Terms & Conditions

Moerk Water Solutions Asia-Pacific – Terms and Conditions

1. DEFINITIONS AND INTERPRETATION

1.1 In this Agreement, the following expressions have the following meanings:

Agreement means this document including the Schedules referred to in this Agreement, the Quote and Purchase Order;

Business Days means a day that is not a Saturday, Sunday or public holiday at the Site;

Change in Law means a change of a Legal Requirement, or interpretation of, a Legal Requirement including a change in any fee or charge payable in connection with any Legal Requirement that occurs on or after the Date of the Agreement;

Client means any individual, entity, corporation, trustee, trust, principal, agent or any other legal persons or entities for whom Moerk is providing Services under this Agreement;

Commissioning means the procedure used to check, adjust, inspect and test the Goods, which may be carried out by Moerk or the Client as set out in the Quote;

Confidential Information means any information, whether or not marked as confidential, received, held or developed by either party and which is not publicly available and relates in any manner to the operations of the disclosing party, their suppliers or clients including but not limited to each of the following:

(a) the disclosing parties intellectual property, including future and possible intellectual property;

(b) personnel, policies, business plans, product designs, marketing strategies, products, services, product and service development, finances, funding, pricing policies, or other transactions or affairs of either party;

(d) trade secrets, know-how, secret or confidential operations, processes, approaches or techniques developed by either party in the course of its business and operations; and

(e) any other information that may be commercially valuable to either party, its suppliers, or customers.

Consequential Loss means any Loss that does not arise naturally, including but not limited to the costs of replacing any real or personal property, special losses or any loss of profit, revenue, contract, business, business reputation, goodwill, opportunity, or facilities or services;

Currency means the system of money used in a country as specified in item 7 of Schedule 1;

Due Date means the date on which payment of the Fee is due by the Client to Moerk as outlined in the Quote or tax invoice as provided by Moerk;

Factory Acceptance Test means a quality assurance test involving a series of tests and inspections to ensure the Goods provided meet the specified requirements, design criteria and functionality as outlined and stated in the Quote provided by or on behalf of Moerk;

Fee means the fee stipulated in Item 6 of Schedule 1 as may be adjusted as provided for in this Agreement.

Force Majeure Event means industrial disputes of general application which are not particular to the affected Party or its personnel and which are not limited to the Site; industrial disputes of general application which are not particular to the affected Party or its personnel and which are not limited to the Site; cyclone, hurricane, flood, fire or earthquake; or war, revolution, embargo, riot, act of terrorism, or civil disturbance; that is beyond the control of the Party affected by that event and prevent the performed by that party of any of its obligations under this Agreement provided that the event or circumstance:

(a) is beyond the control of the Party affected by that event or circumstance;

(b) prevents the performance by the affected Party of any of its obligations under this Agreement; and

(c) cannot be prevented, overcome or remedied by the exercise by the affected Party of a reasonable standard of care and diligence or the expenditure of a reasonable sum of money.

Goods means any item, object or thing that is referred to or required for the Service as may be amended by way of Variation;

GST means goods and services tax or similar value added tax levied or imposed in Australia pursuant to GST laws;

Intellectual Property means all intellectual property rights of any kind, subsisting now or in the future including each of the following owned or used by or on behalf of the Parties and developed in connection with the business or operations of each party before, during or after the duration of this Agreement:

(a) know-how;

(b) trademarks, whether registered or unregistered;

(d) business names;

(e) Confidential Information;

(f) copyright, moral rights, inventions, patents, patent applications, designs; and

(g) any other Intellectual Property.

Interest Rate means the interest rate quoted in items 8 of Schedule 1;

Latent Condition means any subsurface geological conditions including but not limited to hydrogeological conditions at the Site including but not limited to any unknown pre-existing Site conditions that differ materially from those which should have been anticipated by Moerk acting reasonably;

Lead Time means the lead time as stated in the Quote;

Legal Requirements means any Australian statute, ordinance, regulation or by-law, orders, awards, commission (inlcuding the Fair Work Commission) and proclamations of the Commonwealth and the State of Western Australia and includes certificates, licences, consent, permits, approvals and requirements of organisations having jurisdiction applicable to the Services, standards, codes and guidelines applicable to the Services, including any fees or charges payable in connection;

Loss means any loss, damage, liability, interest, claim, expense, outgoing, penalty, fine or cost of any kind, whether direct or indirect;

Manual means the operation and maintenance manual provided by Moerk to the Client;

Moerk means Moerk Water Solutions Asia-Pacific Pty Ltd;

Parties means the Client and Moerk, and Party means either one of them;

Purchase Order means any purchase order or terms of trade provided to Moerk by the Client;

Quote means the same document as interchangeably referred to in a document headed as Scope of Work or Proposal which outlines the Services and other conditions relating to the Services;

RO Unit means the reverse osmosis unit;

Schedule 1 means the agreement details with that name forming part of this Agreement;

Services means the Services set out in Schedule 1 and any other services agreed upon by the Parties by way of Variation;

Site means the place made available to Moerk by the Client in connection with this Agreement;

Variation has the meaning set out in clause 5; and

WTP means water treatment plant.

1.2 In this Agreement:

(a) references to a party include as the context requires respective executors, administrators, successors and permitted assigns;

(b) references to a person include any other entity recognised by law and vice versa;

(d) references to legislation or legislative provisions include modifying, consolidating or replacement or re-enactment of legislation or legislative provisions;

(e) a reference to a document (including this Agreement) is to that document as varied, novated, ratified or replaced from time to time;

(f) references to parties, clauses, schedules, annexures, appendices or exhibits are references to parties, clauses, schedules, annexures, appendices or exhibits to this Agreement unless otherwise stated;

(g) words denoting the singular number include the plural and vice versa; and

(h) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of this document or any part of it.

2. AGREEMENT

2.1 A Purchase Order may be issued by the Client for the Services between Moerk and the Client during the Term.

2.2 The Agreement shall consist of the following documents:

(a) These terms and conditions and Schedule 1;

(b) The Quote;

(d) All other documents annexed to these general terms and conditions, except the Quote or any Purchase Order or specifically incorporated by reference.

2.3 If there is any conflict or inconsistency between the documents constituting the Agreement, the documents will rank in order of precedence in accordance with the order they appear in clause 2.2.

3. TERM

3.1 The Agreement will commence on the Commencement Date and will expire on the End Date unless terminated in accordance with clause 17 or the Parties agree in writing to extend the End Date to a later date.

4. ENGAGEMENT

4.1 Moerk agrees to undertake and provide the Services for the Client as agreed to and specified in Item 5 of Schedule 1 and as set out in this Agreement.

4.2 The Client agrees to pay the Fee to Moerk in accordance with Item 6 of Schedule 1 of this Agreement and accepts these terms and conditions.

5. VARIATION

5.1 Either party may seek a Variation to any aspect of the Services outlined in the Quote. Moerk will provide a revision to the Fee associated with the Variation. An amendment of the Agreement must be in writing and signed by each party.

5.2 If the Variation is not accepted by the Client, then:

(a) Moerk is under no obligation to perform the Services that is the subject of the Variation; and

(a) the Client may terminate the Agreement. If terminated, the Client remains liable to pay for any part of the Services completed prior to termination.

6. DELIVERY

6.1 The Client is responsible for the delivery of all Goods from Moerk’s premise to the Site unless otherwise agreed to by the Parties.

6.2 If delivery is to be provided by Moerk, it is to be completed in accordance with Item 9 of Schedule 1.

7. PAYMENTS AND FEES

7.1 Moerk will issue a tax invoice to the Client for payment of the Fee in accordance with the payment terms as set out in Item 6 of Schedule 1.

7.2 The Client must pay Moerk on the Due Date.

7.3 Payment must be by electronic transfer to the bank nominated by Moerk.

7.4 Payment must be made in the Currency as specified in item 7 of Schedule 1 and any currency exchange variations are to be paid by the Client.

7.5 From the date which is 30 days after the Due Date for payment Moerk may charge simple interest accruing daily at the Interest Rate, as outlined in item 8 of Schedule 1, on the undisputed portion of any tax invoice which remains due and unpaid.

7.6 The Client acknowledges that the Fee payable is exclusive of any GST or other applicable duties as may be required by law and Moerk will be entitled to add GST to the Fee payable.

8. PRICE ADJUSTMENT

8.1 Any increase in Moerk’s cost of providing the Services due to a Change in Law or any applicable Australian standards may be passed on to the Client as an increase in the Fee, effective from the date of the relevant cost impact to Moerk.

8.2 If the costs of the provision of the Services are increased due to a Change in Law, and Moerk is not otherwise entitled to recover the increases in costs from the Client under this Agreement:

(a) Moerk will pass through the effects of the Change in Law to the Client by issuing a notice to the Client specifying in sufficient detail:

(i) The nature of the relevant Change in Law;

(ii) The effective date of the Change in Law; and

(iii) The proposed increase to the costs of the provision of the Services.

(b) The Client will not unnecessarily withhold its approval of the Change in Law and the date of effect will be back-dated to the effective date outlined in the Change in Law notice.

(c) Any disputes arising from a Change in Law notice may be referred by either party to be determined in accordance with clause 19 of this Agreement.

9. CLIENT OBLIGATIONS AND WARRANTIES

9.1 The Client will appoint an Authorised Representative as set out in Item 1 of Schedule 1 who has the authority to act on behalf of the Client.

9.2 The Client will:

(a) cooperate with Moerk to enable Moerk to carry out the Services;

(b) provide all information and documentation that Moerk may require to carry out the Services;

(d) Ensure that the Client’s staff and agents cooperate with and assist Moerk;

(e) give Moerk non-exclusive access to the Site to the extent required for Moerk to carry out its obligations under this Agreement;

9.3 The Client warrants the conditions of the Site are in accordance with the information, data and reports provided to Moerk.

9.4 The Client warrants it holds all necessary licences (without limitation to, groundwater, building and construction etc) and discharge approvals as required by the local government within the Site necessary for Moerk to perform the Services.

9.5 If the Client fails to comply with clause 9.4, Moerk is entitled to terminate this Agreement and seek payment of any Services prior to termination and is entitled to all amounts set out in Clause 17.1(a)(ii).

9.6 The Client has paid all applicable taxes, duty or customs clearance for the Goods.

10. MOERK OBLIGATIONS AND WARRANTIES

10.1 Moerk will:

(a) execute the Services in accordance with care, skill and diligence of a competent and professional experienced in providing the Services in accordance with the Lead Time unless notice is provided outlining the reasons for an extension of the Lead Time;

(b) provide the Goods free from defects in design, materials and workmanship and be provided in accordance with the Quote;

(c) comply with all reasonable directions and procedures in relation to work health and safety and security in effect at the Site, as notified by the Client to Moerk and comply with Legal Requirements;

(d) take all reasonable precautions to ensure as little disturbance as possible to the routine of other activities performed within the Site; and

(e) comply with all applicable law.

10.2 Moerk provides a general warranty over the Goods for a maximum of twelve months from the time the Factory Acceptance Test is completed by Moerk or where a Factory Acceptance Test is not completed, the date as specified in writing from Moerk to the Client after completion of fabrication.

10.3 The general warranty over the Goods is subject to:

(a) maintenance being carried out in accordance with the instructions in the Manual and any other additional instructions provided to the Client by Moerk;

(b) log sheets completed by the Client and sent to Moerk at least on a monthly basis;

(d) spare parts and consumables delivered or approved by Moerk are used; and

(e) the quality of the feed water entering the system is in accordance with the water characteristics as stated in the Quote.

10.4 Moerk’s warranty does not include:

(a) consumables and cartridge filters;

(b) general wear and tear;

(d) membrane.

10.5 Where Moerk encounters a Latent Condition it will continue to work to the extent which it is able and otherwise give Notice within three Business Days after encountering the Latent Condition, including details of the conditions encountered and why they are a Latent Condition. The Authorised Representatives will confer within five Business Days to discuss the additional work identified pursuant to the Notice, any Variations required and/or extension of the Lead Time as a result of the delay. Where the Authorised Representatives are unable to agree a Latent Condition has been encountered or the impact of the Latent Condition the Authorised Representatives are to follow the process outlined in clause 19.

11. SUBCONTRACTING

11.1 Moerk may engage subcontractors to provide any part of the Services on Moerk’s behalf. In such circumstances, Moerk will ensure that the subcontractors hold the suitable qualifications, insurance and necessary licences to perform the Services.

12. TITLE AND RISK IN GOODS

12.1 Title of the Goods shall remain with Moerk until payment of the Fee is received by the Client in full.

12.2 Risk in the Goods passes to the Client upon Delivery or collection of the Goods by the Client, Client’s agent or courier as the case may be.

13. INSURANCE

13.1 Moerk will maintain for the duration of the Agreement insurance as set out in Item 10 of Schedule 1.

13.2 At the request of the Client, Morek will provide copies of certificates of currency of policies outlined in Item 10 of Schedule 1.

14. INDEMNITY

14.1 A party will be liable for and agrees to indemnify (“Indemnifying Party”) the other party (“Indemnified Party”) for any loss, damage, liability, claim, cost and expense suffered or incurred by the Indemnified Party directly in connection with, or arising out of this Agreement, relating to:

(a) any breach of this Agreement by the Indemnifying Party;

(b) any negligent act or omission by the Indemnifying Party;

(d) any wilful, fraudulent, negligent or unlawful act or omission of the Indemnifying Party; and

(e) any death or personal injury caused or contributed to by any act or omission of the Indemnifying Party;

except to the extent that the loss is directly attributable to the negligence, or wrongful act or omission of the Indemnified Party in which case it is reduced proportionately.

15. LIMITATION OF LIABILITY

15.1 Notwithstanding any clause, neither Party will be liable for any Consequential Loss suffered by the other Party in connection with the Services performed under this Agreement.

15.2 To the maximum extent permitted by law, Moerk’s liability arising out of or in connection with this Agreement is limited to an amount equal to the Fee.

15.3 Any delay or failure to perform any obligation for any loss, damage, cost or expense sustained or incurred by a Force Majeure Event.

16. INTELLECTUAL PROPERTY

16.1 Moerk owns all Intellectual Property of any plan, design, concept, development or material of any kind that may have been provided to the Client or used in connection with this Agreement.

16.2 Moerk grants the Client a non-exclusive, royalty-free, revocable, non-transferable licence to use all rights in any Intellectual Property of Moerk for any purpose in connection with this Agreement and the Client agrees it will have no right or interest whatsoever to any Intellectual Property.

17. TERMINATION

17.1 This Agreement may terminate in any one of the following ways:

(a) Termination for convenience:

(i) This Agreement may be terminated by either Party by giving the other 30 days’ written Notice of termination.

(ii) If this Agreement is terminated by the Client under clause 17.1, then Moerk will be entitled to payment of:

(A) all amounts due to Moerk for the Services performed up to, and including, the date of termination; and

(B) all necessary expenses reasonably incurred by Moerk as a result of the termination.

(iii) Upon termination of this Agreement all fees, expenses or reimbursements payable by the Client to Moerk must be paid by the Client within 30 days after the End Date.

(b) Termination for cause:

(i) Either Party may terminate this Agreement with immediate effect by giving written Notice of termination upon the happening of any of the following events, where applicable:

(A) fails to observe any term of this Agreement and fails to remedy the breach within 20 days after receiving written Notice specifying the breach and requiring it to be remedied;

(B) if the other Party commits a material breach of the Agreement which is incapable of rectification;

(D) if an administrator, receiver or receiver/manager or a liquidator is appointed to the Client pursuant to the Corporations Act 2001; or

(E) if the Client would be presumed to be insolvent by a court in any of the circumstances referred to in the Corporations Act 2001; and

18. FORCE MAJURE

18.1 A Party is not liable for failure to perform the Party’s obligations under this Agreement for a Force Majeure Event.

18.2 The Party affected by these circumstances must promptly take all reasonable steps to minimise any delay or damages caused by a Force Majeure Event and provide Notice to the other party in writing when such circumstances cause a delay or failure in performance and when they cease to do so.

18.3 Either Party may terminate this Agreement by giving 10 Business Days’ notice to the other Party if a Force Majeure Event continues to prevent a Party from performing all or substantially all of its obligations under this Agreement for a period of six months after Notice is given under clause 18.2 in respect of that Force Majeure Event.

19. DISPUTE RESOLUTION

19.1 A Party must not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a dispute arising out of this Agreement (Dispute) unless it has complied with this clause.

19.2 In the event of any Dispute, the parties must use their best endeavours to resolve the Dispute between themselves without delay, in accordance with the escalation procedure set out in clause 19.3.

19.3 The escalation procedure is as follows:

(a) A Party’s Authorised Representative must notify the other Party’s Authorised Representative in writing setting out the reasons for the Dispute (Dispute Notice); and

(b) The Parties Authorised Representatives must confer to attempt to resolve the dispute within 20 Business Days of the Dispute Notice.

19.4 If the Parties have not resolved the Dispute within forty two days of receiving the Dispute Notice (or such long period as agreed between the Parties), the dispute shall be, and is submitted to mediation in accordance with and subject to the rules and guidelines of the Institute of Arbitrators and Mediators Australia. The disputing Party will propose two National Accredited Mediators of which the other Party will choose one of the Mediators. There shall be one Mediator, the mediation will be conducted in Perth in the English language.

19.5 Notwithstanding the existence of a Dispute the Parties shall continue to perform this Agreement.

19.6 Nothing in this clause prevents a party from seeking interlocutory relief through courts of appropriate jurisdiction.

19.7 The costs of the mediation will be borne equally by the Parties.

20. NOTICE

20.1 Any Notice given under this Agreement must be in writing, signed by the Authorised Representative listed in Schedule 1 or as amended from time to time and be delivered personally to an Authorised Representative of the other party by pre-paid post or email.

20.2 A Notice is deemed to have been received:

(a) if delivered by hand to the nominated address, when delivered to the nominated address;

(b) if sent by pre-paid post, the second day after the date of posting; or

(c) if sent by email, at the time the email is sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered.

20.3 In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.

20.4 The provisions of this clause will not apply to the service of any proceedings or other documents in any legal action.

21. GOVERNING LAW

21.1 This Agreement is governed by and shall be construed in accordance with the laws of the State of Western Australia. The parties agree to submit to the non-exclusive jurisdiction of the courts exercising jurisdiction in Western Australia and any court having jurisdiction to hear appeals from these courts.

22. COUNTERPARTS

22.1 This Agreement may be executed in counterparts. All counterparts together constitute the Agreement.

23. SEVERABILITY

23.1 In the event that any of the provisions of this Agreement is held to be invalid or unenforceable in whole or in part, all other provisions will nevertheless continue to be valid and enforceable with the invalid or unenforceable parts severed from the remainder of the terms and conditions.

24. WAIVER

24.1 A default, delay or omission by either party of any of the provisions of this Agreement will not operate as a waiver of any subsequent breach of the same or other provisions.

25. ASSIGNMENT

25.1 Neither party shall transfer or assign their rights under this Agreement to any third party without the written consent of the other party, which consent shall not be unreasonably withheld.