The Company is K92 Mining Limited.
The Supplier is the Supplier of the Goods.
The Contractor is the Person(s) or Entity providing the Services.
This Agreement is made and entered into between the following Parties (hereinafter referred to as Company and Supplier or Contractor) for the performance of services described in Schedule A of this Agreement (“the Services”) and in accordance with the General Terms and Conditions of this Agreement. The terms of this Agreement and its Schedules and Attachments shall be interpreted and construed as complementary, whenever possible. In the event, however, of any contradiction, discrepancy, ambiguity, or inconsistency the parts of this Agreement shall have the following order of priority; (a) Schedule A, (b) Schedule B, (c) General Terms and Conditions, (d) Attachments where applicable.
- ACKNOWLEDGEMENT OF RECEIPT OF THE PURCHASE ORDER:
A duplicate page of the front page of this Purchase Order shall be executed by the Supplier (such execution shall indicate acceptance of the Purchase Order without limitation or reservation) and shall be sent to the Company within 1 business day from the date of the receipt of the Purchase Order.
1.1. Contractor agrees to perform for Company the Services (Works), as further defined below using without limitation; its own suitably experienced labor, (including all management, administration, supervision, technical, craft, clerical), materials, tools, equipment, consumables, and associated support services. The Services (Works) shall at all times be performed to the highest level of care and skill always to the satisfaction of the Company. 1.2. Contractor shall at all times be subject to the general direction and control of the Company in the performance of the Services (Works), however such general direction shall not release the Company from full responsibility for proper and timely performance of the Services (Works).
- DELIVERY TERMS AND CONDITIONS:
All supplies are to be available at time of quotation, or in the case of partial supply or backorders to be communicated to the Company at the time of quotation prior to generation of the Purchase Order. Any freight costs must be communicated via quotation to the Company at Quotation and subsequently approved and shown on the Purchase Order. The delivery shall be made to Lae and will be inclusive of all packaging.
- DELIVERY INSTRUCTIONS:
The Supplier shall keep the Company informed regarding the delivery date of the Goods. The Supplier shall notify the Company at such time that the Goods are ready for collection with the following details:Purchase Order Number
Contact Name and Contact Phone
Weight, Dimensions and Quantity of Packages of the Goods Consignment.
Individual packages of the Consignments to be labelled with the Purchase Order Number and showing individual numbering of packages of the consignment – e.g.: Box 1 of 2, Box 2 of 2 and addressed to:
K92 Mining Limited
Watarise Junction, Gusap,
Papua New Guine
- ACCEPTANCE OF THE GOODS:
Acceptance takes place upon the receipt of the Goods at the above delivery location.
- RISK AND TITLE:
Title to and property in the Goods immediately passes to the Company upon delivery of the Goods.
- SERVICE PURCHASE ORDERS:
It is the Contractor’s responsibility to ensure that when visiting K92 Mining Limited to make themselves informed of the Company’s Induction, Safety and PPE requirements and ensure that such items are provided to their staff prior to arrival at K92 Mining Limited site. All Contractors are to comply with Company Site Procedures and Policies whilst on site.
DESCRIPTION OF SERVICES
Contractor shall perform following services:
SCHEDULE REQUIREMENTS, DATE FOR COMPLETION OF SERVICES
6.1. Provide the Services (Works) on its own, using its own means and materials. If the Contractor uses any means or equipment of the Company for the performance of the Services (Works), the Parties shall execute a detailed list of the means or equipment transferred by the Company to the Contractor, which shall be returned by the Contractor to the Company in the quantity and in the condition as they have been received, taking into account normal usage;
(a) Perform the Services (Works) in a due manner in accordance with the terms and conditions hereof.
(b) To ensure any defects arising during the provision of Services (Works) are eliminated within the terms agreed by the Company at Contractor’s own costs and forces and are not compensated by the Company.
(c) During the term of this Agreement Contractor shall not disclose to third parties any information in respect of the contents and performance hereof and Contractor is responsible for employees for non-disclosure of any information in respect of this Agreement.
(d) During the performance of the Services (Works) hereunder, ensure that its personnel and the personnel of its subcontractors comply with the requirements existing in PNG, as well as with the health, safety, environmental, sanitary, fire, access, ethics and other rules, procedures, instructions and orders of the Company.
(e) The Contractor also guarantees to the Company that, during the performance of the Services (Works) hereunder, its personnel and the personnel of subcontractors will not use alcohol, narcotic or other toxic substances in the territory of the Company and will not be present in the territory of the Company under influence of alcohol, narcotic and/or other toxic substances;
6.2 . Promptly notify the Company of any circumstances beyond its control that prevent the Services (Works) from being performed in a due manner or make their completion impossible in time set forth by this Agreement.
- CONTRACTOR TO PERFORM THE WORK:
The Contractor must:
(a) Perform the Work (which includes all work expressly described in the Purchase Order and Scope of Works if applicable) in a safe and professional manner, in accordance with all applicable Laws and Good Industry Practices.
(b) Provide all personnel, materials, resources, Contractor Equipment, facilities necessary to perform the Work.
(c) Ensure all Contractor Equipment is in good working order and suitable for use in connection with the Work;
(d) Obtain all Authorizations required for the performance of the Work; and
(e) Comply with all reasonable directions given by the Company in respect of the Work.
The Contractor must commence the Work on the date or within the period specified in the Purchase Order and continue to perform the Work for the period specified in or determined in accordance with the Purchase Order.
- WARRANTY AND RE-PERFORMANCE
8.1. If the Services (Works) or any portion thereof either during performance or within a 5 (thirty) calendar days period – for the defects which have been deliberately hidden by Contractor) following acceptance of the Services (“the Re-Performance Period”) fails to conform to this Agreement (Deficient Services), Company may, in addition to any other rights and remedies available at legislation, require Contractor to correct the nonconformance at Contractor’s expense.The Contractor must, at its cost, reperform any Work which is defective or otherwise not to the Company’s satisfaction upon notification by the Company at any time during the Term of Work and;
(i) Until the period ending 12 months after completion of the Work; and
(ii) in respect of Goods pursuant of Clause 8.
(a)The Supplier or Contractor at its own cost, repair, replace or rectify any Goods (or any replacement Goods) to the Company’s satisfaction, which are defective or otherwise not in compliance with the requirements of the Contract during the period commencing on Delivery and ending 24 months later.
(b)If the Supplier/Contractor fails to rectify defects in accordance with the timeframe reasonably required by the Company, the Company may arrange to have the defects remedied by alternative means and may recover the direct costs of doing so from the Supplier/Contractor.
After finishing Services (Works) for every request, Contractor shall submit a tax invoice for the Services (Works) performed in accordance with Company’s invoicing procedures. The Contractor’s tax invoices shall include a description of the Services (Works) performed by Contractor and covered by such tax invoice. These descriptions shall match the agreed break down of the Agreement Price (if any). The Contractor’s tax invoice must be supported by: (i) the Certificate of Services (Works) Performed in the form as provided where applicable.Acceptance of the Services (Works) will occur when the Services (Works) are fully complete including elimination of all defects and errors. Fully complete includes the delivery of all reports, manuals, warranties, deliverables set out in Schedule A, and execution by both Parties of the Services Acceptance Certificate in the form provided in applicable Attachments.
The Supplier’s remuneration shall be determined by the application of the unit rates stated on this Purchase Order and shall exclude any GST (Company is qualified for GST Zero Rating under sec.21 (1)(d) of the GST Act 2003) and include all Supplier’s costs.
- SPARE PARTS:
During the operational life of the Goods or any plant or facility in which the Goods will be installed, the Supplier/Contractor must give sufficient notice to the Company of its or its Subcontractors’ intention to cease manufacture of supply of any of the Goods or any component parts or replacements for the Goods, to enable the Company to purchase such Goods, component parts or replacements.
- HAZARDOUS MATERIALS:
The supply of Goods must comply with Laws to the extent that they contain toxic, corrosive or hazardous materials, the Supplier must ensure that such warning and documentation including a SAFETY DATA SHEET accompanies each consignment, together with appropriate care and handling instructions. Suppliers are to email copies of the SAFETY DATA SHEETs for all hazardous substances to firstname.lastname@example.org at acceptance of Purchase Order.
The Supplier shall provide copies of all documentation including itemized delivery docket attached to the goods.
- In compliance with the Purchase Order Terms and Conditions, the Supplier shall be liable by right for payment of penalties for delay, for any delivery made after the date stated in the Purchase Order. The amount of the said penalties shall be equal either to the costs incurred by the Company due to the Supplier’s default, or to one percent (1%) of the total Purchase Order amount per week, up to a maximum of ten percent (10%) of the total Purchase Order amount. The penalty shall be deducted from the amount otherwise due under an invoice.
- The Purchase Order Terms and Conditions applies to this Purchase Order and take precedence over your conditions of sale.
Invoices shall be clearly identified with the Purchase Order number, together with supporting documents, shall be presented and address to the following address: AP@k92mining.com and cc email@example.com . Invoices shall be issued in accordance with the payment schedule provided for in the Contract or if not so provided, after completion to the Company’s satisfaction of the Services pursuant to the Contract.
9.1.Contractor shall defend, indemnify and hold harmless the Company, its affiliates, any person or entity with whom Company has an arrangement pursuant to which Company is required to pay or indemnify such party, and the respective agents, representatives, employees, shareholders, commissioners, directors, officers and assigns of each of the foregoing, from and against all losses, liabilities, claims, demands, debts, damages, fines, penalties, causes of action, suits, expenses and costs of any nature whatsoever (collectively, “Losses”) (including any third party claim) suffered by any such person or entity as a result of: (a) injury to or death of, or loss or damage to the property of third parties and their employees arising directly or indirectly out of any act or omission of Contractor or its subcontractors; (b) injury to or death of any personnel of Contractor or its subcontractors; or (c) any loss or damage to the property of Contractor or its subcontractors, except in the case of either (a), (b) or (c) to the extent that the liabilities, claims, damages, losses, and expenses (including any third party claims) result from the willful, wanton or reckless actions of Company.17.2 .Company shall defend, indemnify and hold harmless the Contractor, its affiliates, any person or entity with whom Contractor has an arrangement pursuant to which Contractor is required to pay or indemnify such party, and the respective agents, representatives, employees, shareholders, commissioners, directors, officers and assigns of each of the foregoing, from and against all losses, liabilities, claims, demands, debts, damages, fines, penalties, causes of action, suits, expenses and costs of any nature whatsoever (collectively, “Losses”) (including any third party claim) suffered by any such person or entity as a result of: (a) injury to or death of, or loss or damage to the property of third parties and their employees arising directly or indirectly out of any act or omission of Company or its subcontractors; (b) injury to or death of any personnel of Company or its subcontractors; or (c) any loss or damage to the property of Company or its subcontractors, except in the case of either (a), (b) or (c) to the extent that the liabilities, claims, damages, losses, and expenses (including any third party claims) result from the willful, wanton or reckless actions of Contractor.17.3. Where any of the Parties is obliged under this Article 9 (or any other provision of the Agreement) to indemnify any of the other Parties in respect of a matter the following shall apply:
(i) the Party having the benefit of the relevant indemnity (“the Beneficiary”) shall give notice thereof to the other Party (“the Payer”) as soon as practicable after the Beneficiary is aware of the occurrence of any matter that is covered by the indemnity;
(ii) subject to compliance with paragraphs 9.3 (iii) and 9.3 (iv) the Beneficiary shall be obliged to take such steps as are reasonably practicable having regard to the nature of the breach in question to mitigate its loss;
(iii) the Beneficiary shall not settle or compromise any claim action or proceedings without the approval of the Payer;the Beneficiary shall at the written request of the Payer permit the Payer to defend any claim action or proceedings in the Beneficiary’s name but at the Payer’s cost in such a way as the Beneficiary requires.
- LIMITATION OF LIABILITY
18.1. Under no circumstances shall either party be liable to the other for loss of profit (including loss of profit on unperformed Services (Works)), consequential, incidental, or exemplary damages (including but not limited to loss of use) irrespective of the theory upon which the claim is brought.
18.2. For Supply of Services, If the Contractor fails to observe the timeline for delivery of services under the specific Order, the Company is entitled to demand and the Contractor is liable to pay the penalty of 0.1 % (zero point one percent) of the cost of such services for each working day of delay on the basis of a written demand of the Company, but not more than 10 % of the sum of undelivered Services.
19.1. At all times while performing Services, Contractor shall carry and maintain, with financially sound and reputable insurance companies, the mandatory insurances required by the legislation of PNG. Upon request, Contractor agrees to provide Company insurance certificates confirming that the coverage required above are in full force and effect.
20.1 Company may, by written notice to Contractor (minimum of ten (10) days prior to termination) and without formally applying to any court or arbitration tribunal, terminate this Agreement at any time, either for Company convenience or for the default of Contractor. Contractor shall not be entitled to any payment for anticipated profit or unperformed Services under any circumstances. However Company shall pay for the Services delivered or being in the process of delivery.
- GOVERNING LAW AND DISPUTE RESOLUTION
21.1. The Parties agree that this Agreement shall be interpreted under and governed by the laws of PNG.21.2. In the event of any dispute as arising out of this Agreement or in connection with any issue or action with respect to the provisions hereof, either Party may send a notification to the other Party specifying the essence of dispute or discrepancy, the following provisions shall apply:
The Parties shall make every effort to settle all the disputes and discrepancies by negotiations within one month.
21.3. Failing any resolution through the procedure specified in 15.2(i), any dispute, controversy or claim arising out of, or in connection with, this Agreement (including any question about its existence, validity or termination) shall be referred to and finally resolved by the PNG Arbitration Court in accordance with its rules. The seat of the arbitration shall be Almaty. The arbitration shall consist of one (1) arbitrator. The language of the arbitration shall be English. Any award under this article shall be binding on the Parties. By submitting the dispute to arbitration under the rules, the Parties undertake to carry out any award without delay and shall be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made.