Re: Minor works to be undertaken at the specified location.
We refer to the Client’s (You) request for ATCO Gas Australia Pty Ltd (ATCO) to undertake minor works at the Site and as described in the Schedule (Works).
This letter is to record the terms of the agreement on which the Works will be undertaken. Unless separately defined in this document, capitalised terms have the meanings given to them in the Particulars set out in the Schedule. It is agreed as follows.
- You must obtain, at your own cost, all relevant approvals from governmental bodies and affected third parties, including but not limited to approvals in respect of access, planning, traffic management, ground disturbing activities, Aboriginal heritage and vegetation clearance for the Works.
- As at the date of this agreement, ATCO estimates that it will incur the Estimated Costs to undertake and deliver the Works. Promptly upon execution of this agreement, ATCO may issue a tax invoice to you for all or part of the Estimated Costs, in its sole discretion, and you must pay the invoice within 30 days of its issue.
- The performance of the Works is conditional upon:
- all relevant approvals referred to in paragraph 1 having being obtained to ATCO’s reasonable satisfaction; and
- receipt of payment of any invoice issued pursuant to paragraph 2.
- You must provide all necessary assistance to ATCO and, upon reasonable notice, you must provide ATCO with clear and unrestricted access to the Site, together with all necessary escorts and/or site inductions. You agree that ATCO may undertake ground disturbance work on the Site.
- You represent and warrant to ATCO that there is no contamination or environmental issues on the Site.
- Nothing in this agreement transfers ownership, or otherwise grants any rights, in any current and future rights of ATCO including in respect of copyright, designs, know-how, confidential information moral rights and all other intellectual property defined in article 2 of the convention establishing the World Intellectual Property Organisation 1967. You assign to ATCO all such rights created or generated by or on behalf of you in relation to the Works.
- You release ATCO from any and all claims (whether known or unknown and whether arising now or in the future) relating to the matters related to or contemplated by this agreement and agree that ATCO may plead this agreement as a bar to any such claims.
- You must ensure that all non-ATCO personnel and third parties are excluded from the area at the Site where the Works are to be undertaken (Works Area) and that no activities are undertaken near to the Works Area without prior ATCO’s prior approval, acting reasonably and having regard to the safety of its personnel and the integrity of the Works.
- ATCO may cease any activities in connection with the Works if you become, or ATCO reasonably suspects you may become, insolvent during the conduct of the Works.
- You acknowledge that the Estimated Costs are an estimate only and ATCO’s actual costs may be more or less, including as a result of changes to the scope of work and requests for ATCO to provide additional assistance in connection with the Works. ATCO will endeavour to notify you periodically regarding the approximate amount of costs incurred and whether it anticipates that it will exceed the Estimated Costs. Notwithstanding, you undertake to pay all of the costs incurred by ATCO in connection with this agreement (Total Costs).
- In addition to a final tax invoice, ATCO may issue progressive tax invoices from time to time. You must pay each tax invoice within 30 days of its issue. If you request that ATCO cease the Works (including preparation for the Works), ATCO will be entitled to recover from you its reasonable costs associated with the Works (including reinstating any infrastructure or carrying out works to make the Site safe).
- Neither you nor ATCO will, to the fullest extent permitted by law, be liable to the other for any indirect or consequential loss arising in connection with this agreement including loss of profits, anticipated loss of profit or revenue, loss of production, loss of business opportunity, loss of or damage to goodwill or reputation or any other similar loss.
- All amounts payable under this agreement are exclusive of GST. Unless alternative arrangements are made between ATCO and you in writing, the amount payable shall be increased by the amount of GST payable in respect of taxable supplies made.
- Any invoice that remains unpaid after 30 days of its date of issue will become a debt due and payable to ATCO and you must pay ATCO interest at the base rate for business overdraft facilities greater than $2 million published by Westpac plus 2% per annum for each Business Day that the tax invoice remains unpaid.
- You agree and acknowledge that nothing in this letter creates an obligation on ATCO to supply you with gas and that this letter is made without prejudice to any right, power, authority, duty or obligation of ATCO contained in the Energy Operators (Powers) Act 1979 (WA) or the Energy Coordination Act 1994 (WA) or any other law which may confer any right, power, authority, duty or obligation on ATCO.
- This agreement may only be amended or varied by prior written agreement between the parties. This agreement is governed by the laws of Western Australia and each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Western Australia. This agreement may be executed in counterparts and those counterparts taken together constitute one document.
- This agreement and its contents are confidential and will be kept confidential and not disclosed to anyone except that a party may disclose Confidential Information if required by a court or law provided that the party making the disclosure provides prompt notice to the other party of any such requirement and takes all reasonable steps to object to or limit the nature and extent of any required disclosure.
- 1You agree that you will not carry out, or allow to be carried out, any activities that prejudice, damage or adversely affect the Works or any ATCO infrastructure, whether pre-existing or as part of any works located on or near the Site.
- Notwithstanding anything in this letter, including the payment of any amount of the Total Costs to ATCO, title to the Works will remain with ATCO and you will have no rights or title in respect of the Works.
- You represent and warrant that you are, or are duly authorised to act on behalf of, the registered proprietor(s) of the Site and have all necessary power and authority to enter into this agreement including but not limited to providing access to the Site for ATCO to conduct the Works.
- Please confirm your acceptance of these terms by counter-signing a copy of this agreement where indicated and return to us within 14 days from the date of this agreement. By doing so, you are entering into a legally binding agreement with ATCO as set out herein. If you have any questions, please contact the ATCO Contact. Executed for and on behalf of ATCO Gas Australia Pty Ltd ACN 089 531 975