oil stock ticketing - onshore contract (docx 148kb) · web view) under this agreement is not paid...

ONSHORE OIL STOCK TICKET CONTRACTProcurement Number (PRN): 2000003930

Commonwealth of Australia as represented by the Department of Industry, Science, Energy and ResourcesABN 74 599 608 295 (Department)

[Insert name] (Supplier)

Version 2

TABLE OF CONTENTS

1 DEFINITIONS AND CONSTRUCTION......................................................................................................1

1.1 Defined terms.............................................................................................................................................

1.2 Construction...............................................................................................................................................

2 SERVICES TO BE PROVIDED UNDER THIS AGREEMENT...................................................................5

3 TERM 5

4 CONTRACTED QUANTITY.......................................................................................................................5

4.1 Contracted Quantity...................................................................................................................................

4.2 Storage Location of Contracted Quantity...................................................................................................

4.3 Compliance with Sanctions........................................................................................................................

5 MONTHLY FEE..........................................................................................................................................5

5.1 Monthly Fee................................................................................................................................................

5.2 Monthly Fee payable to the Supplier..........................................................................................................

5.3 Effect of exercise of Purchase Option or Release Option on Supplier’s payment of Monthly Fee.............

5.4 Monthly Fee invoices..................................................................................................................................

5.5 Invoice disputes..........................................................................................................................................

6 PURCHASE OPTION AND RELEASE OPTION.......................................................................................8

6.1 Grant of option to purchase........................................................................................................................

6.2 Grant of option to release reservation obligation........................................................................................

6.3 Circumstances in which the Department may exercise the Purchase Option or Release Option..............

6.4 Confirmation of exercise of Purchase Option or Release Option...............................................................

7 EXERCISE OF PURCHASE OPTION.......................................................................................................9

7.1 Notice for exercise of the Purchase Option................................................................................................

7.2 Supplier to deliver amount of Contracted Quantity purchased...................................................................

7.3 Change to Delivery Location in Force Majeure..........................................................................................

7.4 Agreement to change to Type of Product of amount of Contracted Quantity to be Delivered..................

7.5 Department’s Transportation Vessel to take delivery of Product subject to Supplier’s approval..............

7.6 Terms for purchase..................................................................................................................................

7.7 Purchase Price and Invoice......................................................................................................................

8 NOTICE FOR EXERCISE OF THE RELEASE OPTION.........................................................................11

9 COMPLIANCE WTH LAWS, SUB-CONTRACTING AND COOPERATION...........................................11

9.1 Compliance with Laws..............................................................................................................................

9.2 Engaging sub-contractors........................................................................................................................

9.3 Co-operation with Department personnel and contractors.......................................................................

10 RISK AND TITLE.....................................................................................................................................12

10.1 Title and risk.............................................................................................................................................

10.2 Title and risk where the Department exercises the Purchase Option.......................................................

Onshore Oil Stock Ticket Contract, Version 2

11 FORCE MAJEURE..................................................................................................................................12

11.1 Definition of Force Majeure......................................................................................................................

11.2 No liability where there is a Force Majeure..............................................................................................

11.3 Notice of Force Majeure...........................................................................................................................

11.4 Suspension of Monthly Fee and Termination...........................................................................................

11.5 No extension of Term...............................................................................................................................

12 OTHER INVOICES, PAYMENTS AND TAXES.......................................................................................13

12.1 Invoices for other amounts.......................................................................................................................

12.2 Payment...................................................................................................................................................

12.3 Late payment............................................................................................................................................

12.4 Monthly Fee and Purchase Price are exclusive of value added taxes.....................................................

12.5 Co-operation and assistance....................................................................................................................

13 RECORDS AND ACCOUNTS.................................................................................................................14

13.1 Books and records...................................................................................................................................

13.2 Audit rights - general................................................................................................................................

13.3 Audit rights – access................................................................................................................................

14 LIMITATION OF LIABILITY AND INDEMNITY.......................................................................................15

14.1 General.....................................................................................................................................................

14.2 Cost of replacement stocks......................................................................................................................

14.3 Indemnity..................................................................................................................................................

15 TERMINATION........................................................................................................................................16

15.1 Termination by the Department for cause................................................................................................

15.2 Suspension of obligation to pay Monthly Fee...........................................................................................

15.3 Termination by the Supplier.....................................................................................................................

15.4 Survival of rights and obligations..............................................................................................................

16 CONFIDENTIALITY.................................................................................................................................17

16.1 Confidential Information not to be disclosed.............................................................................................

16.2 Exceptions to obligations..........................................................................................................................

16.3 Obligations on disclosure.........................................................................................................................

16.4 No reduction in privacy obligations...........................................................................................................

17 DISPUTE RESOLUTION.........................................................................................................................19

17.1 No arbitration or court proceedings..........................................................................................................

17.2 Notification................................................................................................................................................

17.3 Parties to resolve Dispute........................................................................................................................

17.4 Appointment of arbitrator..........................................................................................................................

17.5 Role of arbitrator and conduct of arbitration.............................................................................................

17.6 Confidentiality...........................................................................................................................................

17.7 Obligations continue.................................................................................................................................

17.8 Urgent remedies.......................................................................................................................................


18 NOTICES.................................................................................................................................................20

18.1 Address for notices...................................................................................................................................

18.2 Receipt of notices.....................................................................................................................................

19 REPLACEMENT INDICES.......................................................................................................................21

19.1 Unavailable Index.....................................................................................................................................

19.2 Determining a replacement index.............................................................................................................

19.3 Appointing an Expert................................................................................................................................

20 GENERAL PROVISIONS........................................................................................................................22

20.1 Variation...................................................................................................................................................

20.2 Assignment...............................................................................................................................................

20.3 No partnership..........................................................................................................................................

20.4 Costs........................................................................................................................................................

20.5 Severing unlawful terms...........................................................................................................................

20.6 No waiver.................................................................................................................................................

20.7 Announcements.......................................................................................................................................

20.8 Further Action...........................................................................................................................................

20.9 Governing law..........................................................................................................................................

20.10 Entire Agreement.....................................................................................................................................

20.11 Counterparts.............................................................................................................................................

SCHEDULE 1 – CONTACT AND TRANSACTION DETAILS.................................................................................

SCHEDULE 2 - FORM OF EXERCISE NOTICE.....................................................................................................

SCHEDULE 3 – ADDITIONAL REQUIREMENTS...................................................................................................

APPENDIX ONE - GENERAL TERMS AND CONDITIONS....................................................................................


Date: 2018

PARTIES

Commonwealth of Australia as represented by the Department of Industry, Science, Energy and Resources ABN 74 599 608 295 or any other Agency that administers this Agreement from time to time (Department)

[Insert name of Supplier] a duly incorporated company with its registered office in [Insert address of registered office] (Supplier)

BACKGROUND

Australia is a member of the International Energy Agency (IEA) and a signatory to the Agreement on an International Energy Program (IEP Agreement). The Department issued a Request for Tender (RFT) in [Insert Date of issue of RFT] for tenders to hold oil stock tickets for the Department to assist the Australian Government to meet its obligations under the IEP Agreement. Based on the information contained in the Supplier’s response to the RFT, the Department and the Supplier have agreed on the terms set out in this Agreement to the non-exclusive provision of oil stock tickets by the Supplier to the Department.

THE PARTIES AGREE as follows:

1 DEFINITIONS AND CONSTRUCTION

1.1 Defined terms

In this Agreement, unless the context requires otherwise:

Agency means

(a) a body corporate or an unincorporated body established or constituted for a public purpose by Commonwealth legislation, or an instrument made under that legislation (including a local authority);

(b) a body established by the Governor-General or by a Minister of State of the Commonwealth including departments; or

(c) an incorporated company over which the Commonwealth exercises control.

Agreement means this Onshore Oil Stock Ticket Contract, including the Schedules, Appendices and any agreed variations to it.

CERM Decision means the Decision on Stocks and Supply Disruptions (IEA/GB(84)17) made by the IEA Governing Board on 11 July 1984.

Confidential Information means the identity of the Supplier, the contents of Schedule 1 of this Agreement and any information that is by its nature confidential and disclosed by a party (disclosing party) to the other party in connection with this Agreement and that the disclosing party makes known is confidential or that the receiving party knows or would reasonably expect to be confidential, but excluding any information that is already in the public domain (otherwise than as a result of a breach of this Agreement or any other confidentiality obligation).

Contracted Quantity means the quantity of stocks specified in item 2 of the Transaction Details for the Type of Product in SCHEDULE 1 less the aggregate quantity of all stocks in respect of which

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the Department has from time to time exercised the Purchase Option or the Release Option in accordance with clauses 6.1 and 7.

Delivery Location means the location to which the Supplier must deliver the Product specified in the Purchase Notice issued under clause 7.1, being either the Primary Delivery Location or the Secondary Delivery Location, or as changed in accordance with clause 7.3 and, as the context requires, means the relevant terminal and berth at that location.

Department Officer Representative means the person named as the Department Officer Representative in the Contact Details of Schedule 1 or the person from time to time holding, occupying or performing the position of Senior Executive Service Band 1, Energy International Implementation Branch, Energy Security and Efficiency Division of the Department, or any other Senior Executive Service Band 1 Employee of the Department responsible for assisting in the administration of this Agreement from time to time.

Department Senior Representative means the person named as the Department Senior Representative in the Contact Details Schedule 1 or the person from time to time holding, occupying or performing the position of Senior Executive Service Band 2, Energy Security and Efficiency Division of the Department, or any other Senior Executive Service Band 2 Employee of the Department responsible for assisting in the administration this Agreement from time to time.

Dispute means any matter relating to this Agreement on which the parties fail to agree.

Electronic Communication has the meaning given in the Electronic Transactions Act 1999 (Cth).

Expert means the person appointed as such under clause 19.3.

General Terms and Conditions means the general terms and conditions which govern the sale and purchase of the Product specified in the Purchase Notice where the Department exercises the Purchase Option under clauses 6.1 and 7 and attached at Appendix One.

IEA means the International Energy Agency.

IEP Agreement means the Agreement on an International Energy Program of 18 November 1974, as amended, including the decisions of the IEA Governing Board made pursuant to that agreement.

Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force in Australia from time to time.

LIBOR means the three month London Interbank Offered Rate for USD deposits, as quoted on Reuters’ page “LIBOR 01” or other generally acceptable source publishing this rate, at 11.00 a.m., London time, on the date that was two Working Days prior to the due date of any payment to which any interest period relates.

Monthly Fee means the fee that is payable by the Department to the Supplier under clause 5.1 as specified in item 7 of the Transaction Details for the Type(s) of Product in Schedule 1.

Personal Information has the meaning given to that term in the Privacy Act.

Primary Delivery Location means the location specified in item 4 of the Transaction Details for the Type of Product in Schedule 1, which the Department may specify as the Delivery Location in the Purchase Notice under clause 7.1(d).

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Priority Tranche means the Tranche which has the highest Monthly Fee as specified in item 7 of the Transaction Details for the Type of Product in Schedule 1.

Privacy Act means the Privacy Act 1988 (Cth).

Product means the Type of Product, Specification and quantity of stock specified in the Purchase Notice to be sold by the Supplier, and purchased by the Department.

Purchase Notice means the notice in the form of Schedule 2 of this Agreement, issued in respect of the Department’s exercise of the Purchase Option.

Purchase Option has the meaning given to that term in clause 6.1.

Purchase Price means the price specified in item 8 of the Transaction Details for the Type of Product in Schedule 1.

Release Option has the meaning given to that term in clause 6.2.

Resolution Institute means the alternate dispute resolution body of that name (and formerly known as the Institute of Arbitrators and Mediators Australia and LEADR), or its replacement from time to time.

Sanctions Laws means the economic and trade embargoes and sanctions laws, regulations, rules or restrictive measures administered, enacted or enforced by the Office of Foreign Assets Control of the United States Department of Treasury, the United States Department of State, United Nations Security Council, any United Nations Security Council Sanctions Committee, the European Union, the Commonwealth Government or any other relevant governmental or regulatory authority.

Secondary Delivery Location means the location specified in item 5 of the Transaction Details for the Type of Product in Schedule 1 which the Department may specify as the Delivery Location in the Purchase Notice under clause 7.1(d).

Specification means if:

(a) the Product is a refined petroleum product, the relevant grade and specification set out in the Purchase Notice; or

(b) the Product is crude oil, the quality usually made available at the Delivery Location of the type and grade of crude set out in the Purchase Notice.

Storage Facility means the facility specified in item 3 of Schedule 1.

Storage Location means the location specified in item 3 of the Transaction Details for the Type of Product in Schedule 1.

Storage Tank means the tank specified in item 3 of Schedule 1.

Supplier Officer Representative means the person named as the Supplier Officer Representative in the Contact Details of Schedule 1, or a person of an equivalent management position, responsible for assisting the Supplier in the administration of this Agreement from time to time.

Supplier Senior Representative means the person named as the Supplier Senior Representative in the Contact Details of Schedule 1, or a person of an equivalent management position, responsible

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for administering this Agreement on behalf of the Supplier from time to time. [Drafter’s Note: This person is to be more senior than the Supplier Officer Representative for the purposes of clause 17.3, and should be CEO, agency head or equivalent level.]

Term means the term of this Agreement specified in item 1 of the Transaction Details for the Type of Product in Schedule 1.

Tranche means Tranche One Stock and Tranche Two Stock. [Drafter’s Note: Where there is more than two Tranches, they should be added to this definition.]

Tranche One Stock means the quantity of stock specified as Tranche One Stock in item 2 of the Transaction Details for the Type of Product in Schedule 1.

Tranche Two Stock means the quantity of stock specified as Tranche Two Stock in item 2 of the Transaction Details for the Type of Product in Schedule 1.

Transaction Details means the details specified for the Type(s) of Product in Schedule 1.

Transportation Vessel means the vessel or vehicle to be used by or on behalf of the Department for taking Delivery of the Product and which is approved by the Supplier in accordance with clause 7.5 of the Agreement.

Type of Product means the oil stock product or products, including the relevant product grade or specification, specified in item 6 of the Transaction Details for the Type of Product in Schedule 1, or as changed in accordance with clause 7.4.

Working Day means a week day in which banks are open for business in Canberra, New York and the Storage Location.

1.2 Construction

In the construction of this Agreement, unless the context requires otherwise:

Approvals and consents: a party may, in its discretion, give conditionally or unconditionally or withhold any approval or consent under this Agreement.

Calendar day: anything required by this Agreement to be done on a calendar day which is not a Working Day, may be done effectually on the next Working Day.

Currency: except where this Agreement expressly states otherwise, a reference to any monetary amount is to Australian dollars.

Negative Obligations: a reference to a prohibition against doing anything includes a reference to not permitting, suffering or causing that thing to be done.

Quantities: a reference to quantity is a reference to metric tonnes.

Singular and plural: the singular includes the plural and vice versa.

Statutes and Regulations: a reference to an enactment or any regulations is a reference to that enactment or those regulations as amended, or to any enactment or regulations substituted for that enactment or those regulations.

Working Days: anything required by this Agreement to be done on a day which is not a Working Day may be done effectually on the next Working Day.

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2 SERVICES TO BE PROVIDED UNDER THIS AGREEMENT

The Supplier agrees to reserve the Contracted Quantity for the Department, in accordance with the terms of this Agreement, and hold the Contracted Quantity in such a manner as will allow it to be applied towards Australia's obligations under the IEP Agreement, for the Term. At any time during the Term, but subject to the condition in clause 6.3, the Department may exercise the Purchase Option or the Release Option in clause 6 in relation to all or part of the Contracted Quantity.

3 TERM

This Agreement continues for the Term, or if there is more than one Term, the longer of the Terms specified in the Transaction Details in Schedule 1, unless terminated earlier in accordance with its terms.

4 CONTRACTED QUANTITY

4.1 Contracted Quantity

The Supplier must ensure that:

(a) the Contracted Quantity is the Type of Product; and

(b) the Contracted Quantity remains available for purchase by and delivery to the Department in accordance with this Agreement at all times during the Term and that such Contracted Quantity may lawfully be included to discharge the obligations of Australia under the IEP Agreement.

4.2 Storage Location of Contracted Quantity

The Supplier must store the Contracted Quantity at the Storage Location.

4.3 Compliance with Sanctions

The Supplier represents and covenants that the Contracted Quantity does not, and will not at any point during the Term, contain any stocks that have been purchased, shipped, exported, imported, produced, refined, or stored in breach of any applicable Sanctions Laws.

5 MONTHLY FEE

5.1 Monthly Fee

In consideration for the provision of the services referred to in clause 2, the Department agrees to pay the Supplier the Monthly Fee in accordance with this clause 5.

5.2 Monthly Fee payable to the Supplier

(a) [Option A: Drafter’s Note: Option A below to be used when the Type(s) of Product only have a single tranche of stock. Delete clause 5.2(b).]

The Department must pay the Supplier the Monthly Fee during the Term.

[Option B: Drafter’s Note: Option B below to be used when the Type(s) of Product have multiple tranches of stocks that are priced at different monthly amounts (and specified in items 2 and 7 of the Transaction Details for the Type(s) of Product in Schedule 1). This draft contemplates two tranches. Further tranches can be added

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to Schedule 1 and Schedule 2 and the definition of Tranche. Ensure that both clauses 5.2(a) and (b) are included to provide discretion for the Department to determine the tranche in respect of which it wishes to exercise a Purchase or Release Option where there are more than two tranches provided.]

(a) The Department must pay the Supplier the Monthly Fee during the Term for each Tranche of the Contracted Quantity.

(b) If the Department exercises the Purchase Option or the Release Option:

(i) it may, acting at its sole discretion, choose to do so in respect of all or part of the Contracted Quantity, regardless of Tranche; and

(ii) for the purposes of calculating the Monthly Fee:

A. the Purchase Option or Release Option will be deemed to have been exercised over the Priority Tranche first; and

B. when the Priority Tranche is deemed to have been fully purchased and/or released, the Purchase Option or Release Option will then be deemed to have been exercised over the Tranche with the next highest Monthly Fee as specified in item 7 of the Transaction Details for the Type of Product in Schedule 1 (and such Tranche will become the Priority Tranche until fully purchased and/or released).

[Option C: Drafter’s Note: Option C below to be used when there is more than one Type of Product and:

at least one Type of Product has multiple tranches of stocks priced at different monthly amounts (and specified in items 2 and 7 of the Transaction Details for the Type of Product in Schedule 1); and

at least one Type of Product has a single tranche of stock. For the Type(s) of Product with multiple tranches, this draft contemplates two tranches for that Type of Product. Further tranches can be added to Schedule 1 and Schedule 2 and the definition of Tranche. Ensure that both clauses 5.2(a) and (b) are included to provide discretion for the Department to determine the tranche in respect of which it wishes to exercise a Purchase or Release Option where there are more than two tranches provided.]

(a) The Department must pay the Supplier the Monthly Fee during the Term for:

(i) the [Insert name of Type(s) of Product]; and [Drafter’s note: Insert the name of the Type(s) of Product with only one tranche.]

(ii) for each Tranche of the Contracted Quantity for the [Insert name of Type(s) of Product]. [Drafter’s note: Insert the name of the Type(s) of Product with multiple tranches of stock.]

(b) If the Department exercises the Purchase Option or the Release Option:

(i) it may, acting at its sole discretion, choose to do so in respect of all or part of the Contracted Quantity, regardless of Tranche; and

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(ii) for the purposes of calculating the Monthly Fee for the Tranches of the Contracted Quantity of the [Insert name of Type(s) of Product]: [Drafter’s note: Insert the name of the Type(s) of Product with multiple tranches of stock.]

A. the Purchase Option or Release Option will be deemed to have been exercised over the Priority Tranche first; and

B. when the Priority Tranche is deemed to have been fully purchased and/or released, the Purchase Option or Release Option will then be deemed to have been exercised over the Tranche with the next highest Monthly Fee for the [Insert name of Type(s) of Product] (and such Tranche will become the Priority Tranche until fully purchased and/or released). [Drafter’s note: Insert the name of the Type(s) of Product with multiple tranches of stock.]

(c) Subject to clause 12.4, the Monthly Fee will not be increased on account of, or in the event of, the imposition of any taxes, duties or levies in respect of the reservation by the Supplier of the Contracted Quantity in accordance with this Agreement, which will be the Supplier’s sole responsibility.

5.3 Effect of exercise of Purchase Option or Release Option on Supplier’s payment of Monthly Fee

If the Department exercises the Purchase Option or the Release Option under clause 6 in relation to:

(a) all of the Contracted Quantity, the Monthly Fee will cease to be payable in respect of any calendar months after the date of purchase or release (as the case may be); or

(b) only part of the Contracted Quantity then the Monthly Fee in respect of any calendar months after the date of that partial purchase or partial release (as the case may be) will be paid on the remaining quantity only.

5.4 Monthly Fee invoices

The Supplier will invoice the Department for the Monthly Fee monthly in advance by the first day of the calendar month to which the invoice relates. The Department must pay the amount specified in the Supplier’s invoice by the later of the fifteenth calendar day of the calendar month to which the invoice relates, and the eleventh Working Day after receipt of the relevant invoice by the Department.

5.5 Invoice disputes

(a) If either party disputes the accuracy of any invoice or other matter relating to any payment under this Agreement, then:

(i) that party may withhold the disputed part of the payment until the dispute is resolved but must pay any undisputed amount in full subject to serving a notice to the other party under clause 5.5(b); and

(ii) the parties will settle the dispute over the disputed amount in accordance with this clause 5.5.

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(b) If a party has a dispute under clause 5.5(a):

(i) it must serve notice to the other party disputing the correctness of the relevant invoice and identifying its alleged error; and

(ii) the parties must use reasonable endeavours to mutually resolve the dispute within 45 calendar days after notice of the dispute is received under clause 5.5(b)(i), after which any unresolved dispute may be submitted by either party for resolution in accordance with clause 17.

(c) Following resolution of any dispute under this clause 5.5, the amount of any underpayment or overpayment must be paid to Department or Supplier (as applicable) together with interest thereon in accordance with clause 12.3.

6 PURCHASE OPTION AND RELEASE OPTION

6.1 Grant of option to purchase

The Supplier irrevocably grants to the Department an option to purchase the Contracted Quantity during the Term (Purchase Option). The Department may exercise the Purchase Option in relation to all of the Contracted Quantity, or in relation to such amount of the Contracted Quantity as the Department notifies to the Supplier on one or more occasions in accordance with clause 7.

6.2 Grant of option to release reservation obligation

The Supplier irrevocably grants to the Department an option to release the Supplier from its obligation under this Agreement to reserve the Contracted Quantity for the Department during the Term (Release Option). The Department may exercise the Release Option in relation to all of the Contracted Quantity, or in relation to such amount of the Contracted Quantity as the Department notifies to the Supplier on one or more occasions in accordance with clause 8. On and from the date of release, the relevant stocks will become part of the Supplier’s commercial stocks to be dealt with at the Supplier’s discretion and may become available to either the local or international oil markets by virtue of the Supplier’s commercial activities. For the avoidance of doubt, the Department has no obligation in relation to any stocks in respect of which the Department has exercised the Release Option, including any obligation to take delivery, market, or pay any amount.

6.3 Circumstances in which the Department may exercise the Purchase Option or Release Option

The Department may exercise the Purchase Option or the Release Option at any time during the Term if Australia’s obligations under the IEP Agreement or CERM Decision, to implement emergency measures (taking the form of collective action specified in the IEP Agreement or CERM Decision) to deal with a reduction or threatened reduction of petroleum supplies, have been activated.

6.4 Confirmation of exercise of Purchase Option or Release Option

The Department must, with any notice given by the Department under clauses 7.1 or 8, provide a letter from the Department Senior Representative stating that the circumstances in which the Department may exercise the Release Option or Purchase Option in accordance with clause 6.3 have been met.

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7 EXERCISE OF PURCHASE OPTION

7.1 Notice for exercise of the Purchase Option

If the Department decides to exercise the Purchase Option, the Department will notify the Supplier by notice substantially in the form attached as SCHEDULE 2 (Purchase Notice) of the following details of the Product that the Department will purchase:

(a) the quantity of the Contracted Quantity and whether multiple tranches of stock apply;

(b) the amount of each Type of Product (including grade/specification) of the Contracted Quantity;

(c) the date or dates on which the Department will purchase and the Supplier will deliver the Product to the Delivery Location, which date must not be earlier than 21 Working Days after the date of the Purchase Notice; and

(d) the Delivery Location to which the Supplier will deliver the Product, being either the Primary Delivery Location or the Secondary Delivery Location.

7.2 Supplier to deliver amount of Contracted Quantity purchased

Subject to clauses 7.3 and 7.4, if the Department issues a Purchase Notice under clause 7.1, the Supplier must deliver the Product, plus or minus a three per cent operational tolerance, to the Department or any nominee of the Department to the Delivery Location:

(a) on a FOB (as defined in Incoterms 2010) basis for any sea or inland waterway transport; and

(b) on a FCA (as defined in Incoterms 2010) basis for any other form of transport.

7.3 Change to Delivery Location in Force Majeure

(a) This clause 7.3 applies:

(i) without limiting any provision of clause 11; and

(ii) in the event that delivery by the Supplier to the Department (or its nominee), or purchase by the Department, of the Product to and from the Delivery Location specified in the Purchase Notice is wholly or substantially prevented by Force Majeure.

(b) The Department may by notice, in writing, change the Delivery Location to be the Primary Delivery Location or the Secondary Delivery Location, which ever location not specified in the Purchase Notice, and will notify the Supplier of:

(i) the date or dates on which the Department will purchase and the Supplier will deliver the relevant stocks at the changed location; and

(ii) no later than 5 Working Days prior to the date specified pursuant to clause 7.3(b)(i) or, if more than one date is specified, no later than 5 Working Days prior to each delivery date specified pursuant to clause 7.3(b)(i), the details for the delivery of the Product for the purposes of clause 7.2 and clause 7.5 will apply to such vessel nomination mutatis mutandis.

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(c) The agreement created by clause 7.6 will be deemed to be varied, without cost or charge to the Department, to reflect the Department’s notice under clause 7.3(b).

7.4 Agreement to change to Type of Product of amount of Contracted Quantity to be Delivered

(a) Where delivery by the Supplier to the Department, or purchase by the Department, of the Product in the Type of Product specified in a Purchase Notice is wholly or substantially prevented, either party may request, and the other party may in its absolute discretion agree, to change the Type of Product that can be used to discharge, in full or in part, the relevant obligations of the Supplier under this Agreement.

(b) If the parties have agreed to change the Type of Product under clause 7.4(a):

(i) the agreement created under clause 7.6 will be deemed to be varied based on the terms of the agreement between the parties to change the Type of Product; and

(ii) the Department will notify the Supplier:

A. of the date or dates on which the Department will purchase and the Supplier will deliver the relevant stocks of the changed Type of Product; and

B. no later than 5 Working Days prior to the date specified pursuant to clause 7.4(b)(ii)(A) or, if more than one date is specified, no later than 5 Working Days prior to each delivery date specified pursuant to clause 7.4(b)(ii)(A), the details for the delivery of the Product of the changed Type of Product for the purposes of clause 7.2 and clause 7.5 will apply to such vessel nomination mutatis mutandis.

7.5 Department’s Transportation Vessel to take delivery of Product subject to Supplier’s approval

(a) The Department will notify the Supplier of all relevant details of the Transportation Vessel to be used to take delivery of the Product no later than 5 Working Days prior to the date specified pursuant to clause 77.1(c) or, if more than one date is specified, no later than 5 Working Days prior to each delivery date specified pursuant to clause 77.1(c).

(b) By the close of business on the next Working Day after the Supplier receives the Department’s notice under clause 77.1(a), the Supplier will:

(i) notify the Department that the Transportation Vessel specified in the Department’s notice is approved (such approval not to be unreasonably withheld). If no notification is received by the Department within the required timeframe, the relevant Transportation Vessel will be deemed to have been approved by the Supplier; or

(ii) notify the Department that the Transportation Vessel specified in the Department’s notice is not approved by the Supplier. If notification is provided under this clause 7.5(b)(ii), the Department may specify an alternative Transportation Vessel and may, but is not obliged to, amend the delivery date(s) specified pursuant to clause 77.1(c). For the avoidance of doubt, any alternative

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Transportation Vessel specified by the Department in accordance with this clause 7.5(b)(ii) will be subject to the approval process set out in this clause 7.5.

7.6 Terms for purchase

If the Department exercises the Purchase Option by giving a Purchase Notice under clause 7, the sale and purchase of the Product will be governed by the General Terms and Conditions (with any agreed amendments), except to the extent that the General Terms and Conditions conflict with any of the terms of this Agreement (including without limitation clause 7.7), in which case the terms of this Agreement will prevail. A legally enforceable agreement for the sale by the Supplier and the purchase by the Department of the Product on the General Terms and Conditions will be automatically created upon the Department giving a Purchase Notice under clause 7, without the need for either party to sign any documents other than this Agreement.

7.7 Purchase Price and Invoice

The Department must pay the Purchase Price for any Product purchased under clauses 6.1 and 7 in accordance with the General Terms and Conditions.

8 NOTICE FOR EXERCISE OF THE RELEASE OPTION

If the Department decides to exercise the Release Option, the Department will notify the Supplier by notice substantially in the form attached as SCHEDULE 2 (Release Notice) of:

(a) the amount of the Contracted Quantity that the Supplier is no longer required to reserve for the Department under this Agreement;

(b) the amount of each Type of Product (including its Specification) that the Supplier is no longer required to reserve for the Department under this Agreement; and

(c) the date or dates on which the Supplier’s obligation to reserve the stock for the Department under this Agreement is released.

9 COMPLIANCE WTH LAWS, SUB-CONTRACTING AND COOPERATION

9.1 Compliance with Laws

The Supplier must, in carrying out its obligations under this Agreement, comply with all applicable Laws, all requirements set out in Schedule 3 and obtain and maintain all necessary permits, licences, authorisations, certificates and consents.

9.2 Engaging sub-contractors

(a) The Supplier must:

(i) not subcontract any aspect of the performance of its obligations under this Agreement without the prior written approval of the Department (not to be unreasonably withheld);

(ii) ensure that any subcontractor approved under this Agreement complies with clauses 9.1 (Compliance with Laws), 13 (Records and Accounts) and 16 (Confidentiality) of this Agreement; and

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(iii) other than to the extent agreed by the Department in writing, ensure that any other terms of any subcontract are consistent with the Supplier’s obligations under this Agreement.

(b) The Supplier is fully responsible for the performance of its obligations under this Agreement even if the Supplier subcontracts any aspect of these obligations.

(c) On request by the Department, the Supplier must promptly provide the Department with:

(i) the names of any of the Supplier’s subcontractors; and

(ii) other than to the extent agreed by the Department in writing, a copy of any contract relating to the engagement of the subcontractor.

9.3 Co-operation with Department personnel and contractors

The Supplier must:

(a) fully co-operate with the Department's personnel and other contractors; and

(b) use its best efforts to coordinate its activities so as to support and facilitate, in the Department's best interests, the timely and efficient completion of all work and other activities to be performed for the Department by any person.

10 RISK AND TITLE

10.1 Title and risk

Subject to clause 10.2, the Supplier retains title to, and risk in, the Contracted Quantity at all times during the Term.

10.2 Title and risk where the Department exercises the Purchase Option

If the Department exercises the Purchase Option in respect of Product under clause 6, title to, and risk in, the Product purchased will pass to the Department at the time of delivery in accordance with clause 7 and the General Terms and Conditions. Title in the Product will pass to the Department free of any liens, charges and encumbrances whatsoever.

11 FORCE MAJEURE

11.1 Definition of Force Majeure

Force Majeure means any circumstance not within a party’s reasonable control which arises from any act of God, drought, flood, earthquake, lightning strike, inclement weather or other natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations, nuclear, chemical or biological contamination or sonic boom, collapse of buildings, fire, explosion or accident, strike, lock-out or trade dispute, but does not include:

(a) the mere shortage of labour, materials, equipment or supplies unless caused by events which are themselves Force Majeure; or

(b) an oil crisis, a threatened oil crisis or any similar event.

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11.2 No liability where there is a Force Majeure

There will be no liability for non-performance of any obligation under this Agreement during the time and to the extent that such performance is wholly or substantially prevented by Force Majeure, provided the party claiming Force Majeure complies with clause 11.3.

11.3 Notice of Force Majeure

A party that wishes to claim the benefit of clause 11.2 must:

(a) as soon as practicable (but in any event within 48 hours of the Force Majeure), give notice and full details to the other party of:

(i) the Force Majeure; and

(ii) the extent of its inability to perform any of its obligations under this Agreement and the likely duration of such non- performance;

(b) use all reasonable endeavours to limit the effects of the Force Majeure;

(c) give the other party reasonable opportunity and assistance to investigate the cause and effects of the Force Majeure; and

(d) subject to clause 11.4, resume performance of its obligations under this Agreement as soon as reasonably possible.

11.4 Suspension of Monthly Fee and Termination

If by reason of Force Majeure a party has been unable to perform any material obligation under this Agreement:

(a) if the non-performing party is the Supplier, the Department’s obligation to pay the Monthly Fee will be suspended from the date of the Supplier’s notice under clause 11.3 until the date on which Force Majeure no longer prevents performance; and

(b) in any event, if the Force Majeure continues to prevent performance of any material obligation for a period of 30 calendar days or more, the other party may terminate this Agreement immediately upon notice to the non-performing party.

11.5 No extension of Term

Any suspension of obligations under this clause 11 will not extend the Term.

12 OTHER INVOICES, PAYMENTS AND TAXES

12.1 Invoices for other amounts

Any amounts that are payable by either party under this Agreement other than the Monthly Fee and Purchase Price, must be paid by not later than 30 calendar days after receipt of an invoice from the invoicing party.

12.2 Payment

All amounts that are payable by either party under this Agreement must be paid by electronic funds transfer in cleared funds to the bank account notified by the invoicing party. All payments

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must be made free of any deduction, set off or withholding. Notwithstanding any provision contained within the General Terms and Conditions, the Supplier is not entitled to request, and the Department is not required to provide, any form of security for payment or credit support in respect of the Monthly Fee, the Purchase Price for any stocks purchased under clauses 6.1 and 7, or any other obligation of the Department under or in connection with this Agreement.

12.3 Late payment

Where an amount that is payable by either party (the defaulting party) under this Agreement is not paid by the due date for payment, the defaulting party must pay the other party interest on that amount at LIBOR plus 2 per cent per annum for the period from the due date until the date of payment.

12.4 Monthly Fee and Purchase Price are exclusive of value added taxes

The Monthly Fee, and the Purchase Price (as determined in accordance with clause 7.7) for any stock purchased under clauses 6.1 and 7, are each exclusive of any applicable value added taxes which will be invoiced by the Supplier together with the Monthly Fee or the Purchase Price (as the case may be).

12.5 Co-operation and assistance

The Supplier will co-operate with and provide all reasonable assistance (including through the provision of information) to the Department in respect of the recovery by the Department of, or application for exemption from, any taxes, duties, levies, excises, imposts or similar charges paid or payable by the Department in connection with this Agreement. The Department will meet the Supplier’s reasonable costs of such co-operation and assistance, provided that the Supplier satisfies the Department with sufficient information to substantiate such costs.

13 RECORDS AND ACCOUNTS

13.1 Books and records

The Supplier must at its own cost:

(a) keep comprehensive, accurate and adequate books and records which contain sufficient detail to enable the Department to determine, at any time during the Term, whether all of the Contracted Quantity is and remains available for purchase by the Department; and

(b) retain all such books and records relating to the Contracted Quantity for a period of seven years after termination or expiration of this Agreement or such longer period as may be required by any applicable Laws.

13.2 Audit rights - general

The Department or a representative may conduct audits relevant to the performance of the Supplier’s obligations under this Agreement. Audits may be conducted in respect of:

(a) the Supplier’s compliance with its obligation to ensure the availability of the Contracted Quantity at all times during the Term in accordance with clause 4.1;

(b) the Supplier’s operational practices and procedures as they relate to the performance of this Agreement;

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(c) the Supplier’s compliance with all applicable standards and Laws, including gathering evidence of relevant certifications, in all cases insofar as they relate to the performance of this Agreement;

(d) the accuracy of the Supplier’s invoices in relation to the provision of the services to be provided under this Agreement;

(e) any materials (including books and records) in the possession of the Supplier relevant to the services being provided by the Supplier under this Agreement; and

(f) any other matters determined by the Department to be relevant to the services to be provided under this Agreement.

13.3 Audit rights – access

(a) The Department may at reasonable times and on giving reasonable notice to the Supplier:

(i) access the premises of the Supplier ;

(ii) access the Storage Location(s) at which the Contracted Quantity will be stored pursuant to clause 4.2; and

(iii) inspect any materials held by the Supplier in whatsoever form,

in each case to determine the Supplier’s compliance with the requirements of this Agreement.

(b) The Supplier must provide access to its computer hardware and software to the extent necessary for the Department to exercise its rights under clauses 13.2 and 13.3, and provide the Department with any reasonable assistance requested by the Department to use that hardware and software.

(c) The Supplier must promptly comply with all requirements of the Department under clauses 13.2 and 13.3.

(d) Each party must bear its own costs of any reviews and / or audits.

(e) The requirement for, and participation in, audits does not in any way reduce the Supplier’s responsibility to perform its obligations in accordance with this Agreement.

14 LIMITATION OF LIABILITY AND INDEMNITY

14.1 General

Subject to clauses 14.2 and 14.3, neither party shall be liable under or in connection with this Agreement, whether in contract, tort or otherwise, for any indirect or consequential loss or any loss of profit, loss of goodwill or loss of opportunity.

14.2 Cost of replacement stocks

To the extent that the Department incurs costs to obtain replacement oil stocks arising from a failure by the Supplier to meet its obligations under this Agreement, the Supplier will be fully responsible, and shall reimburse the Department, for such costs and such costs are not considered an indirect or consequential loss.

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14.3 Indemnity

The Supplier indemnifies the Department against any loss, liability, damages, expenses or costs incurred by the Department as a result of:

(a) any failure by the Supplier to comply with any Law;

(b) any negligent act or omission or wilful misconduct of the Supplier; or

(c) any claim by a third party against the Department that is a direct or indirect result of any breach of this Agreement by the Supplier.

15 TERMINATION

15.1 Termination by the Department for cause

(a) The Department may give the Supplier notice immediately terminating this Agreement if:

(i) the Supplier commits a material breach of this Agreement and the breach remains unremedied for 15 Working Days after the Department has given notice to the Supplier specifying the breach and requesting it be remedied;

(ii) execution is levied against all or a substantial part of, or a receiver, manager or administrator is appointed of any of, the assets of the Supplier or any of its holding companies;

(iii) the Supplier or any of its holding companies either goes into liquidation (other than voluntarily for reconstruction or amalgamation purposes with the prior written approval of the Department), or is dissolved, or enters into a scheme of arrangement with any class of its creditors, or is placed under official management; or

(iv) any event or circumstance analogous to the events or circumstances referred to in clauses 15.1(a)(ii) or (iii) occurs under the Laws of any applicable jurisdiction occurs with respect to the Supplier or any of its holding companies.

(b) Without limitation, for the purposes of clause 15.1(a), a breach of the following provisions constitutes a material breach of this Agreement:

(i) clause 4.1 (Contracted Quantity);

(ii) clause 4.2 (Storage Location of Contracted Quantity);

(iii) clause 4.3 (Compliance with Sanctions);

(iv) clause 7.2 (Supplier to deliver amount of Contracted Quantity purchased);

(v) clause 9 (Compliance with Laws, Subcontracting and Cooperation);

(vi) clause 11.3 (Notice of Force Majeure);

(vii) clause 13 (Records and Accounts);

(viii) clause 14.2 (Costs of replacement stocks); or

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(ix) clause 16 (Confidentiality).

(c) The Supplier must notify the Department immediately if any of events or circumstances in clauses 15.1(a)(ii), (iii) or (iv) occur.

15.2 Suspension of obligation to pay Monthly Fee

(a) If:

(i) any of the circumstances specified in clause 1515.1(a) (ii), (iii) or (iv) apply, and/or

(ii) the Supplier commits a material breach of this Agreement and the breach remains unremedied,

the Department may give the Supplier notice suspending the Department’s obligations to pay the Monthly Fee, but without limiting any other rights or obligations of either party.

(b) A notice of suspension under this clause 15.2 does not limit the Department’s ability to give a notice of termination under clause 15.1 in relation to the same matter at a later date. Where a suspension notice has been served following the occurrence of a material breach by the Supplier (pursuant to clause 15.1(a) or this clause 15.2), the suspension will cease when the breach is remedied to the Department’s reasonable satisfaction.

15.3 Termination by the Supplier

The Supplier may give the Department notice immediately terminating this Agreement if the Department commits a material breach of this Agreement and the breach remains unremedied for 15 Working Days after the Supplier has given notice to the Department specifying the breach and requesting it be remedied. For the avoidance of doubt, any restructuring of the Department, change of name or change in government policy relating to the IEP Agreement does not constitute a material breach.

15.4 Survival of rights and obligations

Termination or expiry of this Agreement does not operate as a waiver of any breach by either party of this Agreement and does not prejudice any right, or extinguish any liability or obligation, which has accrued up to the date of termination or expiry. Clauses 1, 5.4, 7.6, 7.7, 10, 11, 12, 13, 14, 15, 16, and 18 survive termination or expiry, together with any other term requiring payment of any sum outstanding at termination or expiry, and any other terms which expressly or impliedly are intended to survive termination or expiry.

16 CONFIDENTIALITY

16.1 Confidential Information not to be disclosed

(a) Subject to clause 16.2, a party must not, without the prior written consent of the other party, disclose any Confidential Information of the other party to a third party.

(b) In giving written consent to the disclosure of Confidential Information, a party may impose such conditions as it thinks fit, and the other party agrees to comply with these conditions.

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16.2 Exceptions to obligations

The obligations on the parties under this clause 16 will not be taken to have been breached to the extent that Confidential Information is:

(a) disclosed by a party to its advisers or employees solely in order to comply with obligations, or to exercise rights, under this Agreement;

(b) disclosed to a party's internal management personnel, solely to enable effective management or auditing of Agreement related activities;

(c) disclosed by the Department to the responsible minister;

(d) disclosed by the Department, in response to a request by a House or a Committee of the Parliament of the Commonwealth;

(e) shared by the Department within the Department's organisation, or with another Agency, where this serves the Commonwealth's legitimate interests;

(f) authorised or required by Law, or under this Agreement, or under a licence or otherwise, to be disclosed;

(g) required by virtue of Australia’s membership of the IEA;

(h) required for the purposes of any on-sale of the stocks by the Department to a third party; or

(i) in the public domain otherwise than due to a breach of this clause 16.

16.3 Obligations on disclosure

Where a party discloses Confidential Information to another person:

(a) pursuant to clauses 1616.1(a) or (b), the disclosing party must:

(i) notify the receiving person that the information is Confidential Information; and

(ii) not provide the information unless the receiving person agrees to keep the information confidential; or

(b) pursuant to clauses 1616.1(c), (d), (e), (f), (g) or (h), the disclosing party must notify the receiving party that the information is Confidential Information and provide reasonable notice to the party to whom the Confidential Information belongs.

16.4 No reduction in privacy obligations

Nothing in this clause 16 derogates from any obligation which either party may have either under the Privacy Act as amended from time to time, or under this Agreement, in relation to the protection of Personal Information.

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17 DISPUTE RESOLUTION

17.1 No arbitration or court proceedings

If a Dispute arises, the party claiming the Dispute must comply with this clause 17 before starting arbitration or court proceedings (except proceedings for urgent interlocutory relief). After a party has sought or obtained any urgent interlocutory relief that party must follow this clause 17.

17.2 Notification

A party claiming a Dispute has arisen must give the other party notice setting out details of the Dispute.

17.3 Parties to resolve Dispute

During the period of 10 days after notification of a Dispute is given under clause 17.2 (or longer period if the parties agree in writing) the Department Officer Representative and the Supplier Officer Representative shall attempt to resolve the Dispute by negotiation. If the parties cannot resolve the Dispute within that period, each party to the Dispute must use its reasonable efforts through a meeting of the Department Senior Representative and the Supplier Senior Representative, to resolve the Dispute. If the parties cannot resolve the Dispute within 10 days of expiry of the initial 10 day negotiation period, either party may submit the Dispute to arbitration by a sole independent arbitrator appointed jointly by the parties.

17.4 Appointment of arbitrator

If the parties cannot agree on the arbitrator within a further 5 Working Days, the sole arbitrator will be appointed in accordance with the UNCITRAL Arbitration Rules.

17.5 Role of arbitrator and conduct of arbitration

The arbitration proceedings will be conducted in English, in Sydney, Australia, in accordance with the UNCITRAL Arbitration Rules. The decision of the arbitrator will be final and binding on the parties, and the costs of the arbitrator will (subject to any award by the arbitrator) be borne equally by them.

17.6 Confidentiality

Any information or documents disclosed by a party under this clause 17:

(a) must be kept confidential; and

(b) may only be used to attempt to resolve the Dispute.

17.7 Obligations continue

(a) Despite the existence of a Dispute, the parties must continue to perform their obligations under this Agreement, unless a direction is issued in accordance with clause 17.7(b).

(b) If directed and notified in writing by the Department to do so, the Supplier must cease performing the obligations of the Supplier under this Agreement which are specified in the Department's notice.

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17.8 Urgent remedies

Nothing in this clause 17 excludes or limits either party’s right to seek or obtain any order or relief by way of injunction or declaration or other equitable or statutory remedy against the other party or other person where the claimant believes such order or relief is necessary for the urgent protection of rights or property.

18 NOTICES

18.1 Address for notices

Any notice or other communication to be given under this Agreement must be in English, in writing and delivered as an Electronic Communication addressed to the recipient at the email address specified below, or where delivery of Electronic Communications is not available, in English, in writing and delivered to such other address as is notified by that party to the other party from time to time or as set out below:

(a) for notices to the Department:

Title/Position: Assistant Secretary, Energy International Implementation Branch, Department of Industry, Science, Energy and Resources

Address: GPO Box 787, Canberra ACT 2601, Australia

Email: [email protected]

(b) for notices to the Supplier:

Title/Position [Insert title]

Address: [Insert address]

Email: [Insert email]

18.2 Receipt of notices

A notice or other communication will be deemed to have been received:

(a) if sent by Electronic Communication, at the time that would be the time of receipt under the Electronic Transactions Act 1999 (Cth);

(b) if sent by prepaid post:

(i) on the second Working Day after the date of posting if sent to, or from, an Australian capital city to, or from, the same or another Australian capital city;

(ii) on the fourth Working Day after the date of posting if not sent to, or from, an Australian capital city; or

(iii) on the seventh Working Day after the date of posting if posted to, or from, a place outside Australia; or

(c) in the case of hand delivery, at the time of actual delivery to the recipient’s address; and

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provided that if a notice or other communication is received or deemed to have been received after 5 pm on a Working Day in the place to which it is sent, or on a day which is not a Working Day, it will be deemed not to have been received until 9 am on the next Working Day in the place to which it is sent.

19 REPLACEMENT INDICES

19.1 Unavailable Index

(a) If a price quotation or rate is based on a published rate or index (including LIBOR), and that published rate or index is for any reason not published (other than temporarily), or otherwise ceases to be available or there is a fundamental change in the manner in which it is calculated, the parties will, in good faith, promptly negotiate an appropriate equivalent, the effects of which (so far as can be assessed at the time at which such replacement rate or index is selected) are as close as practicable to those that would have been expected of the original rate or index.

(b) If any rate or index used in this Agreement is not published for a particular date, but the publication containing such rate or index continues to be published and the rate or index itself continues to exist, the parties will use the published rate or index in effect for the date such rate or index was most recently published prior to the particular date unless otherwise provided in this Agreement or agreed between the parties.

19.2 Determining a replacement index

(a) If the parties do not reach agreement on a replacement rate or index within a period of 14 days after the date of the occurrence of the circumstances referred to in clause 19.1(a), then either party may request that the matter be referred for determination by an Expert appointed in accordance with clause 19.3.

(b) The Expert is instructed to select the published rate or index or a combination of published rates or indices (in each case with adjustments as necessary or appropriate), the effects of which (so far as can be assessed at the time at which such replacement rate or index is selected) are as close as practicable (taking into account, among others, considerations of the relevant market coverage, depth, liquidity and volatility) to those that would have been expected of the original rate or index had the original rate or index continued to be published and used and had there been no fundamental change in the manner in which the original rate or index was calculated.

(c) The parties shall be permitted to present evidence on publicly available data from independent reputable sources, as well as evidence from experts in the field of energy, pricing and other relevant matters, including in relation to industry practice, but the determination of the Expert will be final and binding upon the parties save in the event of fraud or manifest error. The Expert may also seek independent professional advice in relation to such matters if he/she deems it necessary and appropriate to do so.

(d) In circumstances where the cessation or (as the case may be) the cessation of publication referred to in clause 19.1 has the effect that an amount under this is no longer capable of calculation, the parties will provisionally calculate such amount using the published rate or index in effect for the date such rate or index as was most recently published prior to the date of such cessation, subject to retrospective adjustment.

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19.3 Appointing an Expert

(a) For the purposes of this clause 19, an Expert appointed will be a suitably qualified and educated, independent expert who fulfils the following requirements:

(i) no person will be appointed to act as the Expert unless qualified by education, experience and training to determine the rate or index;

(ii) any person appointed or selected as the Expert will be entitled to act as such Expert provided that before accepting such appointment the proposed Expert will have fully disclosed in writing to the parties any fact or circumstance which would call into question the Expert's neutrality, independence or impartiality or would conflict with the function under the appointment and/or may prejudice a determination;

(iii) no person will be appointed as an Expert who has not agreed in writing to hold in confidence any and all information furnished by the parties; and

(iv) the appointment of the Expert will only take effect after agreement has been reached between the parties and the appointing agency or the Expert as to the Expert's remuneration. The arrangement agreed on will be clearly set out in writing and will be part of the agreement between the parties and the Expert.

(b) If the parties fail to agree on an Expert within 15 days, an Expert will be appointed by the Resolution Institute or by such other competent, impartial authority as the parties may agree upon.

20 GENERAL PROVISIONS

20.1 Variation

No variation to this Agreement will be effective unless it is in writing and signed by both parties.

20.2 Assignment

A party may not assign or transfer this Agreement, or any rights or obligations under this Agreement, without the prior written consent of the other party, which must not be unreasonably withheld. For the purposes of this clause a change in the effective control of the Supplier will be deemed to be an assignment by the Supplier. A change in the name or composition of the Department will not be deemed to be an assignment or a transfer by the Department.

20.3 No partnership

Nothing in this Agreement is intended to make either party a joint venturer, partner, agent or fiduciary of the other party.

20.4 Costs

Each party must pay its own costs of negotiating, preparing and executing this Agreement.

20.5 Severing unlawful terms

If any part of this Agreement is held by any court or administrative body of competent jurisdiction to be illegal, void or unenforceable:

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(a) it will be severed from this Agreement to the extent that it is unlawful and unenforceable;

(b) the rest of the Agreement will remain in force provided that severing any part of this Agreement under paragraph (a) of this clause does not materially affect the purpose of or frustrate this Agreement; and

(c) either party may give notice requiring the other party to use reasonable endeavours to negotiate a change to this Agreement which puts both parties, as far as is reasonably possible, in the commercial position they would have been in if it were not for the decision of the court or administrative body.

20.6 No waiver

Except where a party has signed an express written waiver of a right under this Agreement, no failure, delay or indulgence by either party in exercising any power or right conferred on that party by this Agreement will operate as a waiver of that power or right. A written waiver applies only to the right and on the occasion specified in it.

20.7 Announcements

(a) The Supplier must, before making a public announcement in connection with this Agreement or any transaction contemplated by it, obtain the Department's agreement to the announcement, except if required by Law or a regulatory body (including a relevant stock exchange).

(b) If the Supplier is required by Law or a regulatory body to make a public announcement in connection with this Agreement or any transaction contemplated by this Agreement the Supplier must, to the extent practicable, first consult with and take into account the reasonable requirements of the Department.

(c) Where reasonably practicable, the Department must, on or before making a public announcement in connection with this Agreement or any transaction contemplated by it, provide notice to the Supplier of the general nature of the announcement. For the avoidance of doubt, the Department does not require the consent of the Supplier prior to the making of the announcement.

20.8 Further Action

Each party must do, at its own expense, everything reasonably necessary (including executing documents) to give full effect to this Agreement and any transaction contemplated by it.

20.9 Governing law

This Agreement will be governed by and construed in accordance with the laws of the Australian Capital Territory.

20.10 Entire Agreement

This Agreement is the entire agreement between the parties on its subject matter and replaces all earlier negotiations, representations, warranties, understandings and agreements, whether oral or written, between the parties relating to that subject matter.

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20.11 Counterparts

This Agreement may be executed in any number of counterparts and all the counterparts when taken together will constitute one agreement. Each party may enter into this Agreement by executing a counterpart. The parties acknowledge that this Agreement may be executed by an exchange of scanned and emailed PDF copies and execution of this Agreement by that means is valid and sufficient execution.

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EXECUTED as an agreement

SIGNED for and on behalf of the Commonwealth of Australia as represented by the Department of Industry, Science, Energy and Resources (ABN 74 599 608 295) by a duly authorised representative

Name of authorised representative (print) Name of witness (print)

Signature of authorised representative Signature of witness

Date

SIGNED by [Insert Name of Supplier] by

Name (print) Name (print)

Signature Signature

Date Date

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SCHEDULE 1 – CONTACT AND TRANSACTION DETAILS

Contact Details:

Department Officer Representative

Department Senior Representative

[Insert name; and contact details (email and phone number) of both]

Supplier Officer Representative

Supplier Senior Representative

[Insert name; and contact details (email and phone number) of both] [Drafter’s Note: The Supplier Senior Representative is to be more senior than the Supplier Officer Representative for the purposes of clause 17.3, and should be CEO, agency head or equivalent level.]

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[Drafter’s Note: If there is only One Type of Product, delete the following bracketed Schedule reference.] [Schedule 1.1:] [Insert name of first Type of Product] Transaction Details

Item

1. Term [] months commencing on []

2. Contracted Quantity [] metric tonnes

[Drafters Note: Where multiple tranches are reserved and priced differently, the quantity of stock within each tranche must be recorded here:

Tranche One Stock: [] metric tonnes

Tranche Two Stock: [] metric tonnes

[Drafters Note: Insert additional tranches as required. The additional tranches should also be inserted into the definition of ‘Tranche’.]

3. Storage Location, Storage Facility, Storage Tanks

[Insert address where stock is to be held, including city ](Storage Location)

The Storage Facility, located at the Storage Location is owned and operated by: [Insert details if different from Supplier and explain Supplier’s rights to use the facility for the Term (e.g. ownership, leasing, license, usage agreement)] (Storage Facility)

The Contracted Quantity will be stored in [Insert specific Storage Tank/s to be used, including ID number, planned inventory of the Storage Tank for the Term (e.g. to reflect upcoming shipments/deliveries) and indicate whether commingling is/is not permitted in any storage tank] (Storage Tank/s).

4. Primary Delivery Location [Insert address for delivery]

5. Secondary Delivery Location

[Insert secondary addresses for delivery, if specified. Otherwise insert ‘Not applicable’.]

6. Type of Product (including Grade and/or Specification)

[Crude oil] [Natural Gas Liquids] [Refinery feedstocks] [Other hydrocarbons] [Refinery gas (not liquefied)] [Ethane] [Liquid Petroleum Gas] [Naphtha] [Motor gasoline] [Aviation gasoline] [Gasoline-type jet fuel (naphtha type jet fuel or JP4)] [Kerosene type jet fuel (aviation turbine fuel)] [Other kerosene (burning oil)] [Gas/diesel oil (distillate fuel oil)] [Fuel oil (both low and high sulphur content)] [White spirit and SBP] [Lubricants] [Bitumen] [Paraffin waxes] [Petroleum coke]

Grade:

Specification:

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7. Monthly Fee [For Option A contemplated in clause 5.2 of the Agreement] AUD[] per calendar month per metric tonne of stock

[For Option B contemplated in clause 5.2 of the Agreement: Insert additional tranches as required. Note that, for the purpose of calculating the Monthly Fee, the Purchase Option or Release Option are deemed to apply to the Priority Tranche, being the Tranche with the highest price first and then in descending order of price.]

AUD [] per calendar month per metric tonne of Tranche One Stock

AUD[] per calendar month per metric tonne of Tranche Two Stock

8. Purchase Price [Insert market-related pricing basis based on the Supplier’s response to the Request for Tender]

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Schedule One, Part Two: Second Type of Product

Item

1. Term [] months commencing on []

2. Contracted Quantity [] metric tonnes

[Drafters Note: Where multiple tranches are reserved and priced differently, the quantity of stock within each tranche must be recorded here:

Tranche One Stock: [] metric tonnes

Tranche Two Stock: [] metric tonnes

[Drafters Note: Insert additional tranches as required. The additional tranches should also be inserted into the definition of ‘Tranche’.]

3. Storage Location, Storage Facility, Storage Tanks

[Insert address where stock is to be held, including city ](Storage Location)

The Storage Facility, located at the Storage Location is owned and operated by: [Insert details if different from Supplier and explain Supplier’s rights to use the facility for the Term (e.g. ownership, leasing, license, usage agreement)] (Storage Facility)

The Contracted Quantity will be stored in [Insert specific Storage Tank/s to be used, including ID number, planned inventory of the Storage Tank for the Term (e.g. to reflect upcoming shipments/deliveries) and indicate whether commingling is/is not permitted in any storage tank] (Storage Tank/s).

4. Primary Delivery Location [Insert address for delivery]

5. Secondary Delivery Location

[Insert secondary addresses for delivery, if specified. Otherwise insert ‘Not applicable’.]

6. Type of Product (including Grade and/or Specification)

[Crude oil] [Natural Gas Liquids] [Refinery feedstocks] [Other hydrocarbons] [Refinery gas (not liquefied)] [Ethane] [Liquid Petroleum Gas] [Naphtha] [Motor gasoline] [Aviation gasoline] [Gasoline-type jet fuel (naphtha type jet fuel or JP4)] [Kerosene type jet fuel (aviation turbine fuel)] [Other kerosene (burning oil)] [Gas/diesel oil (distillate fuel oil)] [Fuel oil (both low and high sulphur content)] [White spirit and SBP] [Lubricants] [Bitumen] [Paraffin waxes] [Petroleum coke]

Grade:

Specification:

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7. Monthly Fee [For Option A contemplated in clause 5.2 of the Agreement] AUD[] per calendar month per metric tonne of stock

[For Option B contemplated in clause 5.2 of the Agreement: Insert additional tranches as required. Note that, for the purpose of calculating the Monthly Fee, the Purchase Option or Release Option are deemed to apply to the Priority Tranche, being the Tranche with the highest price first and then in descending order of price.]

AUD [] per calendar month per metric tonne of Tranche One Stock

AUD[] per calendar month per metric tonne of Tranche Two Stock

8. Purchase Price [Insert market-related pricing basis based on the Supplier’s response to the Request for Tender]

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SCHEDULE 2 - FORM OF EXERCISE NOTICE

To

Dear Sirs,

I refer to the Onshore Oil Stock Ticket Contract dated [] between [insert counterparty] and the Commonwealth of Australia as represented by the Department of Industry, Science, Energy and Resources (the Agreement).

[Form of Purchase Notice: When exercising purchase option: The Department hereby gives notice under and pursuant to clause 7 of the Agreement that the Department exercises its Purchase Option in respect of the following Product:

Quantity: [Insert [] metric tonnes OR all of the Contracted Quantity]

Type of Product: [insert relevant Type of Product]

Specification: [insert relevant Specification]

The Product must be delivered by [Insert delivery date(s) which must not be earlier than 21 Working Days after the date of the Purchase Notice] (the Delivery Date) to [insert the Primary Delivery Location OR the Secondary Delivery Location] (the Delivery Location).]

[Form of Release Notice: When exercising release option: The Department hereby gives notice under and pursuant to clause 8 of the Agreement that the Department exercises its Release Option in respect of the following Product:

Amount:[[] metric tonnes OR all of the Contracted Quantity]

Type: [insert relevant type of stock]

Specification: [insert relevant specification]

The Product must be released by [insert date which must be at least 5 Working Days after the date of this Release Notice] (the Delivery Date) from [insert Storage Location].

Yours faithfully,

[Insert Name and Position of Departmental officer providing the Purchase Notice or Release Notice.]

For and on behalf of the Commonwealth of Australia as represented by the Department of Industry, Science, Energy and Resources

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SCHEDULE 3 – ADDITIONAL REQUIREMENTS

1. INTERPRETATION

In this Schedule 3:

(a) corresponding WHS law has the meaning given in section 4 of the WHS Act;

(b) Indigenous Enterprise means an organisation that is 50 per cent or more Indigenous owned that is operating a business;

(c) Regulator means an authority referred to in a WHS Law as the relevant authority for occupational health and safety complaints, queries or investigations;

(d) WGE Act means the Workplace Gender Equality Act 2012 (Cth);

(e) WHS Act means the Work Health and Safety Act 2011 (Cth);

(f) WHS Law means the WHS Act and any corresponding WHS law;

(g) WHS entry permit holder has the meaning given in the WHS Act; and

(h) WHS Regulations means the regulations made under the WHS Act.

2. WORKPLACE GENDER EQUALITY

(a) This clause 2 of Schedule 3 applies only to the extent that the Supplier is a ‘relevant employer’ for the purposes of the WGE Act.

(b) The Supplier must comply with its obligations, if any, under the WGE Act.

(c) If the Supplier becomes non-compliant with the WGE Act during the Term, the Supplier must notify the Department.

(d) If the Term exceeds 18 months, the Supplier must provide a current letter of compliance within 18 months from the date of execution of the Agreement and following this, annually, to the Department.

(e) Compliance with the WGE Act does not relieve the Supplier from its responsibility to comply with its other obligations under this Agreement.

3. WORKPLACE HEALTH AND SAFETY

(a) The Supplier must in carrying out its obligations under this Agreement, comply, and use reasonable endeavours to ensure that its subcontractors comply, with the provisions of all relevant statutes, regulations, by-laws and requirements of any Commonwealth, State, Territory or local authority including those arising under a WHS Law in respect of occupational health and safety.

(b) The Supplier must, in carrying out its obligations under this Agreement, comply, and use reasonable endeavours to ensure that its subcontractors comply, with any of the Commonwealth’s work, health and safety policies as notified, referred to, or made available, by the Department to the Supplier in writing.

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(c) If the Supplier is required by a WHS Law to report to a Regulator an incident arising out of the provision of the Services:

(i) at the same time, or as soon as is possible in the circumstances, the Supplier must give notice of such incident, and a copy of any written notice provided to a Regulator, to the Department; and

(ii) the Supplier must provide to the Department, within such time as is specified by the Department, a report detailing the circumstances of the incident, the results of investigations into its cause, and any recommendations or strategies for prevention in the future.

(d) The Supplier must inform the Department of the full details of:

(i) any suspected contravention of a WHS Law relating to the performance of its obligations under this Agreement, within 24 hours of becoming aware of any such suspected contravention;

(ii) any cessation or direction to cease work relating to the performance of its obligations under this Agreement, due to unsafe work, immediately upon the Supplier being informed of any such cessation or direction;

(iii) any workplace entry by a WHS entry permit holder, or an inspector, to any place where the performance of any obligations under this Agreement is undertaken, within 24 hours of becoming aware of any such workplace entry; and

(iv) any proceedings against the Supplier or its officers, or any decision or request by the Regulator given to the Supplier or its personnel, under a WHS Law, within 24 hours of becoming aware of any such proceedings, decision or request.

4. INDIGENOUS PROCUREMENT POLICY

(a) The Supplier acknowledges that, as a department of the Commonwealth, it is the Department’s policy to stimulate Indigenous entrepreneurship and business development, and to provide Indigenous Australians with more opportunities to participate in the economy.

(b) The Supplier must use its reasonable endeavours to increase its:

(i) purchasing from Indigenous Enterprises; and

(ii) employment of Indigenous Australians,

in the fulfilment of this Agreement.

(c) For the purposes of clause 4(b) of this Schedule 3, purchases from Indigenous Enterprises may be in the form of engagement of an Indigenous Enterprise as a subcontractor, and use of Indigenous suppliers in the Supplier’s supply chain.

(d) The Supplier must provide a written report and evidence of its compliance with this clause 4 of Schedule 3 following a reasonable request by the Department.

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5. WARRANTY

The Supplier warrants to the Department that, except to the extent expressly agreed in writing, the Supplier holds, and will continue to hold at all times during the Term, the Contracted Quantity in addition to any oil stocks otherwise held by the Supplier for its ‘business as usual’ commercial purposes and the reservation of the Contracted Quantity does not affect the normal commercial operations of the Supplier.

6. STORAGE FACILITY

(a) The Supplier must ensure that the Department has access to the Storage Facility as required to enable the Department to carry out any audit contemplated under this Agreement or for the purpose of ensuring the Supplier's compliance with its obligations under this Agreement.

(b) The Supplier must, for the duration of the Term, ensure that:

(i) it has all permits, licences, authorisations, certifications and consents that are required for the use of the Storage Facility;

(ii) it complies with all Laws, permits, licences, authorisations, certifications and consents related to the use of the Storage Facility; and

(iii) the Storage Facility is fit for purpose.

(c) The Supplier acknowledges that the Department will use the data submitted by the Supplier to the Department under the Petroleum and Other Fuels Reporting Act 2017 (Cth) and the Petroleum and Other Fuels Reporting Rules 2017 to monitor compliance with the Contract.

(d) The Supplier must, for the duration of the Term, provide the Department with:

(i) any maintenance and inspection reports prepared for the Storage Facility; and

(ii) notification of any changes to the planned inventory of the Storage Tank while it is used to store the Contracted Quantity.

7. CO-MINGLING

If the Supplier holds the Contracted Quantity in a Storage Tank where co-mingling is permitted and this is indicated in item 3 of Schedule 1, the Supplier must:

(a) account for the Contracted Quantity separately from any other stocks that are contained in that Storage Tank;

(b) ensure that the Storage Tank at all times contains an available amount of stock that can be counted by the Department towards its stockholding obligations under the IEP Agreement; and

(c) ensure that, notwithstanding the rights of any third party to any stock held in a Storage Tank where commingling is permitted, if the Department exercises the Purchase Option under this Agreement, the Department will have priority in accessing the available stock.

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APPENDIX ONE - GENERAL TERMS AND CONDITIONS

(clause 7.6)

[Department’s current General Terms and Conditions (with agreed amendments) to be attached.

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oil stock ticketing - onshore contract (docx 148kb) · web view) under this agreement is not paid...

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