STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others. B. Supplier warrants that (i) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii) the Services shall be performed in accordance with said standards, skill and judgment, (iii) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv) all Services performed shall be free from defect, (v) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii) Supplier is properly qualified, licensed, trained, organized, and financed to perform the Services, and (viii) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself. C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Supplier Code of Conduct, both of which are available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes of conduct. Supplier shall (i) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),
Appears in 1 contract
Sources: Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants that (i) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii) the Services shall be performed in accordance with said standards, skill and judgment, (iii) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv) all Services performed shall be free from defect, (v) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii) Supplier is properly qualified, licensed, trained, organized, and financed to perform the Services, and (viii) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Supplier Code of Conduct, both of which are available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes of conduct. Supplier shall (i) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),, (ii) perform the Services only during regular working hours (as communicated to Supplier by Newmont) unless prior written consent is obtained from Newmont, (iii) conduct all activities on Newmont Premises so as to avoid or minimize delay or interference with any other person or entity performing work or services, and (iv) keep Newmont Premises clean and free of any debris and rubbish caused by the Services and, upon completion of the Services, leave such Newmont Premises clean and ready for use. Any personnel of Supplier or of its subcontractors which Newmont deems objectionable shall be removed from the jobsite and from performance of any further Services by Supplier upon Newmont’s request without additional cost to Newmont and shall be replaced promptly by Supplier with a person acceptable to Newmont. Without limiting the generality of the foregoing provisions, if Supplier will be present in any high risk and/or sensitive areas, including the refinery, carbon handling areas, ▇▇▇▇▇ preg ponds, refractory ore treatment plant, or any other area designated by Newmont as high risk and/or sensitive (collectively, “High Risk Areas”):
(A) Supplier shall submit to Newmont’s security department’s investigating officer a list of Supplier’s personnel assigned to work in the High Risk Area, which list shall include each individual’s full name and date of birth; Newmont may use such information to obtain a criminal background check on such individuals, the cost of which shall be charged to, and paid by, Supplier; (B) each of Supplier’s personnel shall report in person to Newmont’s security department’s investigating officer and may be required to show a driver’s license or other government-issued identification, to be fingerprinted, and to sign a release form for security clearance purposes prior to commencement of any Services; and (C) each of Supplier’s personnel entering a High Risk Area shall be subject to a high tech metal detector and/or hand scanner detection search for the detection of metals prior to entering a High Risk Area and upon exiting the High Risk Area. Supplier represents that it has received copies of the following Newmont policies: Acceptable Technology Use Standard.
D. As soon as practicable after completion of each milestone set forth in the Service Order (each, a “Milestone”) or, if there are no Milestones, after completion of the Services and/or delivery of the Equipment, Newmont may conduct such tests as it deems necessary, using its own sample or test data, to determine whether the applicable Services have been completed successfully and/or Equipment delivered and installed, and whether they meet the Specifications in all material respects. If Newmont determines, in its sole reasonable discretion, that such Services or Equipment fail to meet the Specifications, Newmont promptly shall give Notice to Supplier and shall specify with as much detail as practicable in which respects the Services or Equipment have failed to meet the Specifications. Supplier shall then, at its sole expense, promptly reperform the applicable Services or deliver substitute Equipment. In the event that Supplier does not successfully reperform such Services or redeliver Equipment within 15 days after the date of Newmont’s Notice, Supplier shall return all deposits or other amounts paid by Newmont with respect to such Services or Equipment, as applicable. Acceptance of any portion of the Services or of any Equipment shall be deemed to occur on the earlier of (i) the date on which Newmont notifies Supplier of acceptance, or (ii) the date which is 60 days from the date of completion of the applicable Milestone or of the Services or delivery of the Equipment, as applicable, unless prior to such date Newmont has notified Supplier that it has rejected such Services or Equipment or that there is a defect in the Services or Equipment. Acceptance of the Services and Equipment shall not otherwise be implied or assumed.
E. Where Supplier is not the manufacturer or direct supplier to Newmont of Equipment, Supplier shall obtain from each manufacturer or supplier of such Equipment such warranties with respect to quality, workmanship and performance as are generally made available for such types of Equipment, including (i) warranties that the Equipment shall strictly comply with any Specifications applicable thereto and be free from defects and fit for the purposes specified unless otherwise agreed in a written document signed by Newmont, and (ii) warranties that Newmont shall receive good and unencumbered title at the time title is transferred to Newmont. The warranties on such Equipment shall, at a minimum, extend for a period of 18 months from receipt of the Equipment by Newmont or 12 months from the date such Equipment is placed in regular operation, whichever is earlier, and cover all repair and replacement costs and expenses associated with or incurred as a result of non-compliance with the Equipment warranties. Supplier shall include appropriate language in Supplier’s purchase orders for such Equipment that makes each and every warranty obtained by Supplier run directly to Newmont and permits Newmont to enforce or pursue such warranties as if Newmont had purchased the Equipment itself. Supplier’s obligations under this Section 2.E. shall in no way diminish, reduce or otherwise relieve Supplier of, and shall be in addition to, its warranty obligations under Section 2.B.
F. Without limitation of any other rights or remedies of Newmont, if a defect in any of the Services in violation of any of the warranties set forth in Section 2.B.(ii), (iii), or (iv) (“Warranties” as applicable to Services) arises within one year of Newmont’s acceptance of such Services (“Warranty Period” as applicable to Services), or a defect in any Equipment in violation of any of the warranties set forth in Section 2.B.(v) or (vi) (“Warranties” as applicable to Equipment) arises within a period of 18 months from acceptance of the Equipment by Newmont or within 12 months from the date such Equipment is placed in regular operation, whichever is earlier (“Warranty Period” as applicable to Equipment), Newmont may require Supplier to correct promptly the nonconformance at Supplier’s expense. Supplier shall, upon receipt of a written request from Newmont to correct the nonconformance, promptly furnish, at no cost to Newmont, all labor, equipment, supervision, and materials necessary to correct such nonconformance and cause the Services or Equipment to comply fully with the Warranties. The Warranties shall apply to any Services performed or Equipment provided by Supplier to correct a nonconformance, commencing on the date of acceptance of such corrective Services or Equipment, as provided in Section 2.D., and extending for a period of time equal to the number of days in the Warranty Period that was applicable to the original Services or Equipment that were corrected (e.g., if the original Services had a 30-day Warranty Period, the corrected Services would have a 30-day Warranty Period from the date of acceptance). If Supplier fails to so correct such nonconformance within 15 days after receipt of Newmont’s Notice, Newmont may, in addition to any other rights and remedies available at law or in equity, elect to (i) retain a third party to correct the nonconformance at Supplier’s expense, or (ii) correct the nonconformance with Newmont personnel at Supplier’s expense.
G. Specifications may not be complete in every detail. Supplier shall comply with their manifest intent and general purpose, taken as a whole. Should any conflict, error, or omission appear in the Specifications, Supplier immediately shall give Notice to Newmont and Newmont will issue written clarifications. If Supplier proceeds with any of the Services or Equipment in question prior to receiving such instructions, all necessary corrections shall be at Supplier’s sole expense.
H. Supplier shall comply with all applicable laws, regulations, decrees, codes, ordinances, resolutions, and other acts of any applicable governmental authority, including federal, regional, state, county, and local labor laws (such as the Fair Labor Standards Act of 1938, as amended), tax laws, laws addressing bribery and corruption, and laws addressing the preservation of health, safety, and the environment, including the Mine Safety and Health Act of 1977 (“MSHA”) and Occupational Safety and Health Act of 1970 (“OSHA”), each as amended, and other laws that are applicable to this Agreement or Supplier’s performance of the Services. Supplier shall furnish personnel that are qualified, competent, fit, and skilled to perform the Services and shall ensure that each Supplier Party is properly licensed and certified if and as required by applicable laws, including any MSHA and OSHA certifications. Without limiting the generality of the foregoing sentences:
(i) Supplier represents, warrants, and covenants to Newmont, as of the Effective Date and the date that each invoice is submitted to Newmont, that in carrying out its responsibilities, neither Supplier, nor any of its equity holders, beneficial owners, partners, officers, directors, employees, agents, or representatives shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value: (A) to (1) any official or employee of any government, or any department, agency, or instrumentality thereof, (2) any political party or official thereof, or any candidate for political office, (3) any official or employee of any public international organization (as defined in 22 USC Section 288), or (4) any person acting in an official capacity for or on behalf of such government, department, agency, instrumentality, party, or public international organization, in each case for the purpose of influencing any act or decision of such party, or of such official, employee or candidate in his official capacity, or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage, or inducing such official, employee, party or candidate to use his or its influence with a government or instrumentality thereof to improperly or illegally affect or influence any act or decision of such government or instrumentality; or (B) to an officer, employee, agent, or representative of another company or organization, with the intent to influence or reward the recipient’s action(s) with respect to his company’s or organization’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce or reward the improper performance of the recipient’s duties.
(ii) Notwithstanding any other provision of this Agreement, Newmont may immediately suspend this Agreement in the event it should receive information which, in its sole discretion, it determines to be evidence of a breach by Supplier of any undertaking above. In the event of receipt of such evidence and/or such suspension, Newmont shall consult with Supplier and may thereafter immediately terminate this Agreement if Newmont, in its sole discretion, is reasonably satisfied that such a breach has occurred. In the event of such termination, Newmont shall have no liability to Supplier under this Agreement for any fees, reimbursements, o
Appears in 1 contract
Sources: Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants that (i) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii) the Services shall be performed in accordance with said standards, skill and judgment, (iii) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv) all Services performed shall be free from defect, (v) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii) Supplier is properly qualified, licensed, trained, organized, and financed to perform the Services, and (viii) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Supplier Code of Conduct, both of which are available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes of conduct. Supplier shall (i) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),, (ii) perform the Services only during regular working hours (as communicated to Supplier by Newmont) unless prior written consent is obtained from Newmont, (iii) conduct all activities on Newmont Premises so as to avoid or minimize delay or interference with any other person or entity performing work or services, and (iv) keep Newmont Premises clean and free of any debris and rubbish caused by the
(A) Supplier shall submit to Newmont’s security department’s investigating officer a list of Supplier’s personnel assigned to work in the High Risk Area, which list shall include each individual’s full name and date of birth; Newmont may use such information to obtain a criminal background check on such individuals, the cost of which shall be charged to, and paid by, Supplier; (B) each of Supplier’s personnel shall report in person to Newmont’s security department’s investigating officer and may be required to show a driver’s license or other government-issued identification, to be fingerprinted, and to sign a release form for security clearance purposes prior to commencement of any Services; and (C) each of Supplier’s personnel entering a High Risk Area shall be subject to a high tech metal detector and/or hand scanner detection search for the detection of metals prior to entering a High Risk Area and upon exiting the High Risk Area. Supplier represents that it has received copies of the following Newmont policies: Acceptable Technology Use Standard.
D. As soon as practicable after completion of each milestone set forth in the Service Order (each, a “Milestone”) or, if there are no Milestones, after completion of the Services and/or delivery of the Equipment, Newmont may conduct such tests as it deems necessary, using its own sample or test data, to determine whether the applicable Services have been completed successfully and/or Equipment delivered and installed, and whether they meet the Specifications in all material respects. If Newmont determines, in its sole reasonable discretion, that such Services or Equipment fail to meet the Specifications, Newmont promptly shall give Notice to Supplier and shall specify with as much detail as practicable in which respects the Services or Equipment have failed to meet the Specifications. Supplier shall then, at its sole expense, promptly reperform the applicable Services or deliver substitute Equipment. In the event that Supplier does not successfully reperform such Services or redeliver Equipment within 15 days after the date of Newmont’s Notice, Supplier shall return all deposits or other amounts paid by Newmont with respect to such Services or Equipment, as applicable. Acceptance of any portion of the Services or of any Equipment shall be deemed to occur on the earlier of (i) the date on which Newmont notifies Supplier of acceptance, or (ii) the date which is 60 days from the date of completion of the applicable Milestone or of the Services or delivery of the Equipment, as applicable, unless prior to such date Newmont has notified Supplier that it has rejected such Services or Equipment or that there is a defect in the Services or Equipment. Acceptance of the Services and Equipment shall not otherwise be implied or assumed.
E. Where Supplier is not the manufacturer or direct supplier to Newmont of Equipment, Supplier shall obtain from each manufacturer or supplier of such Equipment such warranties with respect to quality, workmanship and performance as are generally made available for such types of Equipment, including (i) warranties that the Equipment shall strictly comply with any Specifications applicable thereto and be free from defects and fit for the purposes specified unless otherwise agreed in a written document signed by Newmont, and (ii) warranties that Newmont shall receive good and unencumbered title at the time title is transferred to Newmont. The warranties on such Equipment shall, at a minimum, extend for a period of 18 months from receipt of the Equipment by Newmont or 12 months from the date such Equipment is placed in regular operation, whichever is earlier, and cover all repair and replacement costs and expenses associated with or incurred as a result of non-compliance with the Equipment warranties. Supplier shall include appropriate language in Supplier’s purchase orders for such Equipment that makes each and every warranty obtained by Supplier run directly to Newmont and permits Newmont to enforce or pursue such warranties as if Newmont had purchased the Equipment itself. Supplier’s obligations under this Section 2.E. shall in no way diminish, reduce or otherwise relieve Supplier of, and shall be in addition to, its warranty obligations under Section 2.B.
F. Without limitation of any other rights or remedies of Newmont, if a defect in any of the Services in violation of any of the warranties set forth in Section 2.B.(ii), (iii), or (iv) (“Warranties” as applicable to Services) arises within one year of Newmont’s acceptance of such Services (“Warranty Period” as applicable to Services), or a defect in any Equipment in violation of any of the warranties set forth in Section 2.B.(v) or (vi) (“Warranties” as applicable to Equipment) arises within a period of 18 months from acceptance of the Equipment by Newmont or within 12 months from the date such Equipment is placed in regular operation, whichever is earlier (“Warranty Period” as applicable to Equipment), Newmont may require Supplier to correct promptly the nonconformance at Supplier’s expense. Supplier shall, upon receipt of a written request from Newmont to correct the nonconformance, promptly furnish, at no cost to Newmont, all labor, equipment, supervision, and materials necessary to correct such nonconformance and cause the Services or Equipment to comply fully with the Warranties. The Warranties shall apply to any Services performed or Equipment provided by Supplier to correct a nonconformance, commencing on the date of acceptance of such corrective Services or Equipment, as provided in Section 2.D., and extending for a period of time equal to the number of days in the Warranty Period that was applicable to the original Services or Equipment that were corrected (e.g., if the original Services had a 30-day Warranty Period, the corrected Services would have a 30-day Warranty Period from the date of acceptance). If Supplier fails to so correct such nonconformance within 15 days after receipt of Newmont’s Notice, Newmont may, in addition to any other rights and remedies available at law or in equity, elect to (i) retain a third party to correct the nonconformance at Supplier’s expense, or (ii) correct the nonconformance with Newmont personnel at Supplier’s expense.
G. Specifications may not be complete in every detail. Supplier shall comply with their manifest intent and general purpose, taken as a whole. Should any conflict, error, or omission appear in the Specifications, Supplier immediately shall give Notice to Newmont and Newmont will issue written clarifications. If Supplier proceeds with any of the Services or Equipment in question prior to receiving such instructions, all necessary corrections shall be at Supplier’s sole expense.
H. Supplier shall comply with all applicable laws, regulations, decrees, codes, ordinances, resolutions, and other acts of any applicable governmental authority, including federal, regional, state, county, and local labor laws (such as the Fair Labor Standards Act of 1938, as amended), tax laws, laws addressing bribery and corruption, and laws addressing the preservation of health, safety, and the environment, including the Mine Safety and Health Act of 1977 (“MSHA”) and Occupational Safety and Health Act of 1970 (“OSHA”), each as amended, and other laws that are applicable to this Agreement or Supplier’s performance of the Services. Supplier shall furnish personnel that are qualified, competent, fit, and skilled to perform the Services and shall ensure that each Supplier Party is properly licensed and certified if and as required by applicable laws, including any MSHA and OSHA certifications. Without limiting the generality of the foregoing sentences:
(i) Supplier represents, warrants, and covenants to Newmont, as of the Effective Date and the date that each invoice is submitted to Newmont, that in carrying out its responsibilities, neither Supplier, nor any of its equity holders, beneficial owners, partners, officers, directors, employees, agents, or representatives shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value: (A) to (1) any official or employee of any government, or any department, agency, or instrumentality thereof, (2) any political party or official thereof, or any candidate for political office, (3) any official or employee of any public international organization (as defined in 22 USC Section 288), or (4) any person acting in an official capacity for or on behalf of such government, department, agency, instrumentality, party, or public international organization, in each case for the purpose of influencing any act or decision of such party, or of such official, employee or candidate in his official capacity, or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage, or inducing such official, employee, party or candidate to use his or its influence with a government or instrumentality thereof to improperly or illegally affect or influence any act or decision of such government or instrumentality; or (B) to an officer, employee, agent, or representative of another company or organization, with the intent to influence or reward the recipient’s action(s) with respect to his company’s or organization’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce or reward the improper performance of the recipient’s duties.
(ii) Notwithstanding any other provision of this Agreement, Newmont may immediately suspend this Agreement in the event it should receive information which, in its sole discretion, it determines to be evidence of a breach by Supplier of any undertaking above. In the event of receipt of such evidence and/or such suspension, Newmont shall consult with Supplier and may thereafter immediately terminate this Agreementif Newmont, in its sole discretion, is reasonably satisfied that such a breach has occurred. In the event of such termination, Newmont shall have no liability to Supplier under this Agreement for any fees, reimbursements, or other compensation under this Agreement or for any other loss, cost, claim, or damage resulting, directly or indirectly, to Supplier from such termination, other than for Services already performed and/or goods already delivered.
I. Supplier understands that Newmont is committed to conducting all of its mining operations and related activities in an environmentally and socially responsible manner. To that end, Supplier shall make all commercially reasonable efforts to (i) perform the Services in a manner aligned with such principles, including the use of pollution-controlled equipment and facilities if, and as applicable, (ii) to assess the potential impact of its activities on local communities and, when applicable, to integrate mitigation me
Appears in 1 contract
Sources: Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order change order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants represents, warrants, and covenants that (i1) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals Supplier’s industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii2) the Services shall be performed in accordance with said standards, skill and judgment, (iii3) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv4) all Services performed shall be free from defect, (v5) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi6) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii7) Supplier is properly qualified, licensed, trained, organized, equipped, and financed to perform the Services, and (viii) 8) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Newmont’s Supplier Code of Conduct, both each of which are is available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When ▇ and, when Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes Newmont’s Code of conductConduct, to the extent applicable. Supplier shall (i1) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard (which Supplier acknowledges receiving a copy of) if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by
(i) Supplier shall submit to Newmont’s security department’s investigating officer a list of Supplier’s personnel assigned to work in the High Risk Area, which list shall include each individual’s full name and date of birth; Newmont may use such information to obtain a criminal background check on such individuals, the cost of which shall be charged to, and paid by, Supplier; (ii) each of Supplier’s personnel shall report in person to Newmont’s security department’s investigating officer and may be required to show a driver’s license or other government-issued identification, to be fingerprinted, and to sign a release form for security clearance purposes prior to commencement of any Services; and (iii) each of Supplier’s personnel entering a High Risk Area shall be subject to a high tech metal detector and/or hand scanner detection search for the detection of metals prior to entering a High Risk Area and upon exiting the High Risk Area.
D. As soon as practicable after completion of each milestone set forth in the Service Order (each, a “Milestone”) or, if there are no Milestones, after completion of the Services and/or delivery of the Equipment, Newmont may conduct such tests as it deems necessary, using its own sample or test data, to determine whether the applicable Services have been completed successfully and/or Equipment delivered and installed, and whether they meet the Specifications in all material respects. If Newmont determines, in its sole reasonable discretion, that such Services or Equipment fail to meet the Specifications, Newmont promptly shall give Notice (as such term is defined in Section 16, below) to Supplier and shall specify with as much detail as practicable in which respects the Services or Equipment have failed to meet the Specifications. Supplier shall then, at its sole expense, promptly reperform the applicable Services or deliver substitute Equipment. In the event that Supplier does not successfully reperform such Services or redeliver Equipment within 15 days after the date of Newmont’s Notice, Supplier shall return all deposits or other amounts paid by Newmont with respect to such Services or Equipment, as applicable. Acceptance of any portion of the Services or of any Equipment shall be deemed to occur on the earlier of (1) the date on which Newmont notifies Supplier of acceptance, or (2) the date which is 60 days from the date of completion of the applicable Milestone or of the Services or delivery of the Equipment, as applicable, unless prior to such date Newmont has notified Supplier that it has rejected such Services or Equipment or that there is a defect in the Services or Equipment. Acceptance of the Services and Equipment shall not otherwise be implied or assumed.
E. Where Supplier is not the manufacturer or direct supplier to Newmont of Equipment, Supplier shall obtain from each manufacturer or supplier of such Equipment such warranties with respect to quality, workmanship and performance as are generally made available for such types of Equipment, including (1) warranties that the Equipment shall strictly comply with any Specifications applicable thereto and be free from defects and fit for the purposes specified unless otherwise agreed in a written document signed by Newmont, and (2) warranties that Newmont shall receive good and unencumbered title at the time title is transferred to Newmont. The warranties on such Equipment shall, at a minimum, extend for a period of 18 months from receipt of the Equipment by Newmont or 12 months from the date such Equipment is placed in regular operation, whichever is earlier, and cover all repair and replacement costs and expenses associated with or incurred as a result of non-compliance with the Equipment warranties. Supplier shall include appropriate language in Supplier’s purchase orders for such Equipment that makes each and every warranty obtained by Supplier run directly to Newmont and permits Newmont to enforce or pursue such warranties as if Newmont had purchased the Equipment itself. Supplier’s obligations under this Section 2.E. shall in no way diminish, reduce or otherwise relieve Supplier of, and shall be in addition to, its warranty obligations under Section 2.B.
F. Without limitation of any other rights or remedies of Newmont, if a defect in any of the Services in violation of any of the warranties set forth in Section 2.B.(2), (3), or (4) (“Warranties” as applicable to Services) arises within one year of Newmont’s acceptance of such Services (“Warranty Period” as applicable to Services), or a defect in any Equipment in violation of any of the warranties set forth in Section 2.B.(5) or (6) (“Warranties” as applicable to Equipment) arises within a period of 18 months from acceptance of the Equipment by Newmont Premisesor within 12 months from the date such Equipment is placed in regular operation, whichever is earlier (“Warranty Period” as applicable to Equipment), Newmont may require Supplier to correct promptly the nonconformance at Supplier’s expense. Supplier shall, upon receipt of a written request from Newmont to correct the nonconformance, promptly furnish, at no cost to Newmont, all labor, equipment, supervision, and materials necessary to correct such nonconformance and cause the Services or Equipment to comply fully with the Warranties. The Warranties shall apply to any Services performed or Equipment provided by Supplier to correct a nonconformance, commencing on the date of acceptance of such corrective Services or Equipment, as provided in Section 2.D., and extending for a period of time equal to the number of days in the Warranty Period that was applicable to the original Services or Equipment that were corrected (e.g., if the original Services had a 30-day Warranty Period, the corrected Services would have a 30-day Warranty Period from the date of acceptance). If Supplier fails to so correct such nonconformance within 15 days after receipt of Newmont’s Notice, Newmont may, in addition to any other rights and remedies available at law or in equity, elect to (1) retain a third party to correct the nonconformance at Supplier’s expense, or (2) correct the nonconformance with Newmont personnel at Supplier’s expense.
G. Specifications may not be complete in every detail. Supplier shall comply with their manifest intent and general purpose, taken as a whole. Should any conflict, error, or omission appear in the Specifications, Supplier immediately shall give Notice to Newmont and Newmont will issue written clarifications. If Supplier proceeds with any of the Services or Equipment in question prior to receiving such instructions, all necessary corrections shall be at Supplier’s sole expense.
H. Supplier shall comply with all applicable laws, regulations, decrees, codes, ordinances, resolutions, and other acts of any applicable governmental authority (collectively, “Laws”), comply with the applicable provisions of Newmont’s site including privacy laws, labor laws, tax laws, laws addressing bribery and workplace policies, standardscorruption, and procedures, including requirements relating to laws addressing the areas preservation of health, safety, and loss preventionthe environment, each as amended, and other laws that are applicable to this Agreement or Supplier’s performance of the Services. Supplier shall furnish personnel that are qualified, competent, fit, and skilled to perform the Services and shall ensure that Supplier, Supplier’s subcontractors, and their respective employees and agents (collectively, “Supplier Parties”) are properly licensed and certified if and as required by Laws. Without limiting the generality of the first sentence of this Section 2.H.:
(1) Supplier represents, warrants, and covenants to Newmont, as of the Effective Date and the date that each invoice is submitted to Newmont, that in carrying out its responsibilities, neither Supplier, nor any of its equity holders, beneficial owners, partners, officers, directors, employees, agents, or representatives shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value: (a) to (i) any official or employee of any government, or any department, agency, or instrumentality thereof, (ii) any political party or official thereof, or any candidate for political office, (iii) any official or employee of any public international organization (as defined in 22 USC Section 288), or (iv) any person acting in an official capacity for or on behalf of such government, department, agency, instrumentality, party, or public international organization, in each casecase for the purpose of influencing any act or decision of such party, as or of such document official, employee or candidate in his official capacity, or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage, or inducing such official, employee, party or candidate to use his or its influence with a government or instrumentality thereof to improperly or illegally affect or influence any act or decision of such government or instrumentality; or (b) to an officer, employee, agent, or representative of another company or organization, with the intent to influence or reward the recipient’s action(s) with respect to his company’s or organization’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce or reward the improper performance of the recipient’s duties.
(2) Notwithstanding any other provision of this Agreement, Newmont may immediately suspend this Agreement in the event it should receive information which, in its sole discretion, it determines to be amended from time to time evidence of a breach by Supplier of any undertaking in clause (1), above. In the event of receipt of such evidence and/or such suspension, Newmont shall consult with Supplier and may thereafter immediately terminate this Agreement if Newmont, in its sole discretion, and provided is reasonably satisfied that such a breach has occurred. In the event of such termination, Newmont shall have no liability to Supplier under this Agreement for any fees, reimbursements, or other compensation under this Agreement or for any other loss, cost, claim, or damage resulting, directly or indirectly, to Supplier from such termination, other than for Services already performed and/or goods already delivered.
I. Supplier understands that Newmont is committed to conducting all of its mining operations and related activities in an environmentally and socially responsible manner. To that end, Supplier shall make all commercially reasonable efforts (1) to perform the Services in a manner aligned with such principles, including the use of pollution-controlled equipment and facilities, if and as applicable, (2) to assess the potential impact of its activities on local communities and, when applicable, to integrate mitigation measures into its work plans, including ensuring that such measures are appropriately budgeted, (3) to timely address third party complaints received by it in connection with any job hazard analysis training work or goods provided hereunder (including from employees, subcontractors, suppliers, and local community members), (4) to identify opportunities that may be provided incorporate local procurement and employment, and (5) to Supplierthe extent involving activities conducted for or on behalf of Newmont, to coordinate engagement with local community stakeholders through Newmont’s personnel by site-level Social Responsibility department.
J. Supplier commits to respect human rights in line with the Universal Declaration of Human Rights (“Human Rights”). Supplier represents, warrants, and covenants to Newmont),, as of the date hereof, and the date that each invoice is submitted to Newmont hereunder, that no violation of Human Rights exists in any of its or its affiliates’ own operations or, to its knowledge, withi
Appears in 1 contract
Sources: Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants that (i) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii) the Services shall be performed in accordance with said standards, skill and judgment, (iii) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv) all Services performed shall be free from defect, (v) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii) Supplier is properly qualified, licensed, trained, organized, and financed to perform the Services, and (viii) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Supplier Code of Conduct, both of which are available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes of conduct. Supplier shall (i) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),, (ii) perform the Services only during regular working hours (as communicated to Supplier by Newmont) unless prior written consent is obtained from Newmont, (iii) conduct all activities on Newmont Premises so as to avoid or minimize delay or interference with any other person or entity performing work or services, and (iv) keep Newmont Premises clean and free of any debris and rubbish caused by the Services and, upon completion of the Services, leave such Newmont Premises clean and ready for use. Any personnel of Supplier or of its subcontractors which Newmont deems objectionable shall be removed from the jobsite and from performance of any further Services by Supplier upon Newmont’s request without additional cost to Newmont and shall be replaced promptly by Supplier with a person acceptable to Newmont. Without limiting the generality of the foregoing provisions, if Supplier will be present in any high risk and/or sensitive areas, including the refinery, carbon handling areas, ▇▇▇▇▇ preg ponds, refractory ore treatment plant, or any other area designated by Newmont as high risk and/or sensitive (collectively, “High Risk Areas”):
(A) Supplier shall submit to Newmont’s security department’s investigating officer a list of Supplier’s personnel assigned to work in the High Risk Area, which list shall include each individual’s full name and date of birth; Newmont may use such information to obtain a criminal background check on such individuals, the cost of which shall be charged to, and paid by, Supplier; (B) each of Supplier’s personnel shall report in person to Newmont’s security department’s investigating officer and may be required to show a driver’s license or other government-issued identification, to be fingerprinted, and to sign a release form for security clearance purposes prior to commencement of any Services; and (C) each of Supplier’s personnel entering a High Risk Area shall be subject to a high tech metal detector and/or hand scanner detection search for the detection of metals prior to entering a High Risk Area and upon exiting the High Risk Area. Supplier represents that it has received copies of the following Newmont policies: Acceptable Technology Use Standard.
D. As soon as practicable after completion of each milestone set forth in the Service Order (each, a “Milestone”) or, if there are no Milestones, after completion of the Services and/or delivery of the Equipment, Newmont may conduct such tests as it deems necessary, using its own sample or test data, to determine whether the applicable Services have been completed successfully and/or Equipment delivered and installed, and whether they meet the Specifications in all material respects. If Newmont determines, in its sole reasonable discretion, that such Services or Equipment fail to meet the Specifications, Newmont promptly shall give Notice to Supplier and shall specify with as much detail as practicable in which respects the Services or Equipment have failed to meet the Specifications. Supplier shall then, at its sole expense, promptly reperform the applicable Services or deliver substitute Equipment. In the event that Supplier does not successfully reperform such Services or redeliver Equipment within 15 days after the date of Newmont’s Notice, Supplier shall return all deposits or other amounts paid by Newmont with respect to such Services or Equipment, as applicable. Acceptance of any portion of the Services or of any Equipment shall be deemed to occur on the earlier of (i) the date on which Newmont notifies Supplier of acceptance, or (ii) the date which is 60 days from the date of completion of the applicable Milestone or of the Services or delivery of the Equipment, as applicable, unless prior to such date Newmont has notified Supplier that it has rejected such Services or Equipment or that there is a defect in the Services or Equipment. Acceptance of the Services and Equipment shall not otherwise be implied or assumed.
E. Where Supplier is not the manufacturer or direct supplier to Newmont of Equipment, Supplier shall obtain from each manufacturer or supplier of such Equipment such warranties with respect to quality, workmanship and performance as are generally made available for such types of Equipment, including (i) warranties that the Equipment shall strictly comply with any Specifications applicable thereto and be free from defects and fit for the purposes specified unless otherwise agreed in a written document signed by Newmont, and (ii) warranties that Newmont shall receive good and unencumbered title at the time title is transferred to Newmont. The warranties on such Equipment shall, at a minimum, extend for a period of 18 months from receipt of the Equipment by Newmont or 12 months from the date such Equipment is placed in regular operation, whichever is earlier, and cover all repair and replacement costs and expenses associated with or incurred as a result of non-compliance with the Equipment warranties. Supplier shall include appropriate language in Supplier’s purchase orders for such Equipment that makes each and every warranty obtained by Supplier run directly to Newmont and permits Newmont to enforce or pursue such warranties as if Newmont had purchased the Equipment itself. Supplier’s obligations under this Section 2.E. shall in no way diminish, reduce or otherwise relieve Supplier of, and shall be in addition to, its warranty obligations under Section 2.B.
F. Without limitation of any other rights or remedies of Newmont, if a defect in any of the Services in violation of any of the warranties set forth in Section 2.B.(ii), (iii), or (iv) (“Warranties” as applicable to Services) arises within one year of Newmont’s acceptance of such Services (“Warranty Period” as applicable to Services), or a defect in any Equipment in violation of any of the warranties set forth in Section 2.B.(v) or (vi) (“Warranties” as applicable to Equipment) arises within a period of 18 months from acceptance of the Equipment by Newmont or within 12 months from the date such Equipment is placed in regular operation, whichever is earlier (“Warranty Period” as applicable to Equipment), Newmont may require Supplier to correct promptly the nonconformance at Supplier’s expense. Supplier shall, upon receipt of a written request from Newmont to correct the nonconformance, promptly furnish, at no cost to Newmont, all labor, equipment, supervision, and materials necessary to correct such nonconformance and cause the Services or Equipment to comply fully with the Warranties. The Warranties shall apply to any Services performed or Equipment provided by Supplier to correct a nonconformance, commencing on the date of acceptance of such corrective Services or Equipment, as provided in Section 2.D., and extending for a period of time equal to the number of days in the Warranty Period that was applicable to the original Services or Equipment that were corrected (e.g., if the original Services had a 30-day Warranty Period, the corrected Services would have a 30-day Warranty Period from the date of acceptance). If Supplier fails to so correct such nonconformance within 15 days after receipt of Newmont’s Notice, Newmont may, in addition to any other rights and remedies available at law or in equity, elect to (i) retain a third party to correct the nonconformance at Supplier’s expense, or (ii) correct the nonconformance with Newmont personnel at Supplier’s expense.
G. Specifications may not be complete in every detail. Supplier shall comply with their manifest intent and general purpose, taken as a whole. Should any conflict, error, or omission appear in the Specifications, Supplier immediately shall give Notice to Newmont and Newmont will issue written clarifications. If Supplier proceeds with any of the Services or Equipment in question prior to receiving such instructions, all necessary corrections shall be at Supplier’s sole expense.
H. Supplier shall comply with all applicable laws, regulations, decrees, codes, ordinances, resolutions, and other acts of any applicable governmental authority(collectively, “Laws”) , including federal, regional, state, county, and local labor Laws (such as the Fair Labor Standards Act of 1938, as amended), tax Laws, Laws addressing bribery and corruption, and Laws addressing the preservation of health, safety, and the environment, including the Mine Safety and Health Act of 1977 (“MSHA”) and Occupational Safety and Health Act of 1970 (“OSHA”), each as amended, and other Laws that are applicable to this Agreement or Supplier’s performance of the Services. Supplier shall furnish personnel that are qualified, competent, fit, and skilled to perform the Services and shall ensure that each Supplier Party is properly licensed and certified if and as required by Laws, including any MSHA and OSHA certifications. Without limiting the generality of the foregoing sentences:
(i) Supplier represents, warrants, and covenants to Newmont, as of the Effective Date and the date that each invoice is submitted to Newmont, that in carrying out its responsibilities, neither Supplier, nor any of its equity holders, beneficial owners, partners, officers, directors, employees, agents, or representatives shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value: (A) to (1) any official or employee of any government, or any department, agency, or instrumentality thereof, (2) any political party or official thereof, or any candidate for political office, (3) any official or employee of any public international organization (as defined in 22 USC Section 288), or (4) any person acting in an official capacity for or on behalf of such government, department, agency, instrumentality, party, or public international organization, in each case for the purpose of influencing any act or decision of such party, or of such official, employee or candidate in his official capacity, or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage, or inducing such official, employee, party or candidate to use his or its influence with a government or instrumentality thereof to improperly or illegally affect or influence any act or decision of such government or instrumentality; or (B) to an officer, employee, agent, or representative of another company or organization, with the intent to influence or reward the recipient’s action(s) with respect to his company’s or organization’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce or reward the improper performance of the recipient’s duties.
(ii) Notwithstanding any other provision of this Agreement, Newmont may immediately suspend this Agreement in the event it should receive information which, in its sole discretion, it determines to be evidence of a breach by Supplier of any undertaking above. In the event of receipt of such evidence and/or such suspension, Newmont shall consult with Supplier and may thereafter immediately terminate this Agreement if Newmont, in its sole discretion, is reasonably satisfied that such a breach has occurred. In the event of such termination, Newmont shall have no liability to Supplier under this Agreement for any fees, reimb
Appears in 1 contract
Sources: On Site Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order change order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants represents, warrants, and covenants that (i1) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii2) the Services shall be performed in accordance with said standards, skill and judgment, (iii3) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv4) all Services performed shall be free from defect, (v5) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi6) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii7) Supplier is properly qualified, licensed, trained, organized, equipped, and financed to perform the Services, and (viii) 8) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Newmont’s Supplier Code of Conduct, both each of which are is available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When ▇ and, when Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes Newmont’s Code of conductConduct, to the extent applicable. Supplier shall (i1) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard (which Supplier acknowledges receiving a copy of) if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),and
Appears in 1 contract
Sources: Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants that (i) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii) the Services shall be performed in accordance with said standards, skill and judgment, (iii) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv) all Services performed shall be free from defect, (v) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii) Supplier is properly qualified, licensed, trained, organized, and financed to perform the Services, and (viii) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Supplier Code of Conduct, both of which are available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes of conduct. Supplier shall (i) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),, (ii) perform the Services only during regular working hours (as communicated to Supplier by Newmont) unless prior written consent is obtained from Newmont, (iii) conduct all activities on Newmont Premises so as to avoid or minimize delay or interference with any other person or entity performing work or services, and (iv) keep Newmont Premises clean and free of any debris and rubbish caused by the Services and, upon completion of the Services, leave such Newmont Premises clean and ready for use. Any personnel of Supplier or of its subcontractors which Newmont deems objectionable shall be removed from the jobsite and from performance of any further Services by Supplier upon Newmont’s request without additional cost to Newmont and shall be replaced promptly by Supplier with a person acceptable to Newmont. Without limiting the generality of the foregoing provisions, if Supplier will be present in any high risk and/or sensitive areas, including the refinery, carbon handling areas, ▇▇▇▇▇ preg ponds, refractory ore treatment plant, or any other area designated by Newmont as high risk and/or sensitive (collectively, “High Risk Areas”):
(A) Supplier shall submit to Newmont’s security department’s investigating officer a list of Supplier’s personnel assigned to work in the High Risk Area, which list shall include each individual’s full name and date of birth; Newmont may use such information to obtain a criminal background check on such individuals, the cost of which shall be charged to, and paid by, Supplier; (B) each of Supplier’s personnel shall report in person to Newmont’s security department’s investigating officer and may be required to show a driver’s license or other government-issued identification, to be fingerprinted, and to sign a release form for security clearance purposes prior to commencement of any Services; and (C) each of Supplier’s personnel entering a High Risk Area shall be subject to a high tech metal detector and/or hand scanner detection search for the detection of metals prior to entering a High Risk Area and upon exiting the High Risk Area. Supplier represents that it has received copies of the following Newmont policies: Acceptable Technology Use Standard.
D. As soon as practicable after completion of each milestone set forth in the Service Order (each, a “Milestone”) or, if there are no Milestones, after completion of the Services and/or delivery of the Equipment, Newmont may conduct such tests as it deems necessary, using its own sample or test data, to determine whether the applicable Services have been completed successfully and/or Equipment delivered and installed, and whether they meet the Specifications in all material respects. If Newmont determines, in its sole reasonable discretion, that such Services or Equipment fail to meet the Specifications, Newmont promptly shall give Notice to Supplier and shall specify with as much detail as practicable in which respects the Services or Equipment have failed to meet the Specifications. Supplier shall then, at its sole expense, promptly reperform the applicable Services or deliver substitute Equipment. In the event that Supplier does not successfully reperform such Services or redeliver Equipment within 15 days after the date of Newmont’s Notice, Supplier shall return all deposits or other amounts paid by Newmont with respect to such Services or Equipment, as applicable. Acceptance of any portion of the Services or of any Equipment shall be deemed to occur on the earlier of (i) the date on which Newmont notifies Supplier of acceptance, or (ii) the date which is 60 days from the date of completion of the applicable Milestone or of the Services or delivery of the Equipment, as applicable, unless prior to such date Newmont has notified Supplier that it has rejected such Services or Equipment or that there is a defect in the Services or Equipment. Acceptance of the Services and Equipment shall not otherwise be implied or assumed.
E. Where Supplier is not the manufacturer or direct supplier to Newmont of Equipment, Supplier shall obtain from each manufacturer or supplier of such Equipment such warranties with respect to quality, workmanship and performance as are generally made available for such types of Equipment, including (i) warranties that the Equipment shall strictly comply with any Specifications applicable thereto and be free from defects and fit for the purposes specified unless otherwise agreed in a written document signed by Newmont, and (ii) warranties that Newmont shall receive good and unencumbered title at the time title is transferred to Newmont. The warranties on such Equipment shall, at a minimum, extend for a period of 18 months from receipt of the Equipment by Newmont or 12 months from the date such Equipment is placed in regular operation, whichever is earlier, and cover all repair and replacement costs and expenses associated with or incurred as a result of non-compliance with the Equipment warranties. Supplier shall include appropriate language in Supplier’s purchase orders for such Equipment that makes each and every warranty obtained by Supplier run directly to Newmont and permits Newmont to enforce or pursue such warranties as if Newmont had purchased the Equipment itself. Supplier’s obligations under this Section 2.E. shall in no way diminish, reduce or otherwise relieve Supplier of, and shall be in addition to, its warranty obligations under Section 2.B.
F. Without limitation of any other rights or remedies of Newmont, if a defect in any of the Services in violation of any of the warranties set forth in Section 2.B.(ii), (iii), or (iv) (“Warranties” as applicable to Services) arises within one year of Newmont’s acceptance of such Services (“Warranty Period” as applicable to Services), or a defect in any Equipment in violation of any of the warranties set forth in Section 2.B.(v) or (vi) (“Warranties” as applicable to Equipment) arises within a period of 18 months from acceptance of the Equipment by Newmont or within 12 months from the date such Equipment is placed in regular operation, whichever is earlier (“Warranty Period” as applicable to Equipment), Newmont may require Supplier to correct promptly the nonconformance at Supplier’s expense. Supplier shall, upon receipt of a written request from Newmont to correct the nonconformance, promptly furnish, at no cost to Newmont, all labor, equipment, supervision, and materials necessary to correct such nonconformance and cause the Services or Equipment to comply fully with the Warranties. The Warranties shall apply to any Services performed or Equipment provided by Supplier to correct a nonconformance, commencing on the date of acceptance of such corrective Services or Equipment, as provided in Section 2.D., and extending for a period of time equal to the number of days in the Warranty Period that was applicable to the original Services or Equipment that were corrected (e.g., if the original Services had a 30-day Warranty Period, the corrected Services would have a 30-day Warranty Period from the date of acceptance). If Supplier fails to so correct such nonconformance within 15 days after receipt of Newmont’s Notice, Newmont may, in addition to any other rights and remedies available at law or in equity, elect to (i) retain a third party to correct the nonconformance at Supplier’s expense, or (ii) correct the nonconformance with Newmont personnel at Supplier’s expense.
G. Specifications may not be complete in every detail. Supplier shall comply with their manifest intent and general purpose, taken as a whole. Should any conflict, error, or omission appear in the Specifications, Supplier immediately shall give Notice to Newmont and Newmont will issue written clarifications. If Supplier proceeds with any of the Services or Equipment in question prior to receiving such instructions, all necessary corrections shall be at Supplier’s sole expense.
H. Supplier shall comply with all applicable laws, regulations, decrees, codes, ordinances, resolutions, and other acts of any applicable governmental authority (collectively, “Laws”), including federal, regional, state, county, and local labor Laws (such as the Fair Labor Standards Act of 1938, as amended), tax Laws, Laws addressing bribery and corruption, and Laws addressing the preservation of health, safety, and the environment, including the Mine Safety and Health Act of 1977 (“MSHA”) and Occupational Safety and Health Act of 1970 (“OSHA”), each as amended, and other Laws that are applicable to this Agreement or Supplier’s performance of the Services. Supplier shall furnish personnel that are qualified, competent, fit, and skilled to perform the Services and shall ensure that each Supplier Party is properly licensed and certified if and as required by Law, including any MSHA and OSHA certifications. Without limiting the generality of the foregoing sentences:
(i) Supplier represents, warrants, and covenants to Newmont, as of the Effective Date and the date that each invoice is submitted to Newmont, that in carrying out its responsibilities, neither Supplier, nor any of its equity holders, beneficial owners, partners, officers, directors, employees, agents, or representatives shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value: (A) to (1) any official or employee of any government, or any department, agency, or instrumentality thereof, (2) any political party or official thereof, or any candidate for political office, (3) any official or employee of any public international organization (as defined in 22 USC Section 288), or (4) any person acting in an official capacity for or on behalf of such government, department, agency, instrumentality, party, or public international organization, in each case for the purpose of influencing any act or decision of such party, or of such official, employee or candidate in his official capacity, or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage, or inducing such official, employee, party or candidate to use his or its influence with a government or instrumentality thereof to improperly or illegally affect or influence any act or decision of such government or instrumentality; or (B) to an officer, employee, agent, or representative of another company or organization, with the intent to influence or reward the recipient’s action(s) with respect to his company’s or organization’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce or reward the improper performance of the recipient’s duties.
(ii) Notwithstanding any other provision of this Agreement, Newmont may immediately suspend this Agreement in the event it should receive information which, in its sole discretion, it determines to be evidence of a breach by Supplier of any undertaking above. In the event of receipt of such evidence and/or such suspension, Newmont shall consult with Supplier and may thereafter immediately terminate this Agreement if Newmont, in its sole discretion, is reasonably satisfied that such a breach has occurred. In the event of such termination, Newmont shall have no liability to Supplier under this Agreement for any fees, reimbu
Appears in 1 contract
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants that (i) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii) the Services shall be performed in accordance with said standards, skill and judgment, (iii) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv) all Services performed shall be free from defect, (v) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii) Supplier is properly qualified, licensed, trained, organized, and financed to perform the Services, and (viii) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Supplier Code of Conduct, both of which are available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes of conduct. Supplier shall (i) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),
Appears in 1 contract
Sources: Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order change order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants represents, warrants, and covenants that (i1) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii2) the Services shall be performed in accordance with said standards, skill and judgment, (iii3) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv4) all Services performed shall be free from defect, (v5) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi6) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii7) Supplier is properly qualified, licensed, trained, organized, equipped, and financed to perform the Services, and (viii) 8) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Newmont’s Supplier Code of Conduct, both each of which are is available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When ▇ and, when Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes Newmont’s Code of conductConduct, to the extent applicable. Supplier shall (i1) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard (which Supplier acknowledges receiving a copy of) if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),, (2) perform the Services only during regular working hours (local time, 8:00am to 5:00pm, Monday – Friday) unless prior written consent is obtained from Newmont, (3) conduct all activities on Newmont Premises so as to avoid or minimize delay or interference with any other person or entity performing work or services, and
Appears in 1 contract
Sources: Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order change order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants represents, warrants, and covenants that (i1) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals Supplier’s industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii2) the Services shall be performed in accordance with said standards, skill and judgment, (iii3) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv4) all Services performed shall be free from defect, (v5) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi6) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii7) Supplier is properly qualified, licensed, trained, organized, equipped, and financed to perform the Services, and (viii) 8) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Newmont’s Supplier Code of Conduct, both each of which are is available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When ▇ and, when Supplier is engaged in activities on Newmont’s behalf, Supplier shall abide by the principles expressed in both codes Newmont’s Code of conductConduct, to the extent applicable. Supplier shall (i1) (a) comply with Newmont’s (b) comply with Newmont’s Acceptable Technology Use Standard (which Supplier acknowledges receiving a copy of) if, in the course of performing the Services, Supplier has access to Newmont’s information technology equipment or systems, and (b) at all times when Supplier is present on premises owned, operated, or otherwise controlled by Newmont (“Newmont Premises”), comply with the applicable provisions of Newmont’s site and workplace policies, standards, and procedures, including requirements relating to the areas of health, safety, and loss prevention, in each case, as such document may be amended from time to time by Newmont, in its sole discretion, and provided to Supplier (including in connection with any job hazard analysis training that may be provided to Supplier’s personnel by Newmont),and
Appears in 1 contract
Sources: Service Agreement
STATEMENT OF SERVICES. A. During the Term, Supplier shall perform the work described in the Service Order (the “Services”). Unless otherwise agreed in writing by the parties, any work performed by Supplier for Newmont prior to the Effective Date, which is not covered by a separate agreement between the parties and which falls within the specified scope of services set forth in the Service Order, shall be deemed to have been performed subject to the terms and conditions of this Agreement. Except as otherwise specified in the Service Order, Supplier shall provide all labor, supervision, materials, equipment, tools, consumables, transportation, fuel, maintenance, and such other items and services as are necessary to perform the Services, and shall be solely responsible for demobilization, job site cleanup, and disposition of all residual materials once Services are completed. At any time, without invalidating this Agreement or any portion hereof, Newmont may request reasonable additions, deletions, revisions, or changes to the Services of either a major or minor nature. Any such modification shall be evidenced by a Change Order change order to the Service Order, as issued by Newmont and executed or otherwise legally accepted by both parties (each, a “Change Order”), which shall specify the compensation agreed upon by the parties for such changes and the additional time, if any, allotted for the completion of the Services as so modified. This Agreement shall not be construed as an exclusive dealing contract for the provision of the Services and does not preclude Supplier from undertaking work of this general nature for others.
B. Supplier warrants represents, warrants, and covenants that (i1) it is fully competent and possesses the requisite skill, knowledge, resources, experience and expertise to perform the Services in accordance with the standards and the degree of skill and judgment which is normally exercised in the United States mining and metals Supplier’s industry and other relevant industry by those engaged in the performance of services similar in nature to the Services, (ii2) the Services shall be performed in accordance with said standards, skill and judgment, (iii3) the Services shall be performed in strict compliance with the requirements of this Agreement, including any specifications set forth in the Service Order (“Specifications” as applicable to Services), (iv4) all Services performed shall be free from defect, (v5) all equipment, supplies, and other tangible materials to be incorporated into the Services by Supplier and thereafter owned by Newmont, as specified in the Service Order (the “Equipment”), shall be in conformance with any specifications applicable thereto as set forth in the Service Order (“Specifications” as applicable to the Equipment) and be free from defects and of standard quality for the industry unless otherwise agreed in a written document signed by Newmont, (vi6) Supplier shall have good and valid title to all Equipment directly supplied by Supplier at the time title passes to Newmont, (vii7) Supplier is properly qualified, licensed, trained, organized, equipped, and financed to perform the Services, and (viii) 8) in performing the Services, Supplier shall not install or otherwise cause to exist on any of Newmont’s computer systems (hardware or software components) any computer instructions, circuitry, or other technological means whose purpose or effect is to disrupt, damage, or interfere with any Newmont computer facilities or equipment, or to provide unauthorized access to Newmont’s computer facilities or equipment, including any code containing viruses, Trojan horses, worms, traps, back doors, disabling devices or like destructive code or code that self-replicates. Supplier warrants all Services performed by its subcontractors in the same manner as if Supplier had performed the Services itself.
C. Supplier acknowledges having reviewed Newmont’s Code of Conduct and Newmont’s Supplier Code of Conduct, both each of which are is available under the About Us/Governance and Ethics tabs at ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. When ▇ and, when Supplier is engaged in activities on in
(i) Supplier shall submit to Newmont’s behalfsecurity department’s investigating officer a list of Supplier’s personnel assigned to work in the High Risk Area, which list shall include each individual’s full name and date of birth; Newmont may use such information to obtain a criminal background check on such individuals, the cost of which shall be charged to, and paid by, Supplier; (ii) each of Supplier’s personnel shall report in person to Newmont’s security department’s investigating officer and may be required to show a driver’s license or other government-issued identification, to be fingerprinted, and to sign a release form for security clearance purposes prior to commencement of any Services; and (iii) each of Supplier’s personnel entering a High Risk Area shall be subject to a high tech metal detector and/or hand scanner detection search for the detection of metals prior to entering a High Risk Area and upon exiting the High Risk Area.
D. As soon as practicable after completion of each milestone set forth in the Service Order (each, a “Milestone”) or, if there are no Milestones, after completion of the Services and/or delivery of the Equipment, Newmont may conduct such tests as it deems necessary, using its own sample or test data, to determine whether the applicable Services have been completed successfully and/or Equipment delivered and installed, and whether they meet the Specifications in all material respects. If Newmont determines, in its sole reasonable discretion, that such Services or Equipment fail to meet the Specifications, Newmont promptly shall give Notice (as such term is defined in Section 16, below) to Supplier and shall specify with as much detail as practicable in which respects the Services or Equipment have failed to meet the Specifications. Supplier shall then, at its sole expense, promptly reperform the applicable Services or deliver substitute Equipment. In the event that Supplier does not successfully reperform such Services or redeliver Equipment within 15 days after the date of Newmont’s Notice, Supplier shall abide return all deposits or other amounts paid by Newmont with respect to such Services or Equipment, as applicable. Acceptance of any portion of the principles expressed Services or of any Equipment shall be deemed to occur on the earlier of (1) the date on which Newmont notifies Supplier of acceptance, or (2) the date which is 60 days from the date of completion of the applicable Milestone or of the Services or delivery of the Equipment, as applicable, unless prior to such date Newmont has notified Supplier that it has rejected such Services or Equipment or that there is a defect in both codes the Services or Equipment. Acceptance of conductthe Services and Equipment shall not otherwise be implied or assumed.
E. Where Supplier is not the manufacturer or direct supplier to Newmont of Equipment, Supplier shall obtain from each manufacturer or supplier of such Equipment such warranties with respect to quality, workmanship and performance as are generally made available for such types of Equipment, including (1) warranties that the Equipment shall strictly comply with any Specifications applicable thereto and be free from defects and fit for the purposes specified unless otherwise agreed in a written document signed by Newmont, and (2) warranties that Newmont shall receive good and unencumbered title at the time title is transferred to Newmont. The warranties on such Equipment shall, at a minimum, extend for a period of 18 months from receipt of the Equipment by Newmont or 12 months from the date such Equipment is placed in regular operation, whichever is earlier, and cover all repair and replacement costs and expenses associated with or incurred as a result of non-compliance with the Equipment warranties. Supplier shall include appropriate language in Supplier’s purchase orders for such Equipment that makes each and every warranty obtained by Supplier run directly to Newmont and permits Newmont to enforce or pursue such warranties as if Newmont had purchased the Equipment itself. Supplier’s obligations under this Section 2.E. shall in no way diminish, reduce or otherwise relieve Supplier of, and shall be in addition to, its warranty obligations under Section 2.B.
F. Without limitation of any other rights or remedies of Newmont, if a defect in any of the Services in violation of any of the warranties set forth in Section 2.B.(2), (i3), or (4) (a“Warranties” as applicable to Services) arises within one year of Newmont’s acceptance of such Services (“Warranty Period” as applicable to Services), or a defect in any Equipment in violation of any of the warranties set forth in Section 2.B.(5) or (6) (“Warranties” as applicable to Equipment) arises within a period of 18 months from acceptance of the Equipment by Newmont or within 12 months from the date such Equipment is placed in regular operation, whichever is earlier (“Warranty Period” as applicable to Equipment), Newmont may require Supplier to correct promptly the nonconformance at Supplier’s expense. Supplier shall, upon receipt of a written request from Newmont to correct the nonconformance, promptly furnish, at no cost to Newmont, all labor, equipment, supervision, and materials necessary to correct such nonconformance and cause the Services or Equipment to comply fully with the Warranties. The Warranties shall apply to any Services performed or Equipment provided by Supplier to correct a nonconformance, commencing on the date of acceptance of such corrective Services or Equipment, as provided in Section 2.D., and extending for a period of time equal to the number of days in the Warranty Period that was applicable to the original Services or Equipment that were corrected (e.g., if the original Services had a 30- day Warranty Period, the corrected Services would have a 30-day Warranty Period from the date of acceptance). If Supplier fails to so correct such nonconformance within 15 days after receipt of Newmont’s Notice, Newmont may, in addition to any other rights and remedies available at law or in equity, elect to (1) retain a third party to correct the nonconformance at Supplier’s expense, or (2) correct the nonconformance with Newmont personnel at Supplier’s expense.
G. Specifications may not be complete in every detail. Supplier shall comply with Newmonttheir manifest intent and general purpose, taken as a whole. Should any conflict, error, or omission appear in the Specifications, Supplier immediately shall give Notice to Newmont and Newmont will issue written clarifications. If Supplier proceeds with any of the Services or Equipment in question prior to receiving such instructions, all necessary corrections shall be at Supplier’s (b) sole expense.
H. Supplier shall comply with Newmont’s Acceptable Technology Use Standard ifall applicable laws, in the course of performing the Servicesregulations, Supplier has access to Newmont’s information technology equipment or systemsdecrees, codes, ordinances, resolutions, and other acts of any applicable governmental authority (b) at all times when Supplier is present on premises ownedcollectively, operated, or otherwise controlled by Newmont (“Newmont PremisesLaws”), comply with the applicable provisions of Newmont’s site including privacy laws, labor laws, tax laws, laws addressing bribery and workplace policies, standardscorruption, and procedures, including requirements relating to laws addressing the areas preservation of health, safety, and loss preventionthe environment, each as amended, and other laws that are applicable to this Agreement or Supplier’s performance of the Services. Supplier shall furnish personnel that are qualified, competent, fit, and skilled to perform the Services and shall ensure that Supplier, Supplier’s subcontractors, and their respective employees and agents (collectively, “Supplier Parties”) are properly licensed and certified if and as required by Laws. Without limiting the generality of the first sentence of this Section 2.H.:
(1) Supplier represents, warrants, and covenants to Newmont, as of the Effective Date and the date that each invoice is submitted to Newmont, that in carrying out its responsibilities, neither Supplier, nor any of its equity holders, beneficial owners, partners, officers, directors, employees, agents, or representatives shall, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value: (a) to (i) any official or employee of any government, or any department, agency, or instrumentality thereof, (ii) any political party or official thereof, or any candidate for political office, (iii) any official or employee of any public international organization (as defined in 22 USC Section 288), or (iv) any person acting in an official capacity for or on behalf of such government, department, agency, instrumentality, party, or public international organization, in each casecase for the purpose of influencing any act or decision of such party, as or of such document official, employee or candidate in his official capacity, or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage, or inducing such official, employee, party or candidate to use his or its influence with a government or instrumentality thereof to improperly or illegally affect or influence any act or decision of such government or instrumentality; or (b) to an officer, employee, agent, or representative of another company or organization, with the intent to influence or reward the recipient’s action(s) with respect to his company’s or organization’s business, or to gain a commercial benefit to the detriment of the recipient’s company or organization, or to induce or reward the improper performance of the recipient’s duties.
(2) Notwithstanding any other provision of this Agreement, Newmont may immediately suspend this Agreement in the event it should receive information which, in its sole discretion, it determines to be amended from time to time evidence of a breach by Supplier of any undertaking in clause (1), above. In the event of receipt of such evidence and/or such suspension, Newmont shall consult with Supplier and may thereafter immediately terminate this Agreement if Newmont, in its sole discretion, and provided is reasonably satisfied that such a breach has occurred. In the event of such termination, Newmont shall have no liability to Supplier under this Agreement for any fees, reimbursements, or other compensation under this Agreement or for any other loss, cost, claim, or damage resulting, directly or indirectly, to Supplier from such termination, other than for Services already performed and/or goods already delivered.
I. Supplier understands that Newmont is committed to conducting all of its mining operations and related activities in an environmentally and socially responsible manner. To that end, Supplier shall make all commercially reasonable efforts (1) to perform the Services in a manner aligned with such principles, including the use of pollution-controlled equipment and facilities, if and as applicable, (2) to assess the potential impact of its activities on local communities and, when applicable, to integrate mitigation measures into its work plans, including ensuring that such measures are appropriately budgeted, (3) to timely address third party complaints received by it in connection with any job hazard analysis training work or goods provided hereunder (including from employees, subcontractors, suppliers, and local community members), (4) to identify opportunities that incorporate local procurement and employment, and (5) to the extent involving activities conducted for or on behalf of Newmont, to coordinate engagement with local community stakeholders through Newmont’s site-level Social Responsibility department.
J. Supplier commits to respect human rights in line with the Universal Declaration of Human Rights (“Human Rights”). Supplier represents, warrants, and covenants to Newmont, as of the date hereof, and the date that each invoice is submitted to Newmont hereunder, that no violation of Human Rights exists in any of its or its affiliates’ own operations or, to its knowledge, within the operations of any of its or its affiliates’ subcontractors and vendors (“Representation”). If, during the Term, Supplier becomes aware of any breaches of the Representation, it will promptly provide Notice thereof to Newmont. Notwithstanding any other provision of this Agreement, Newmont may immediately suspend this Agreement in the event it should receive information which, in its sole discretion, it determines to be provided to Supplier’s personnel evidence of a breach by Newmont),Supplier of any undertaking set
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Sources: Service Agreement