respect of an applicable Milestone Event as set out in clause Annexure B.
Monthly Progress Meeting		the monthly meeting between the Principal and the Supplier pursuant to clause 15.5.
Operation and Maintenance Manual		the manual(s) to be prepared by the Supplier in accordance with this Contract for the operation, maintenance and repair of the Equipment

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Parent Company Guarantee		a guarantee to be provided by the Parent Company under clause 3 of Annexure C in the form set out in Annexure F or as otherwise acceptable to the Principal
Parent Company		the entity set out in item 5 of Annexure A
Payment Guarantee		means the Bank Guarantee(s) provided by the Principal as set out in clause 5.2(a) which term also includes any replacement or additional Bank Guarantee provided by the Principal.
Performance Guarantee Payments		the applicable amounts payable pursuant to clause 19.7 or 19.8 and Annexure G.
Performance Guarantees		each of the guaranteed performance levels for pressure, purity, flowrate and power consumption as set out in the Technical Specification.
Performance Security		means the Bank Guarantee(s) provided by the Supplier as set out in clause 5.1(a) which term also includes any replacement or additional Bank Guarantee provided by the Supplier.
Performance Shortfall		in respect of each Performance Guarantee, the amount by which the performance level achieved at the Performance Tests fails to meet the applicable Performance Guarantee
Performance Tests		each of the tests identified as such and set out in Appendix J of the Technical Specification to be performed by the Supplier and the Principal to ensure the Equipment achieves the Performance Guarantees.
Performance Test Acceptance		has the meaning set out in clause 19.5
Performance Test Acceptance Date		1    the date certified by the Principal’s Representative in a Performance Test Acceptance Certificate issued under clause 19.5 to be the date on which Performance Test Acceptance was achieved; or
		2    where another date is determined under clause 32 as the date on which Performance Test Acceptance was achieved, that other date
Performance Test Acceptance Certificate		a certificate identified as such and issued by the Principal’s Representative under clause 19.5 certifying that Performance Test Acceptance has been achieved
Performance Test Procedure		means the performance testing protocol established under the Technical Specification.
Principal Authorisations		each of the documents referred to in item 4 of Annexure A
Principal-caused Delay		1    delay or disruption caused by:

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		•    the Principal; or
		•    the Principal’s Representative,
		but does not include any delay or disruption caused by the Principal or the Principal’s Representative acting in accordance with this Contract;
		2    an act of prevention of the Principal or Principal’s Representative including a breach by the Principal of any of its obligations under this Contract, but does not include any delay or disruption caused by the Principal or the Principal’s Representative acting in accordance with this Contract;
		3    suspension of the Works by the Principal or the Principal’s Representative under clause 17.1(a)(1)
Principal Event of Default		where the Principal fails (i) to pay an amount of money due to the Supplier in accordance with this Contract and pursuant to an invoice within 20 Business Days of the date that amount became due and payable and that amount is not disputed by the Principal or (ii) to provide a new or replacement Bank Guarantee.
Principal’s Representative		has the meaning set out in clause 9.1
Process Data Sheet		is a Principal supplied document and is the process design data tabulated in Annexure H.
Project Program		the program of Delivery times referred to in Annexure B and the Project Schedule in the Technical Specification, or if reviewed by the Principal in accordance with clause 15.3(f), the latest Updated Project Program
Quality Management System		The Supplier’s quality system shall generally conform to ISO9001:2000 and shall address the requirements to achieve full conformance of product to the Contract.
Relevant Supplier		an internationally experienced manufacturer of air separation plants, of the highest skill and quality, with particular experience in component manufacture and supply of parts for an oxygen plant.
Site		means the Principle’s site set out in item 6 of Annexure A.
Spare Parts List		the list identified as such and set out in the Technical Specification
Subcontractor		includes any subcontractor, consultant or supplier engaged by the Supplier in connection with the Works
Sunset Date		6 months after receipt by the Supplier of a notice to proceed under clause 19.3(a).
Supplier Default Notice		has the meaning given to it in clause 30.1

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Supplier Event of Default		where:
		1    the Supplier fails to comply with the Technical Specification;
		2    the Supplier fails to reinstate damage or loss to the Works or the Equipment required to be reinstated by it under this Contract as required under clauses 26.2 or 20.5 and in any case with due expedition and without delay;
		3    the Supplier fails to effect or maintain insurance (or provide evidence of insurance) required to be effected and maintained by the Supplier under this Contract;
		4    the Supplier suspends the Works in breach of clause 17.2;
		5    the Security is not lodged and maintained in accordance with clause 5.1;
		6    the Supplier is still not able to achieve Delivery Completion having become liable to pay the total Delay Liquidated Damages to 100% of the cap set out in item 16 of Annexure A; or
		7    the Supplier commits any other material breach of this Contract.
Supplier’s Representative		has the meaning set out in clause 9.5(a)
Table of Key Dates for Documentation		the table identified as such and set out in the Technical Specification.
Tax		any income, land, indirect and other taxes, levies, imposts, deductions, charges, duties, compulsory loans and withholdings, including financial institutions duty, debits tax or other taxes whether incurred by, payable by return or passed on to another person and includes any interest, penalties, charges, fees, fines or other amounts imposed in respect of any of the above, but does not include GST or stamp duty
Technical Specification		Means the document set out in Annexure D.
Training Manuals		the manuals to be prepared by the Supplier in accordance with this Contract for the training of the Principal’s personnel to operate, maintain and repair the Equipment
Updated Project Program		has the meaning given to it in clause 15.3(b)
Variation		any one or more of the following:
		1    an increase, decrease or omission of any part of the Works;
		2    any change in the character or quality of any Equipment or any part of the Works; or
		3    any change in the method, sequence or timing of the Works,
		but does not include a direction by the Principal or the Principal’s Representative to perform the Works in accordance with this Contract
Variation Order		a written direction from the Principal identified as such directing the Supplier to carry out a Variation

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Variation Quotation		has the meaning given to it in clause 13.1(c)
Warranty Period		has the meaning given in clause 20.1 including as that period is extended pursuant to clause 20.2(e)
Workplace Health and		all workplace, health and safety related:
Safety Legislation
		1    legislation;
		2    codes of practice; and
		3    standards,
		where any part of the Works is being performed
Works		all matters or things which the Supplier is required to do to engineer, design, procure and supply the Equipment in accordance with all the requirements of this Contract including:
		1    the Technical Specification;
		2    Variations which are the subject of a Variation Order; and
		3    the Performance Guarantees.

1.2		Interpretation
(a)		In this Contract, unless expressly stated otherwise:

	(1)		words importing the singular include the plural and vice versa;
	(2)		words importing a gender include any gender;
	(3)		other parts of speech and grammatical forms of a word or phrase defined in this Contract have a corresponding meaning;
	(4)		an expression importing a natural person includes any company, partnership, joint venture, association, corporation or other body corporate and any Government Agency;
	(5)		a reference to any thing (including any right) includes any part of that thing, but nothing in this clause 1.2(a)(5) implies that performance of part of an obligation constitutes performance of the entire obligation;
	(6)		a reference to a part, clause, party, annexure, exhibit or schedule is a reference to a part and clause of, and a party, annexure, exhibit and schedule to, this Contract and a reference to this Contract includes any annexure, exhibit and schedule;
	(7)		a reference to a statute, regulation, proclamation, ordinance or by-law includes all statutes, regulations, proclamations, ordinances or by-laws amending, consolidating or replacing it, and a reference to a statute includes all regulations, proclamations, ordinances and by-laws issued under that statute;
	(8)		a reference to a document includes all amendments or supplements to, or replacements or novations of, that document;
	(9)		a reference to a party to a document includes that party’s successors and permitted assigns and that party’s employees, agents, consultants and contractors;
	(10)		a reference to an asset includes property of any nature, including a business, right, revenue and benefit;

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	(11)		a reference to liquidation includes official management, appointment of an administrator, compromise, arrangement, merger, amalgamation, reconstruction, winding-up, dissolution, assignment for the benefit of creditors, scheme, composition or arrangement with creditors, insolvency, bankruptcy, or any similar procedure or, where applicable, changes in the constitution of any partnership or person, or death;
	(12)		a reference to a body, other than a party to this Contract (including an institute, association or authority), whether statutory or not:

	(A)		which ceases to exist; or
	(B)		whose powers or functions are transferred to another body,
	is a reference to the body which replaces it or substantially succeeds to its powers or functions;

	(13)		a reference to the Principal’s Representative will also be a reference to any Delegate of Principal’s Representative to the extent that a delegate is delegated functions of the Principal’s Representative; and
	(14)		a reference to this Contract is a reference to these terms and conditions together with all schedules, annexures and attachments thereto.

(b)		In this Contract, headings and boldings are for convenience only and do not affect the interpretation of this Contract.
(c)		If the day on or before which any act, matter or thing must be done under this Contract is not a Business Day, that act, matter or thing must be done on the next Business Day.
(d)		Specifying anything in this Contract after the words “includes”, “including” or “for example” or similar expressions does not limit what else is included unless there is express wording to the contrary.
(e)		No provision of this Contract will be construed adversely to a party solely on the ground that the party was responsible for the preparation of this Contract or that provision.

2		Conditions Precedent
2.1		The Conditions Precedent are:
(a)		the Supplier provides to the Principal, in a form acceptable to the Principal, evidence of the insurances required to be effected by the Supplier under clause 28 of Annexure D; and
(b)		the Supplier provides to the Principal the Performance Security in accordance with clause 5 of Annexure D.
(c)		the Parent Company executes the Parent Company Guarantee in favour of the Principal;
(d)		the Supplier provides to the Principal a legal opinion, in a form acceptable to the Principal, with respect to the Parent Company entering into the Parent Company Guarantee and that the Parent Company Guarantee is enforceable in accordance with its terms against the Parent Company in the jurisdiction in which the Parent Company is incorporated.
2.2		Conditions precedent to satisfy or waive
(a)		The Supplier must use best endeavours to satisfy all of the Conditions Precedent prior to the Condition Precedent Date.
(b)		The Conditions Precedent are solely for the benefit of, and may only be relied upon by, the Principal.

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2.3

Non-satisfaction of the conditions precedent

		Subject to clause 33.12, if the Conditions Precedent are not:
(a)		satisfied; or
(b)		waived in writing by the Principal,
(c)		prior to the Condition Precedent Date, the Principal may elect to treat this Contract as being at an end and recover from the Supplier all amounts paid under the Contract except for such other costs reasonably and necessarily incurred by the Supplier prior to the date of termination in the expectation of completing the Works and not included in any other payment by the Principal to the Supplier.
3		Parent company guarantee
		The Supplier must provide a Parent Company Guarantee executed by the Parent Company for the performance of the obligations of the Supplier under this Contract.
4		Performance and payment
4.1		Performance of Works
		The Supplier must perform and complete the Works in accordance with:
(a)		this Contract;
(b)		Good Engineering and Procurement Practices; and
(c)		all Laws.
4.2		Payment of Contract Price
		The Principal must pay the Supplier the Contract Price (which is in US dollars) in US dollars in accordance with Annexure B and this Contract.
4.3		Interest on overdue payments
		If any money due to either party remains unpaid after the date on which it should have been paid, interest at the Interest Rate is payable on the money from the day after it should have been paid up to and including the date on which the money is paid.
4.4		Set Off
		As a pre-condition to the drawing on any Bank Guarantee, the Principal may deduct or set-off from payments to the Supplier or the Performance Security any amounts:
(a)		for which the Supplier must reimburse the Principal;
(b)		which the Principal pays on the Supplier’s behalf; or
(c)		which the Supplier owes to the Principal.
4.5		No adjustment to Contract Price
		The Supplier accepts and acknowledges that:
(a)		the Contract Price represents its full and complete payment for:

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	(1)		all matters and things necessary for the performance and completion of the Works in accordance with this Contract; and
	(2)		all of the Supplier’s obligations under this Contract; and

(b)

the Supplier is not entitled to any increase in the Contract Price except:

	(1)		in accordance with clause 12 as a result of a Variation which is the subject of a Variation Order; or
	(2)		for cost reimbursable items as set out in Annexure B.

5

Securities

5.1

Supplier Performance Security

(a)		The Supplier shall provide to the Principal such Bank Guarantees as are required pursuant to Annexure B. Bank Guarantees will only be released in accordance with clause 5.4.
(b)		The Supplier must ensure that the Performance Security remains valid and enforceable until the date of its return in accordance with this Contract.
(c)		The Performance Security must not have any provision inconsistent with the rights of the Principal incorporated in this Contract.
5.2		Principal Payment Guarantee
(a)		The Principal shall provide to the Supplier such Bank Guarantees as are required pursuant to Annexure B. Bank Guarantees will only be released in accordance with clause 5.4.
(b)		The Principal must ensure that the Payment Guarantee remains valid and enforceable until the date of its return in accordance with this Contract.
(c)		The Payment Guarantee must not have any provision inconsistent with the rights of the Supplier incorporated in this Contract.
5.3		Replacement Securities
(a)		Without limiting clause 5.4, the parties shall, not less than 20 Business Days prior to the expiry of the Payment Security or Performance Security:

	(1)		Arrange for the replacement of the relevant Bank Guarantee in accordance with the requirements for security set out in Annexure B;
	(2)		Notify the other party of the replacement Bank Guarantee and provide such reasonable assistance as necessary to facilitate the exchange of guarantees from the party’s respective financial institutions.

(b)		For the removal of doubt, a replacement or additional Payment Security or Performance Security can only be drawn upon by a party to this Contract provided the necessary Milestone Event in clause 2 of Annexure B has been reached and the related Milestone Payment has been made (with the exception of amounts in dispute).
(c)		In addition to any other right of the parties to draw on a Bank Guarantee, a party may make a drawing on a Bank Guarantee if the obligation to provide a replacement Bank Guarantee pursuant to this clause 5.3 is not satisfied by 15 Business Days prior to the expiry of the Bank Guarantee, in which event that party may draw the full face value of the Bank Guarantee and hold that amount as Payment Security or Performance Security, in accordance with this Contract.

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5.4		Release of Performance Security
		A party must release to the other party any and all Bank Guarantees within 20 Business Days following the Final Completion Date after deduction of any withholding or set-off that party is entitled to make pursuant to this Contract (in accordance with clause 4.4), provided however that if there are disputes outstanding with respect to the Contract at such date, then the date for release by the party of the Payment Security or Performance Security will be 5 Business Days after the date on which the last of those disputes to be resolved is resolved to the reasonable satisfaction of that party.
5.5		Conversion of Performance Security
(a)		Subject to the terms of the Payment Security or Performance Security (“Security”) and a party’s right to demand, receive or use the proceeds of that Security pursuant to the terms of the Contract, a party may demand, receive and use the proceeds of the Security whenever that party asserts a right to the payment of money by the other party under, arising out of or in connection with this Contract (including liquidated damages) or otherwise at law relating to the Works or the Equipment.
(b)		Each party covenants with the other that, subject to complying with the terms of the Bank Guarantee, a party will not institute any proceedings, or exercise any right or take any steps to injunct or otherwise restrain:

	(1)		the financial institution that issued the Security from paying the other party pursuant to the Security; or
	(2)		that party from taking any steps for the purpose of making a demand under any Security or receiving payment under the Security, or otherwise exercising its rights under the Security; or
	(3)		that Party using the money received under the Security,
	even where the other party disputes the first party’s right to payment (including where dispute resolution proceedings have been commenced under clause 32).

(c)

Where a party has had recourse to a Security and it is subsequently found that the amounts drawn down were not payable by the other party:

	(1)		subject to clause 5.5(c)(2), the party who drew on the Security must repay the amount not payable to the other party within 30 Business Days with interest at the Interest Rate;
	(2)		the party may, prior to repayment, set-off any such amounts referred to in clause 5.5(c)(1) against any Loss that party has suffered; and
	(3)		repayment of such amounts and interest referred to in clause 5.5(c)(1) will be the sole remedy of the other party against the party that incorrectly drew on the guarantee with respect to any such wrongful recourse to the Security.

6		Warranties
(a)		The Supplier acknowledges and agrees that:

	(1)		the Principal is relying on the Supplier’s skill, expertise and judgment for the performance and completion of the Works in accordance with this Contract;
	(2)		the Process Data Sheet (which is a Principal supplied document):

	(A)		is not a design (and that the development and completion of the Technical Specification and a detailed design for the Equipment forms part of the Works and is the sole responsibility of the Supplier); and
	(B)		does not set out a scope of the Works;

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(b)

The Supplier warrants to the Principal that the Supplier:

	(1)		will, at all times, be suitably qualified and experienced, and will exercise the skill, care and diligence of a Relevant Supplier in the performance and completion of the Works;
	(2)		will engage and retain Subcontractors who are suitably qualified and experienced and will coordinate the activities of the Subcontractors so that the Works are performed and completed in a proper and workmanlike manner;
	(3)		has examined and carefully checked the Process Data Sheet (jointly with the Principal) and confirms that it is accurate, suitable, appropriate and adequate for the Intended Purpose; and will develop and complete the Documents in accordance with the Technical Specification:

	(A)		so that the Documents are accurate, suitable, appropriate and adequate for the Intended Purpose; and
	(B)		to comply with all the requirements of this Contract (including Good Engineering and Procurement Practices);

provided that the Supplier is not responsible for inaccuracies in data contained in the Process Data Sheet supplied by the Principal.

(c)

The Supplier warrants as follows in relation to the Equipment and each part of the Equipment:

	(1)		the Equipment is manufactured to the highest standard of care, skill and diligence that would normally be expected of a reputable and competent organisation providing goods similar to the Equipment ;
	(2)		the Equipment is free of Defects;
	(3)		the Equipment complies with all relevant codes and standards set out in the Technical Specification and with best industry practices;
	(4)		the Equipment conforms to the requirements of this Contract including the Technical Specification; and
	(5)		the Equipment is new.

(d)

The Supplier warrants and must ensure that, unless otherwise provided in this Contract, the Supplier:

(1)

owns or is entitled to use (or will on creation own or be entitled to use) the Intellectual Property Rights in all Documents including the As-Built Drawings and Critical Documents and the Equipment; and

(2)

is entitled to licence to the Principal the Intellectual Property Rights in the Documents, As-Built Drawings, Critical Documents and the Equipment in accordance with clause 25.2.

(e)

The Supplier indemnifies and holds harmless the Principal against any Loss, action or Claim arising from:

	(1)		any infringement or alleged infringement of Intellectual Property Rights owned by a third person in respect of any of the Documents, As-Built Drawings, Critical Documents or the Equipment;
	(2)		any breach of the warranty set out in clause 6(d); and
	(3)		the conduct of any infringement claim by the Supplier under clauses 6(d) or 6(e).

This indemnity is conditioned on the Principal agreeing (i) to notify the Supplier forthwith of any alleged infringement or breach (ii) not to compromise or settle any claim for which it is indemnified under this clause and (iii) giving the Supplier the conduct of any such claim, provided the Supplier acts as a prudent defendant in the conduct of that claim.

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(f)		The indemnity in clause 6(e) shall not exceed the total aggregate of the amount set out in item 18 of Annexure A.
(g)		Each party represents and warrants that:

	(1)		it is a company duly incorporated and validly existing under the laws of its place of incorporation;
	(2)		it has taken all necessary action to authorise the execution, delivery and performance of this Contract, in accordance with its terms;
	(3)		it has power to enter into and perform its obligations under this Contract and to carry out the transactions contemplated by this Contract;
	(4)		its obligations under this Contract are valid and binding and are enforceable against it in accordance with respective terms subject to any necessary stamping and registration, the availability of equitable remedies and laws relating to the enforcement of creditor’s rights;
	(5)		it has the corporate power to own its own assets and to carry on its business as it is now being conducted;
	(6)		the execution, delivery and performance of this Contract and the transactions under it do not:

	(A)		breach its constitution or other constituent documents; or
	(B)		breach any Law or decree of any court or official directive which is binding on it;
	(C)		violate any other document or agreement to which it is expressed to be a party or which is binding on it or any of its assets; or
	(D)		cause a limitation on its powers or the powers of its directors or other officers to be exceeded; and

(7)

no litigation, arbitration, tax claim, dispute or administrative or other proceeding (which has not been disclosed to the Principal in writing prior to the Commencement Date) has been commenced, is pending or, to its knowledge, threatened in writing against it which is likely to have an adverse effect upon it or its ability to perform its financial or other obligations under this Contract.

(h)

Each of the representations and warranties given in clause 6(g):

	(1)		survive the execution of this Contract; and
	(2)		are regarded as repeated on the Commencement Date and the date of each payment of amounts due under each tax invoice, with respect to the facts and circumstances then subsisting.

(i)		Each party acknowledges that the other party is relying on the representations and warranties made to it in connection with this Contract.
(j)		All of Supplier’s warranties in relation to the Equipment are expressly set out in this Contract and are in lieu of any warranty of merchantability or of fitness for a particular purpose. To the extent permitted by law, the warranties in this Contract are in lieu of all express or implied warranties of any kind which are imposed by statute or any Laws.
7		Documents
7.1		Supply of documents by Principal

(a)

All documents supplied by the Principal to the Supplier:

(1)

remain the property of the Principal; and

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(2)

must be returned by the Supplier to the Principal upon the Principal’s demand.

(b)

Where any document to be returned to the Principal under clause 7.1(a) is required by the Supplier to perform the Supplier’s obligations under this Contract, the Supplier:

	(1)		may retain a copy of that document, following the document’s return to the Principal, only for as long as the copy is so required; and
	(2)		must notify the Principal in writing specifying any copies that the Supplier retains pursuant to clause 7.1(b)(1).

(c)

All documents supplied by the Principal to the Supplier must not, without the prior written approval of the Principal, be used, copied or reproduced for any purpose except for the performance of the Works.

7.2

Supply of documents by the Supplier

(a)

The Supplier must:

	(1)		to the extent that documents (including Documents) which the Supplier is required to provide under this Contract have not already been completed and included in the Technical Specification, develop and complete or cause the development and completion of those documents, in accordance with this Contract and Good Engineering and Procurement Practices; and
	(2)		not make, cause or permit to be made any changes or amendments to the documents which have been approved by, the Principal’s Representative under clause 7.4 without the prior written consent of the Principal, such consent not to be unreasonably withheld or delayed.

(b)

All documents supplied by the Supplier, including Critical Documents, become the property of the Principal on receipt by the Supplier of the relevant Milestone Payment.

(c)

The Principal must ensure that documents supplied by the Supplier are only used by the Principal or the Principal’s Representative, and by any person acquiring those documents through the Principal or the Principal’s Representative, for the purposes of or in connection with:

	(1)		facilitating or completing the design, construction and commissioning of the Equipment;
	(2)		performing the Works; or
	(3)		the operation and maintenance, upgrade, augmentation, sale or re-financing of the Equipment.

7.3

Review documents (other than Critical Documents) provided by the Supplier

(a)

To the extent that:

	(1)		the Supplier is required to prepare and deliver documents to the Principal under this Contract (including Documents but excluding Critical Documents); and
	(2)		those documents have not already been completed and included in the Technical Specification,

the Supplier must submit all such documents for review by the Principal’s Representative:

	(3)		as each such document is completed;
	(4)		in sufficient time to enable Delivery or Delivery Completion to be achieved by the Date for Delivery (subject always to prompt review by the Principal).

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7.4		Approval of Critical Documents
(a)		The Supplier must submit all Critical Documents for written approval by the Principal’s Representative:

	(1)		as each Critical Document is completed; and
	(2)		in sufficient time to enable Delivery or Delivery Completion to be achieved by the Date for Delivery; and
	(3)		where the Table of Key Dates for Documentation sets out a date for submission, in no event later than that date.

(b)

The Principal’s Representative shall notify its approval or non-approval (with reasons for non-approval) within 5 Business Days of receiving any Critical Document pursuant to clause 7.4(a).

(1)

If the Principal’s Representative notifies the Supplier of its non-approval within the period stated in clause 7.4(a) the Principal’s Representative and the Supplier must meet to discuss the respect in which the Critical Document does not comply and any amendments it may reasonably require;

(A)

the Principal’s Representative may direct the Supplier to amend the Critical Document.

	(2)		The Supplier must promptly submit the agreed amendments to the Critical Document to the Principal’s Representative for written approval in accordance with clause 7.4(a) and the procedure under this clause 7.4 applies to the amended Critical Document.
	(3)		If the Supplier disagrees with an amendment directed by the Principal’s Representative pursuant to clause 7.4(b)(1)(A), the Supplier may:

	(A)		refer the matter to dispute resolution in accordance with clause 32; and
	(B)		proceed with the Works in accordance with the Critical Documents that the Principal’s Representative has advised do not comply with this Contract.

(4)

Where the Supplier proceeds with the Works in accordance with clause 7.4(b)(3), the Supplier:

	(A)		with the exception of interfaces at battery limits, does so entirely at the Supplier’s own risk and will not be entitled to any Claim arising out of or in connection with having done so; and
	(B)		must, if it is subsequently determined under clause 32 that the Critical Documents do not comply with this Contract, immediately replace and rectify any Works that do not comply with this Contract and amend and resubmit the relevant Critical Documents at the Supplier’s sole cost and expense.

7.5		Availability of documents
(a)		While the Works are being performed, the: