Terms of Trade

Terms of Trade

1. GENERAL

Orders for rental equipment (“Equipment”), services (“Services”), and the supply or sale of products (“Goods”) or (“Equipment”) to be provided by R&D Solutions Pty Ltd [ACN 138 827 915] (hereinafter referred to as “R&D”) to its customers (each a “Customer”) are subject to acceptance by R&D, and any orders so accepted will be governed by the terms and conditions stated herein and any additional terms proposed or agreed to in writing by an authorized representative of R&D (these terms and conditions and any such additional terms collectively referred to herein as the “Agreement”). This Agreement shall supersede any conflicting terms in any rental order, purchase order, work order, service order, delivery ticket, or similar agreements or instruments that currently exist with regard to Equipment, Goods or Services to be delivered under this Agreement or that may be subsequently issued or delivered by or on behalf of Customer during the term of this Agreement relating to any orders for Equipment, Goods or Services. This Agreement constitutes the entire agreement of the parties and supersedes all previous understandings and agreements between the parties, whether oral or written.

2. PRICES, INVOICING, GST AND PAYMENT TERMS

a) All prices are quoted and to be paid in the currency stated in the quotation and do not include GST, VAT or similar sales tax, shipping costs, taxes, levies, export or import duties or installation costs applicable to the Equipment, Services or Goods, unless specifically stated.
b) Goods will be invoiced upon delivery to Customer. Services and Equipment will be invoiced monthly or upon completion of the job, unless otherwise agreed in writing by an authorized representative of R&D.
c) Unless alternate payment terms are specified or approved by an authorized R&D representative, all charges, including applicable packing and transportation costs, billed by R&D must be paid within thirty (30) days from the date of issue of invoice to Customer.
d) For invoices unpaid after thirty 30 days, at R&D's option, discounts from list price may be revoked and interest may be charged at the higher of (a) the rate of one percent (1%) per month above the base rate then applicable to R&D and (b) the maximum rate allowed by law, may be charged from the due date for payment until receipt by R&D of the unpaid amount whether or not after judgment. If unpaid amounts are collected through legal proceedings or by a collection agent, Customer shall, in addition to paying all amounts owed hereunder, indemnify R&D against the collection costs and legal fees.
e) Under the Law of Australia, GST is payable on certain Equipment, Goods and Services. “GST” means the Good and Services Tax as defined in the Goods and Services Act 1999 (Cth). All invoices pursuant to these Services will be in the form of a tax invoice. Each tax invoice will show the GST payable.

3. DEFINITION OF A DAY
 
A day is a twenty-four (24) hour period or any part thereof. Day rates will not be pro-rated.

4. QUALITY OF GOODS AND EQUIPMENT

Customer shall have the right upon reasonable notice to inspect or test Goods or Equipment. R&D registration details are ISO9001 (2015 registered).

5. DELIVERY OF GOODS AND EQUIPMENT

R&D shall use reasonable endeavors to deliver the Goods and/or Equipment by the date agreed by R&D in its order confirmation. R&D may at its discretion provide the Equipment, Services and/or Goods through or with the assistance of its affiliated group companies. R&D will not be liable for damages or loss to Customer caused directly or indirectly by any delay in the delivery of the Goods and/or Equipment.

6. ACCEPTANCE OF GOODS AND EQUIPMENT

a) Customer shall immediately, upon receipt of Goods and/or Equipment, check the Goods and/or Equipment against the packing lists, and examine them in accordance with the nature of the Goods and/or Equipment. Claims regarding (i) transportation damage and/or insufficient number of packages shall be made and proved upon receipt of Goods and/or Equipment to the freight forwarder. Claims regarding (ii) insufficient contents of packed Goods and/or Equipment shall be made to R&D upon receipt of Goods and/or Equipment and no later than three (3) days after arrival, specifying the discrepancies.
b) Customer shall test the Goods and/ or Equipment as soon as practically possible after installation and unless otherwise agreed no later than within three (3) days after installation or the time R&D’s personnel leaves the Well Site, whichever occurs first.. Unless Customer provides a written report to R&D within this time period which
includes examples of the Goods and/or Equipment failure to materially comply with R&D specifications, the Goods and/or Equipment shall be deemed to have been accepted.

7. SERVICES

a) R&D will supervise the installation and commissioning of the Goods and Equipment and Customer will pay for this supervision as agreed in the quote and order confirmation. Upon completion of the installation and commissioning, Customer shall sign confirming that the installation has been completed.
b) Charge rates for service personnel commence the day of departure from home base and cease upon return thereto, unless otherwise agreed. The day rate does not include travel or accommodation costs. Travel and accommodation may be paid directly by Customer, or will be re-charged at cost plus fifteen percent (15%), unless otherwise agreed.
c) Equipment is charged daily rental. Rental charges commence upon departure from ex-works (as defined in Incoterms 2010) warehouse until return thereto, unless otherwise agreed.
d) Any and all costs and taxes and duties associated with the transport and import/export of equipment are the responsibility of Customer. If R&D pays these costs, they will be re-charged at cost plus fifteen percent (15%), unless otherwise agreed.

8. CANCELLATION

a) Goods: Orders for Goods that are subject to cancellation after acceptance by Customer will be subject to a cancellation fee which will be quoted on a case by case basis, plus any actual packing and transportation costs. Goods specially built or manufactured to Customer specifications, or orders for substantial quantities manufactured specially for Customer are not subject to cancellation, unless otherwise agreed in writing.
b) Equipment/Services: In the event Customer cancels an order for Services or Equipment, Customer shall be liable for all costs incurred by R&D in the mobilization/demobilization related thereto, and any other reasonable costs incurred by R&D incidental to such cancellation.

9. THIRD-PARTY CHARGES, TAXES

Customer shall pay all third-party charges, in compliance with R&D's current price list, and any sales, use, rental or other taxes that may be applicable to transactions hereunder. Customer shall pay all applicable customs, excise, import and other duties unless otherwise agreed to in writing by an authorized representative of R&D. Customer shall provide necessary import licenses and extensions thereof.

10. RISK OF LOSS AND TRANSFER OF TITLE

a) Goods: The risk of loss and transfer of title shall pass to Customer as soon as the Goods depart R&D’s point of origin
b) Equipment: The risk of loss shall pass to Customer as soon as the Equipment depart R&D’s point of origin. However, title to Equipment shall permanently remain with R&D.

11. VARIATIONS, SITE INSTRUCTIONS AND EOT CLAIMS

These Services may be varied by a signed variation executed by both parties. Rates and charges for the variation will be inline with specified values in the agreement or mutually assigned an appropriate value. Site Instructions may be issued under this agreement and will be commercially captured by a variation. EOT Claims will be used for any extension needed beyond a milestone or completion date in the agreement.

12. LIABILITIES, RELEASES AND INDEMNIFICATION

a) In this Agreement (i) “R&D Indemnitees” means R&D Group, its parent, subsidiary and affiliated or related companies, its subsidiaries, contractors, subcontractors of any tier and their respective officers, directors, employees, consultants, and agents and invitees; (ii) "Claims" means any and all claims, demands, causes of action, liabilities, damages, judgments, fines, penalties, awards, losses, costs, expenses (including, without limitation, attorneys' fees and costs of litigation) of any kind or character arising out of, or related to, the performance of or subject matter of this Agreement or under any orders for Equipment, Goods or Services, asserted under any theory of liability (including, without limitation, statutory, common law, negligence, strict liability, contract (including, without limitation, contractual indemnity), or other theories of liability; (iii) “Consequential Damages” means any indirect, special, punitive, exemplary or consequential damages or losses (whether foreseeable or not at the date of this Agreement) under applicable law and damages for lost production, lost revenue, lost product, lost profit, lost business, lost business opportunities, or rig time, regardless of whether the same would be considered direct, indirect, special, punitive, exemplary or consequential damages or losses under applicable law; (iv) “Customer Indemnitees” means Customer, its holding company, subsidiary and affiliated or related companies; its co-lessees, co-owners, partners, joint operators and joint venturers., lessors and contract counter-parties and their respective officers, directors, employees, consultants, agents and invitees; (v) “Customer Representative” means the Customer appointed representative responsible for the contact, Notices and performace of the Agreement unless delegated authority via a Notice; (vi) “Cuttings and Waste” means any drill cuttings and associated muds, waste or materials from the well arising from or processed pursuant to this Agreement; (vii) “Tools” means Equipment, Goods and any of R&D Indemnitees’ instruments, equipment, or tools; (viii) “Third Party Equipment” means any other goods or equipment sourced from a third party under this Agreement managed by the relvant mark up costs; (ix) “R&D Group” means, individually and collectively, R&D and any holding company or subsidiary of R&D or any subsidiary of such holding company controlled by, controlling or under common control of R&D or any subsidiary of such holding company, where the term “control” shall mean either ownership, directly or indirectly, of securities entitling it to exercise in the aggregate equal to more than 50 % of the voting power of the entity in question; or possession directly or indirectly, of the power to direct or cause the direction of the management and policies of or with respect to the entity in question, whether through ownership of equity securities, by contract or otherwise; (x) “R&D Representative” means the R&D appointed representative responsible for the contact, Notices and performance of this Agreement unless delegated authority via a Notice; (xi) “Notice” means any formal notice given under this Agreement; (xii) “Suspension Notice” means any notice given by R&D to suspend all or part of these Services; (xiii) “Well Site” shall mean the location of the Well where the Services are being executed and “Work Site” shall mean any other Site where works under these Services are executed.
b) R&D shall release, indemnify, defend and hold Customer Indemnitees harmless from and against Claims arising out of or related to (i) personal or bodily injury, illness, sickness, disease or death of any employee or contractor of R&D Indemnitees, and (ii) loss, damage or destruction of real or personal property, whether owned, leased, or chartered, of any member of R&D Indemnitees, except for any Equipment or Goods leased or rented to Customer or transferred to or installed for Customer to which title has passed to Customer under this Agreement and except for Claims for property damage attributable to gross negligence or willful misconduct of Customer Indemnitees.
c) Customer shall release, indemnify, defend and hold R&D Indemnitees harmless from and against Claims arising out of or related to (i) personal or bodily injury, illness, sickness, disease or death of any employee or contractor of Customer Indemnitees, and (ii) loss, damage or destruction of real or personal property, whether owned, leased, or chartered, of any member of Customer Indemnitees, including any Equipment or Goods leased or rented to Customer or transferred to or installed at Customer to which title has passed to Customer under this Agreement, but except for Claims for property damage attributable to gross negligence or willful misconduct of R&D Indemnitees.
d) Notwithstanding paragraph (b) above, should Tools become lost or damaged in the well or hole when performing or attempting to perform the services hereunder, it is understood that Customer shall make every effort to recover the lost or damaged Tools. Customer shall assume the entire responsibility (including all costs) for such fishing operations in the recovery or attempted recovery of any such lost or damaged Tools. None of R&D’s employees are authorized to do anything whatsoever, nor shall any of R&D’s employees be required by Customer to do anything, other than consult in an advisory capacity with Customer in connection with such fishing operations. In the event Customer fail to recover Tools lost in the well, or if Tools become damaged in the well, or damaged during recovery; Customer shall reimburse R&D for the cost of repairing any Tools damaged. For Tools lost or damaged beyond repair Customer shall reimburse R&D the replacement value of any such Tools in addition to accrued Equipment rental. Further, all risks associated with loss of or damage to tools while in the custody and control of Customer or during transportation arranged by or controlled by Customer or caused by Customer’s failure to provide R&D with safe and sound access and sound location that can support the Tools, or caused by any harmful fluids or chemicals used by Customer in connection with the Tools, shall be borne by Customer.
e) Notwithstanding anything contained in this agreement to the contrary, Customer shall release, indemnify, defend and hold R&D Indemnitees harmless from and against Claims asserted by or in favor of any person, party, or entity (including R&D Indemnitees) resulting from: (i) R&D’s modification of the Equipment, Services or Goods in compliance with written specifications provided by Customer; (ii) loss of or damage to any well or hole (including but not limited to the costs of re-drill and sidetrack), (iii) blowout, fire, explosion, cratering or any uncontrolled well condition (including but not limited to the costs to control a wild well and the removal of debris), (iv) damage to any reservoir, geological
f) formation or underground strata or the loss of oil, water or gas therefrom, (v) the use of R&D Indemnitees' radioactive tools or any contamination resulting therefrom (including but not limited to retrieval or containment and clean-up), (vi) pollution or contamination of any kind (other than surface spills that are attributable to leaks from R&D Indemnitees’ equipment within R&D Indemnitees’ possession and control) including but not limited to the cost of control, removal, clean-up and remediation,
or (vii) damage to, or escape of any substance from, any pipeline, vessel, or storage or production facility.
g) Customer acknowledges that cuttings and waste remain Customer’s responsibility. Therefore, notwithstanding anything contained in this agreement to the contrary, Customer shall release, indemnify, defend and hold R&D Indemnitees harmless from and against Claims, asserted by or in favor of any person or entity, including, without limitation, as a result of contamination of, or adverse effects on the environment or any form of property, or any violation or alleged violation of statutes, ordinances, laws, orders, rules and regulations (including, without limitation, Claims pursuant to applicable environmental laws and regulations resulting from the transportation, storage, treatment, disposal or handling of the cuttings and waste by R&D Indemnitees or any other person, party or entity.
h) Customer shall release, defend, indemnify and hold R&D Indemnitees harmless from and against Claims for Consequential Damages asserted by or in favor of any member of Customer Indemnitees. R&D shall release, defend, indemnify and hold Customer Indemnitees harmless from and against Claims for Consequential Damages asserted by or in favor of any member of R&D Indemnitees arising out of this Agreement.
i) After delivery according to Section 5 Customer shall release, defend, indemnify and hold R&D Indemnitees harmless from and against Claims or loss or damage suffered by anyone other than Customer Indemnitees and R&D Indemnitees in connection with the Services or caused by the Goods or Equipment, regardless of any form of contractual, delictual, statutory or other liability on the part of the R&D Indemnitees.
j) Subject to the foregoing in this Section 11, the total and maximum liability of R&D under any provision of this agreement; including without limitation the warranties and indemnities provided in Section 11, 16 and 18, or any transaction or acts contemplated by this Agreement shall in each event and series of related events be limited to the value of the particular Equipment, Services or Goods which give rise to such Claims or action, and R&D's total and maximum liability shall in no event exceed the total price paid by Customer for the goods under the Agreement, and Customer hereby unconditionally waives, releases and fully discharges R&D Indemnitees from and against Claims, liabilities or losses in excess of such maximum aggregate amount, and Customer hereby agrees to indemnify, defend and hold harmless R&D Indemnitees from and against Claims, liabilities or losses in excess of such maximum aggregate amount.
k) The exclusions of liability, releases and indemnities set forth in paragraphs b through j of this Section 11 and 16, shall apply to Claims without regard to the cause(s) thereof including but not limited to pre-existing conditions, whether such conditions be patent or latent, the unseaworthiness of any vessel or vessels, imperfection of material, defect or failure of products or equipment, breach of representation or warranty (express or implied), ultrahazardous activity, strict liability, tort, breach of contract, breach of duty (statutory or otherwise), breach of any safety requirement or regulation, or the negligence, gross negligence, or willful misconduct, or other legal fault or responsibility of any person, party, or entity (including the indemnified or released party), whether such form of negligence be sole, joint or concurrent, active or passive.
l) Redress under the indemnity provisions set forth in this Section 11 shall be the exclusive remedies available to the parties hereto for the Claims covered by such provisions.

13. INSURANCE

Each Party shall procure and at all times maintain a liability insurance that provides sufficient protection in relation to its potential liability towards the other Party under this Agreement. Upon either Party’s request, each Party shall provide the other Party with a copy of the insurance certificate.

14. RADIOACTIVE TOOLS

R&D is not licensed to operate with, and does not own, radioactive material. Customer shall inform R&D of any radiation hazards if R&D may be involved in activities in which radioactive material is used or may be present as part of the work. Customer shall perform and/or oversee any radiation protection activities related to the work. Customer shall cooperate with R&D and ensure all necessary assessments in relation to radioactive material are made, recorded and addressed according to applicable regulations.
If work involves use of R&D equipment under radioactive conditions Customer shall pay and be responsible for the control and/or removal of any radioactive contamination from R&D equipment and shall perform full decontamination of such equipment prior to returning it to R&D. For the avoidance of doubt, full decontamination includes the removal of radioactivity from all equipment surfaces, outside and inside (where relevant). Rental charge for the Equipment shall accrue until the Equipment is returned fully decontaminated to R&D. Customer shall keep R&D informed about any monitoring, control, measurement for radioactivity and any decontamination requirements and activities.

15. CUSTOMER WARRANTY/BINDING AUTHORITY

If Customer is not the sole owner of the mineral interests, the well or the field, Customer’s request for services, equipment or goods shall constitute Customer’s warranty that Customer is the duly constituted agent of each and every owner and has full authority to represent the interests of the same with respect to all decisions taken throughout the provision of any services, equipment or goods hereunder. Customer shall release, defend, indemnify and hold R&D Indemnitees harmless from and against Claims resulting from the allegation by any person or entity that Customer has misrepresented or lacked sufficient authority to represent such person or entity as warranted by Customer in this article.

16. ACCESS TO WELL AND WELL SITE STORAGE

a) With respect to onshore and offshore operations, Customer shall provide at its expense adequate means of transportation required for Tools, Goods and Equipment and R&D personnel to gain access to or return from a Well Site, and shall obtain at Customer’s expense all permits, licenses or other authorization required for R&D to enter upon work areas for the purposes contemplated. When necessary to provide transportation to move Tools, Goods and Equipment or R&D personnel, such shall be arranged and paid for by Customer.
b) Customer shall provide proper storage space at the Well Site, meeting all applicable safety and security requirements and consistent with good industry practices, for the Tools and Goods, including, without limitation, all explosive and radioactive materials.

17. WARRANTY

a) Services: R&D warrants that the Services shall conform to the material aspects of the specifications set forth in the relevant scope of work document agreed to in writing by R&D and Customer. In the event that the Services fail to materially conform to such specifications, R&D shall re-perform that part of the non-conforming Services, provided R&D is notified thereof by Customer prior to R&D’s relevant personnel departure from the Work Site.
b) Equipment: R&D warrants for a limited time period of twelve (12) months commencing on delivery that the Equipment will be of the types specified by and agreed to in writing by R&D and Customer, and will be in good operating condition.
c) Goods: R&D warrants for a limited time period of twelve (12) months commencing on delivery that the Goods shall conform to R&D’ published specifications or the specifications agreed to in writing by R&D and Customer. If any of the Goods fail to conform to such specifications upon inspection by Customer, R&D, at its option, shall repair or replace the non-conforming Goods with the type originally furnished or issue credit to the Customer, provided R&D is notified thereof in writing within thirty (30) days after delivery of the particular Product(s).
d) Specialty Goods: In the event R&D is to provide Goods to Customer based upon Customer’s specific request that R&D develop, manufacture, test or put to use Goods that are intended to satisfy a unique need identified by Customer and are not Goods which are in the usual product range of R&D at the time of order (“Specialty Goods”), Customer hereby recognizes and agrees that the Specialty Goods being provided do not necessarily have or contain the same or similar characteristics as R&D’ “standard” Goods, including, but not limited to, a historical performance against which future performance can be measured. In developing, manufacturing, testing and putting to use any Specialty Goods, R&D will be relying upon information and specifications provided by Customer relating to the unique needs to Customer. As such, R&D shall have no responsibility for the design, manufacture or engineering of any such Specialty Goods, even though R&D may have participated in the development and manufacture of the Specialty Goods, or for any Customer-furnished materials, information and specifications. If, upon inspection by Customer, any of the Specialty Goods for a limited time period of twelve (12) months commencing on delivery fail to meet the specifications agreed to in writing by Customer and R&D, then R&D shall, at its option, repair or replace the non-conforming Specialty Goods with (i) the type originally furnished to Customer, or (ii) substituted Goods having R&D’ “standard” specifications and qualifications.
e) R&D’s warranty obligations hereunder shall not apply if the non-conformity was caused by (i) Customer’s failure to properly store or maintain the Goods or Equipment, (ii) abnormal well conditions, abrasive materials, corrosion due to aggressive fluids or incorrect specifications provided by Customer, (iii) unauthorized alteration or repair of the Goods or Equipment, (iv) the Goods or Equipment are lost or damaged while on Customer’s site due to Customer’s or any third party’s negligence, vandalism or force majeure (including, but not limited to, lightning), or (v) use or handling of the Goods or Equipment by Customer in a manner inconsistent with R&D’ recommendations. Further, R&D’ warranty obligations shall terminate if Customer fails to perform its obligations under this or any other Agreement between the parties.
f) All non-conforming Goods and Equipment shall be delivered to the service facility designated by R&D. Any parts for which R&D provides replacement under this warranty shall become the property of R&D. With regard to materials or equipment furnished by third party vendors and/or suppliers, R&D's liability therefor shall be limited to the
assignment of such third party vendor's or supplier's warranty to Customer, to the extent such warranties are assignable.
g) Interpretations, research, analysis, recommendations, advice or interpretational data (“Interpretations and/or Recommendations”) furnished by R&D in relation hereto are opinions based upon inferences from measurements, empirical relationships and assumptions, and industry practice, which inferences, assumptions and practices are not infallible, and with respect to which professional geologists, engineers, drilling consultants, and analysts may differ. Accordingly, R&D does not warrant the accuracy, correctness, or completeness of any such Interpretations and/or Recommendations, or that Customer’s reliance or any third party’s reliance on such Interpretations and/or Recommendations will accomplish any particular results. Customer assumes full responsibility for the use of such interpretations and/or recommendations and for all decisions based thereon (including, without limitation, decisions based on any oil and gas evaluations, production forecasts and reserve estimates, furnished by R&D to Customer hereunder), and customer hereby agrees to release, defend, indemnify and hold R&D Indemnitees harmless from Claims arising out of the use of such interpretations and/or recommendations.
h) R&D will endeavor to transmit data to Customer as accurately and securely as practicable in accordance with current industry practice. Notwithstanding the foregoing, R&D does not warrant the accuracy of data transmitted by electronic processes and will not be responsible to Customer for accidental or intentional interception of such data by others.
i) This Section 16 sets forth Customer’s sole remedies and R&D’s only obligation with regard to defective or non-conforming Services, Equipment or Goods. Except as is otherwise expressly provided pursuant to the provisions of this Section 17, R&D makes no warranty or guarantee of any kind, express or implied, including no implied warranty of merchantability or fitness for a particular purpose, regarding any services performed or equipment or products supplied by R&D hereunder. In no event shall R&D be liable for rig time incurred by Customer Indemnitees as a result of defective or non-conforming Services, Equipment or Products. Liability for loss or damage to Equipment, Goods or Tools is set forth in Section 12.

18. CHANGE OF DESIGN

R&D expressly reserves the right to change or modify the design and construction of any of its Goods and/or Equipment without obligation to furnish or install such changes or modifications on Goods and/or Equipment previously or subsequently sold.

19. PATENTS

R&D warrants to the best of its knowledge that the use or sale of Equipment or Goods hereunder will not infringe valid patents of others by reason of the use or sale of such Equipment or Goods per se, and hereby agrees to hold Customer harmless against judgment for damages for infringement of any such patent, provided that Customer shall promptly notify R&D in writing upon receipt of any claims for infringement, or upon the filing of any such suit for infringement, whichever first occurs, and shall afford R&D full opportunity, at R&D' option and expense, to answer such claims or threat of suit, assume the control of the defense of such suit, and settle or compromise same in any way R&D sees fit. R&D does not warrant that such Equipment or Goods: (i) will not infringe any such patent when not of R&D's manufacture, or specially made, in whole or in part, to the Customer’s design specifications; or (ii) if used or sold in combination with other materials or apparatus or used in the practice of processes, will not, as a result of such combination or use, infringe any such patent, and R&D shall not be liable and does not hold Customer harmless for damages or losses of any nature whatsoever resulting from actual or alleged patent infringement arising pursuant to (i) and (ii) above. This paragraph states the entire responsibility of R&D concerning patent infringement (and the Customer hereby assigns to R&D any future right it may have hereto).

20. INTELLECTUAL PROPERTY RIGHTS

All Intellectual Property Rights including but not limited to patents, copyright and related rights, trade marks, rights in designs, computer software, know how and trade secrets (“Intellectual Property Rights”), contained within or in relation to the Equipment, Goods and Services are and shall remain R&D's sole and exclusive property together with any development, modification, abridgment, transformation, revision, recasting or improvement of or relating thereto.

21. CONFIDENTIALITY

Each party shall maintain all data and information, including information contained in Intellectual Property Rights, obtained from the other party in strict confidence, subject only to disclosure required by law or legal process. In the event that R&D owns copyrights to, patents to, or has filed patent applications on, any technology related to the Services, Goods or Equipment furnished by R&D hereunder, and if Customer makes any improvements on such technology, then such improvements shall not fall within the confidentiality obligations of R&D included herein, and R&D shall own all such improvements, including drawings, specifications, calculations and other documents. The design, construction, application and operation of R&D' Services, Equipment and Goods embody Intellectual Property Rights and confidential information. Customer shall maintain this information in strict confidence and shall not disclose it to others, subject only to disclosure required by law or legal process. To the extent permissible by law, Customer shall not resell the Goods or Equipment (or drawings related thereto) to others or reverse engineer or permit others to reverse engineer, for the purpose of manufacturing, similar Goods or Equipment.

22. TERMINATION

a) If Customer ceases trading or threatens to cease trading or if Customer passes a resolution or the court makes an order that it should be wound up or that an administrator be appointed (otherwise than for the purposes of amalgamation or reconstruction previously approved in writing by R&D); or if Customer makes a composition or an arrangement with its creditors, or if a receiver or manager or administrator on behalf of a creditor is appointed, or if circumstances arise which entitle the court or a creditor to appoint a receiver, manager or administrator or which entitle the court to make a winding up order; or if Customer takes or suffers any similar or analogous action in consequence of debt or commits any breach of this or any other contract between R&D and Customer; or if R&D reasonably believes that any of the above events is likely to occur; R&D may without prejudice to any of its other rights terminate this Agreement with immediate effect by notice in writing to Customer.
b) In the event of termination of this Agreement, however arising, Customer shall promptly return to R&D, at its designated onshore service facility, all Goods then remaining in the ownership of R&D and Equipment and proprietary information supplied by R&D which is in Customer's possession or under its control.

23. FORCE MAJEURE

If either party is unable by reason of Force Majeure to carry out any of its obligations under this Agreement, other than obligations to pay money or to provide indemnity and defense, then on such party giving notice and particulars in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. “Force Majeure” shall include any event that is beyond the reasonable control of the party so affected including, without limitation, acts of God, laws and regulations, government action, war, civil disturbances, hijack, piracy, criminal action by a third party, threats or acts of terrorism, strikes and labor problems, delays of vendors or carriers, lightning, fire, flood, washout, storm, cyclone, breakage or accident to equipment or machinery, and shortage of raw materials. In the event that any suspension due to Force Majeure exceeds thirty (30) consecutive days, either party may terminate this Agreement by written notice to the other party and Customer shall be liable for demobilization and any other reasonable costs incurred by R&D incidental to such termination.

24. INDEPENDENT CONTRACTOR

It is expressly understood that R&D is an independent contractor. R&D, its principals, partners, employees or subcontractors are not servants, agents or employees of Customer.R&D may subcontract work under these Services as it’s sole discretion.

25. ARBITRATION OF DISPUTES

This Agreement (and any question about its subsistence, effect or termination) is to be interpreted in accordance with the laws of Western Australia, except that body of laws controlling conflict of laws. In the event of a dispute arising out of or relating to this Agreement (including non-contractual disputes or claims), the parties shall first seek settlement of that dispute by negotiation between senior executives of the parties. If they are unable to settle the dispute within thirty (30) days, or such other period as the parties shall agree in writing, the dispute including any question regarding the subject matter of this Agreement, its existence, its validity or termination, and any non-contractual disputes or claims relating thereto shall exclusively be referred to and finally be resolved by arbitration pursuant to the Commercial Arbitration Act (WA) 2012 , which hereby is incorporated into this Agreement. The place of arbitration shall be Western Australia, and the proceedings shall take place in English. The initiation of arbitration proceedings, the proceedings and the award(s) shall be treated as Confidential Information. Nothing in this Agreement will be deemed as preventing either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as is necessary to protect either Party's name, proprietary information, trade secrets, know-how, or any other intellectual property rights.

26. EXPORT CONTROL

R&D and Customer agree to be subject to applicable laws, rules, regulations and decrees of any governmental or regulatory body having jurisdiction over the Services, Equipment or Goods to be provided by R&D or the Work Site or that may otherwise be applicable to R&D’ or Customer’s performance under this Agreement.
Customer acknowledges that Equipment, Services, Goods and/or related technical data covered by this Agreement may be subject to U.S. and/or other foreign trade controls. Customer agrees that it will not sell, re-export or transfer Equipment, Goods and/or related technical data except in full compliance with all governmental requirements including but not limited to economic sanctions and export controls administered by the U.S. Department of Treasury, U.S. Department of Commerce and U.S. Department of State. Customer agrees to comply with all R&D requests for trade compliance information, statements, and other assurances including without limitation requests for End-User and Routed Transaction certifications. Any breach of this provision shall be deemed a material breach of this Agreement and sufficient basis for R&D to reject any or all orders or to terminate the Agreement.
R&D reserves the right to refuse to fulfill any order or otherwise perform under this Agreement if R&D in its sole discretion determines that such action may violate any law or regulation. Customer agrees that such refusal, cancellation, or termination of the Agreement by R&D will not constitute a breach of R&D’s obligations under this Agreement and Customer hereby waives Claims against R&D related to such refusal, cancellation, or termination.

27. ANTI-CORRUPTION

a) R&D represents and warrants that, in connection with this Agreement or the business resulting therefrom:
i. R&D is knowledgeable about anti-bribery laws applicable to the performance of this Agreement and will comply with all such laws;
ii. neither R&D nor a any of its subsidiaries, affiliated or related companies have made, offered or authorized or will make, offer or authorize any payment, gift, promise or other advantage, whether directly or through any other person or entity, to or for the use or benefit of any government official or any person where such payment, gift, promise or other advantage would comprise a facilitation payment; and/ or violate the anti-bribery laws;
b) R&D undertakes to immediately notify Customer if in connection with this Agreement or the business resulting therefrom it receives or becomes aware of any request from a government official or any person for any payment, gift, promise or other advantage of the type mentioned above.
c) Customer confirms that its appointment of R&D was expressly made on the basis that anti-bribery laws and would not be violated. R&D acknowledges that the contents of this Agreement may be disclosed by Customer to third parties for the purposes of demonstrating compliance with this Article.
d) R&D represents and warrants that neither it nor any of its any of its subsidiaries, affiliated or related companies is a government official or other person who could assert illegal influence on behalf of Customer or its any of its subsidiaries, affiliated or related companies. If any of the foregoing becomes a government official, R&D shall promptly notify Customer.
e) Upon execution of this Agreement, each annual anniversary of the Agreement and at any other time upon Customer’s request, R&D will promptly provide Customer with a written statement of R&D’s compliance with anti-bribery laws upon request.

28. ASSIGNMENT

R&D Group shall have the right to assign this Agreement to any R&D Group member without the consent of Customer.

29. GENERAL

Failure of Customer or R&D to enforce any of the terms and conditions of this Agreement shall not prevent a subsequent enforcement of such terms and conditions or be deemed a waiver of any subsequent breach. Should any provision of this Agreement, or a portion thereof, be unenforceable or in conflict with governing country, state, province, or local laws, then the validity of the remaining provisions, and portions thereof, shall not be affected by such unenforceability or conflict, and this Agreement shall be construed as if such provisions, or portion thereof, were not contained herein. This Agreement contains all representations of the parties and supersedes all prior oral or written agreements or representations. Customer acknowledges that it has not relied on any representations other than those contained in this Agreement. This Agreement shall not be varied, supplemented, qualified, or interpreted by any prior course of dealing between the parties or by any usage of trade and may only be amended by an agreement executed by both parties. In the event of any conflict between this Agreement and any other document including, without limitation, manuals, handbooks, maintenance libraries, and/or other publications in whatever form including those listed in R&D’s price list/s or supplied in connection with the Services, Goods or Equipment, any appendices, supplemental terms and conditions agreed in writing between the parties, and any addenda thereto, the terms of this Agreement shall prevail unless any subsequent documentation expressly states otherwise.