1. law, govt and politics

[RELEVANT STATE BODY LOGO]
[Insert address of relevant State body]
ph: [xx xxxxxx]
fx: [xx xxxxxx]
RFT Release Date: 8/2/2011
RFT Title: MGBs, Containers, Bins, Compactors & Associate Products &
Services & Spare Parts
Contract Number: NPN1.11
Note for Tenderers: Highlighted sections within this Deed will be completed
with the relevant information prior to execution.
Preferred Supplier Deed for Goods
Local Government Procurement Pty Ltd
ACN 117 201 046
ABN 34 578 553 267
LOCAL BUY PTY LTD
ACN 090 446 487
ABN 61 561 663 808
LGCS PTY LTD
ACN 094 805 964
ABN 90 602 350 622
and
[insert name of contractor]
NPN1.11 Part J Preferred Supplier Deed.doc
Page 1
Table of Contents
1.
DEFINITIONS & INTERPRETATION.................................................................... 6
1.1
1.2
2.
SUPPLY UNDER A STANDING OFFER FOR THE TERM .................................... 10
2.1
2.2
2.3
3
Page 2
Administration Fee..................................................................................... 23
Management Fee ....................................................................................... 24
Reporting .................................................................................................. 24
PERFORMANCE MONITORING .......................................................................... 26
8.1
8.2
9
Request for Quotations.............................................................................. 22
Orders ....................................................................................................... 22
ADMINISTRATION FEE, MANAGEMENT FEE AND REPORTING .................... 23
7.1
7.2
7.3
8
Contractor to fulfil all Orders ..................................................................... 17
Customer Contracts ................................................................................... 17
Conflict of Interest..................................................................................... 18
Contractor to inform itself ......................................................................... 19
Obligation to supply Deliverables at Prices set out in Price Schedule ......... 19
Minimum insurance requirements .............................................................. 19
Evidence of Insurances.............................................................................. 19
Compliance with laws and standards ......................................................... 20
Canvassing ................................................................................................ 20
Non-collusion............................................................................................. 20
General Indemnity ..................................................................................... 21
REQUEST FOR QUOTATION AND ORDERING PROCESS ................................ 22
6.1
6.2
7
Suspension of Contractor .......................................................................... 15
Suspension for Legitimate Business Reasons ............................................. 15
Suspension by the Principal ....................................................................... 16
SPECIFIC OBLIGATIONS OF THE CONTRACTOR ............................................ 17
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
5.11
6
Variation to Description of Deliverables ..................................................... 11
Acquisition of Additional Goods, Materials or Services ............................... 12
Prices for Deliverables ............................................................................... 12
Price Adjustment ....................................................................................... 13
Best Price .................................................................................................. 14
Maximum Ceiling Price .............................................................................. 14
Price Audit ................................................................................................. 15
SUSPENSION ....................................................................................................... 15
4.1
4.2
4.3
5
Standing Offer ........................................................................................... 10
Term ......................................................................................................... 11
Conflict ...................................................................................................... 11
DELIVERABLES AND PRICING .......................................................................... 11
3.1
3.2
3.3
3.4
3.5
3.6
3.7
4
Interpretation .............................................................................................. 6
Definitions ................................................................................................... 7
Monitoring of performance ........................................................................ 26
Exchange of Contractor information .......................................................... 26
TERMINATION ..................................................................................................... 26
NPN1.11 Part J Preferred Supplier Deed.doc
9.1
9.2
9.3
9.4
9.5
10
DISPUTE RESOLUTION ....................................................................................... 28
10.1
10.2
11
Confidentiality ........................................................................................... 28
Intellectual Property .................................................................................. 29
Privacy....................................................................................................... 29
Right to Information .................................................................................. 30
NO LIABILITY ...................................................................................................... 30
12.1
13
Procedure for Resolving Dispute ................................................................ 28
Continuing Obligations & Injunctive Relief ................................................. 28
CONFIDENTIALITY, INTELLECTUAL PROPERTY, PRIVACY & RIGHT TO
INFORMATION..................................................................................................... 28
11.1
11.2
11.3
11.4
12
Termination for cause ............................................................................... 26
Effect of Termination for cause by Principal .............................................. 27
Termination at Will .................................................................................... 27
Effect of Termination on Customer Contract and Rights and Obligations of
Parties ....................................................................................................... 27
Clauses which Survive Expiry or Termination............................................. 27
No Liability ................................................................................................ 30
GENERAL .............................................................................................................. 31
13.1
13.2
13.3
13.4
13.5
13.6
13.7
13.8
13.9
13.10
13.11
13.12
13.13
13.14
13.15
13.16
13.17
13.18
13.19
13.20
13.21
Amendment ............................................................................................... 31
Entire Understanding ................................................................................. 31
Further Assurance ..................................................................................... 31
Security/Performance Guarantee ............................................................... 31
Force Majeure ........................................................................................... 31
No Assignment or Novation ....................................................................... 31
Subcontracting .......................................................................................... 31
Marketing And Promotion .......................................................................... 32
Financial Viability ....................................................................................... 32
Notices ...................................................................................................... 32
Supplier Transition .................................................................................... 33
Meetings and Reporting............................................................................. 33
Legal Costs and Expenses ......................................................................... 33
GST ........................................................................................................... 33
Stamp Duty ............................................................................................... 33
Waiver and Exercise of Rights ................................................................... 33
Survival of Indemnities .............................................................................. 34
Enforcement of Indemnities ...................................................................... 34
No Merger ................................................................................................. 34
Negation of Employment Agency ............................................................... 34
Governing Law and Jurisdiction ................................................................. 34
SCHEDULE A ...................................................................................................................... 36
Deed Details............................................................................................................ 36
SCHEDULE B ...................................................................................................................... 37
Price Schedule......................................................................................................... 37
SCHEDULE C ...................................................................................................................... 38
Customers (in New South Wales) ............................................................................ 38
Customers (in Queensland) ..................................................................................... 38
NPN1.11 Part J Preferred Supplier Deed.doc
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Customers (in South Australia)................................................................................ 38
SCHEDULE D ...................................................................................................................... 40
Standard terms of Contract between a Customer and the Contractor ..................... 40
SCHEDULE E ....................................................................................................................... 51
Deliverables Specification ........................................................................................ 51
SCHEDULE F ....................................................................................................................... 52
Special Conditions ................................................................................................... 52
SCHEDULE G ...................................................................................................................... 53
Reporting Requirements.......................................................................................... 53
NPN1.11 Part J Preferred Supplier Deed.doc
Page 4
Preferred Supplier Deed
DATE
/
/2011
BETWEEN
LOCAL GOVERNMENT PROCUREMENT PTY LTD ACN 117 201 046
ACN 117 201 046
ABN 34 578 553 267
OF LEVEL 8, 28 MARGRET ST, SYDNEY NSW 2000
IN ITS CAPACITY AS AGENT OF THE LOCAL GOVERNMENT PROCUREMENT PARTNERSHIP
(PRINCIPAL)
LOCAL BUY PTY LTD
ACN 090 446 487
ABN 61 561 663 808
OF LEVEL 1, 25 EVELYN ST, NEWSTEAD QLD 4006 (PRINCIPAL)
LGCS PTY LTD AS TRUSTEE FOR THE LGCS TRUST NO. 1 AND TRADING AS
LOCAL GOVERNMENT CORPORATE SERVICES
ACN 094 805 964
ABN 90 602 350 622
OF 148 FROME STREET, ADELAIDE SA 5000 (PRINCIPAL)
AND
[INSERT NAME OF CONTRACTOR] [ACN] [ABN]
of [insert address of contractor]
(Contractor)
RECITALS
A.
The Principal issued the Request for Tender for the supply of the Deliverables.
B.
The Contractor submitted the Tender that was accepted by the Principal.
C.
The Principal and the Contractor have agreed to enter into a Preferred Supplier
Arrangement for the supply of the Deliverables on the terms set out in this Deed.
Page 5
NPN1.11 Part J Preferred Supplier Deed.doc
THIS DEED WITNESSES
1.
DEFINITIONS & INTERPRETATION
In this Deed unless expressed or implied to the contrary:
1.1
Interpretation
1.1.1
1.1.2
1.1.3
A reference to a party to the Deed includes:
1.1.1.1
in the case of a natural person, that person and his/her
personal representatives and assigns (transferees); and
1.1.1.2
in the case of a corporation, the corporation, its successors
and assigns (transferees).
Where a party is composed of 2 or more persons, each item of agreement
by the party binds:
1.1.2.1
all of those persons collectively; and
1.1.2.2
each of them as an individual.
A reference to:
1.1.3.1
the singular includes the plural, and vice versa;
1.1.3.2
a gender includes each other gender;
1.1.3.3
a person includes a corporation, a firm, and a voluntary
association;
1.1.3.4
an Act includes an Act that amends, consolidates or replaces
the Act and any subordinate legislation;
1.1.3.5
a section or other provision of an Act includes a section or
provision that amends, consolidates or replaces the section or
provision;
1.1.3.6
money is a reference to Australian dollars and cents;
1.1.3.7
a time of day is a reference to Australian Eastern Standard
Time;
1.1.3.8
a document includes, but is not limited to, any drawing,
specification, material, record or other means by which
information can be stored or reproduced; and
1.1.3.9
the words „include‟, „included‟ or „including‟ when those words
are used, will be interpreted as if they were preceded by the
further words „but not limited to‟ or the appropriate
grammatical derivative;
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1.1.4
No rule of construction or interpretation of the Deed shall apply to either
Principal‟s or the Customer‟s disadvantage solely because the Principal
prepared the Deed or either of them rely on a provision of the Deed.
1.1.5
Clause headings exist for convenience only and are to be disregarded
when interpreting the Deed.
1.1.6
All information delivered as part of the Deliverables supplied under this
Deed must be written in English. Where any document is a translation
into English, the translation must be accurate.
1.1.7
If a provision of the Deed is void, voidable, illegal or unenforceable, the
provision will be deemed deleted from the Deed.
1.2
Definitions
Administration Fee means the administration fee set out as Item 9 in Schedule A
payable by the Contractor to the Principal in accordance with clause 7.
Australian Standard Contract means an Australian standard contract approved
by Standards Australia or such other professional body as the Principal may from
time to time approve.
Authorised Officer means an authorised officer of the Principal (or in the case of
an Order, the Customer) whose details may be updated from time to time by
written notice to the Contractor.
Business Day means Monday to Friday excluding public holidays in [New South
Wales/Queensland/South Australia – delete as appropriate].
Commencement Date means the commencement date set out in Item 4 of
Schedule A.
Confidential Information means in relation to a party, information that:
(a)
is by its nature confidential;
(b)
is designated by that party as confidential; or
(c)
the other party knows or ought to know is confidential.
Consideration means consideration payable under this Deed in return for a
Taxable Supply, but does not include any amount on account of GST.
Contract Number means the contract number set out in Item 1 of Schedule A.
Contract Price means the total amount payable by the Customer to the Contractor
for the Deliverables ordered under a Customer Contract and calculated in
accordance with the relevant provisions under Schedule D.
Contractor’s Representative means the Contractor‟s authorised representative
for the purposes of this Deed and any Customer Contract whose details may be
updated from time to time by written notice.
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Customer means any entity listed in Schedule C as amended from time to time,
and such other councils, persons or entities which the Principal may from time to
time, in its discretion, determine by notification to the Contractor, including the
Principal acting in its own capacity.
Customer Contract means the contract that is made between the Contractor and
a Customer when the Customer places an Order, on the terms set out in Schedule
D, as provided for in clause 5.2.2 or as otherwise varied by agreement between the
parties in a manner permitted by this Deed.
Customer Data means information held by the Principal (including electronically)
about the Contractor which is made available to Customers.
Deed or Preferred Supplier Deed means this document, including any
attachments and Schedules.
Deliverables means the goods and/or services to be supplied by the Contractor in
accordance with this Deed and itemised in the Specification and the Price Schedule
as amended from time to time in accordance with this Deed.
Expiry Date means the expiry date set out in Item 4 of Schedule A.
Force Majeure Event means any occurrence or omission outside a party‟s
reasonable control, by which the party relying on the event is prevented from or
delayed in performing its obligations under this Deed other than:
(a)
a payment obligation;
(b)
an industrial dispute involving the Contractor‟s own staff or subcontractors staff; or
(c)
a change in the law which could have reasonably been anticipated prior
to the commencement date specified in Item 4 of Schedule A (including
for the avoidance of doubt any carbon trading scheme or emissions tax).
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as
amended from time to time).
GST has the same meaning given to that term in the GST Act.
Insolvent means in relation to a party means that it has:
(a)
a petition presented against it (that is not discharged or withdrawn within
10 Business Days of its presentation), an order made, a resolution passed
or a meeting summoned or convened to consider a resolution for its
winding up;
(b)
a receiver appointed over its assets or undertaking or any part of them;
(c)
ceased to pay its debts or suspended payment generally or became
insolvent or unable to pay its debts as and when they become due and
payable;
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(d)
an official manager, trustee, voluntary administrator, liquidator or
provisional liquidator appointed for all or any part of its assets or
undertaking;
(e)
ceased to trade;
(f)
been wound up or struck off;
(g)
entered into or resolved to enter into an arrangement, composition or
compromise with or assignment for the benefit of its creditors generally
or any class of creditors or proceedings are commenced to sanction such
an arrangement, composition or compromise other than for the purposes
of a bona fide scheme of solvent reconstruction or amalgamation.
Management Fee means the management fee payable by the Contractor to the
Principal in accordance with clause 7.2.
Month means a calendar month.
NPN Lead Agency means Local Government Procurement Pty Ltd (ACN 117 201
046) of Level 8, 28 Margret St, Sydney NSW 2000 which has been designated as the
lead agency for this National Procurement Network (NPN) Preferred Supplier
Arrangement.
Order means a written request by a Customer to the Contractor for the supply of
any or all of the Deliverables which incorporates the RFQ and the Contractor‟s RFQ
response (subject to any written variations agreed between the parties) and
Ordered has a corresponding meaning.
Preferred Supplier Arrangement means a continuing offer by the Contractor to
supply the Deliverables during the Term, on the Order of any Customer.
Price means the price payable for a Deliverable as set out in the Price Schedule and
includes the price expressed as a lump sum or a rate per unit of quantity, or if
applicable, means that price less any agreed discount or plus any agreed margin.
Price Schedule means the documents set out in Schedule B as updated from time
to time in accordance with clause 3.
Reporting Period means the reporting period set out in Item 10 of Schedule A.
Request for Quotation or RFQ means a document inviting price quotations from
the Contractor which defines the criteria of service, quality and delivery for the
Deliverables required by a Customer.
Request for Tender means the request for tender issued by the Principal and
described in Item 1 of Schedule A.
Security means the security in the amount and form specified by the Principal in its
discretion and set out in Item 8 of Schedule A.
Special Conditions means the special conditions set out in Schedule F which apply
to this Deed.
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Specification means the detailed description of the Deliverables as set out in
Schedule E.
Supply has the same meaning given to that term in the GST Act.
Suspension means a temporary postponement of the Contractor‟s right to supply
the Services to a Customer under this Deed for a period of time and „Suspend‟ has a
corresponding meaning.
Taxable Supply has the same meaning given to that term in the GST Act.
Tender means the Contractor's tender to the Principal in response to the Request
for Tender, which tender has been accepted by the Principal.
Term means the period of this Deed specified in clause 2.2.1 subject to any
extension in accordance with clause 2.2.2.
2.
SUPPLY UNDER A STANDING OFFER FOR THE TERM
2.1
Standing Offer
2.1.1
The Contractor must supply the Deliverables to a Customer (which
includes the Principal), on a non-exclusive basis, upon the terms of this
Deed and the relevant Customer Contract, at any time during the Term,
upon the receipt of an Order from that Customer.
2.1.2
The Contractor acknowledges and agrees that the obligation by the
Contractor under clause 2.1.1 constitutes a standing offer which is
capable of acceptance by any Customer at any time during the Term.
2.1.3
The Contractor acknowledges that this Deed does not:
2.1.4
2.1.3.1
imply that the Contractor is the exclusive provider of the
Deliverables to a Customer;
2.1.3.2
guarantee any particular volume of purchases or level of
Customer spend; or
2.1.3.3
oblige a Customer to place an Order for the Deliverables with
the Contractor.
The Contractor must make its pricing and terms under this Deed available
to any pre-existing Customer of the Contractor. Upon the written request
of the Customer, the Contractor will promptly terminate any pre-existing
contractual arrangements between them and enable that Customer to
access the Deliverables under the terms of this Deed. There will be no
penalty, fees or costs imposed on the Customer for this transition. The
change-over date between the contracts will be the first day of the next
calendar month unless otherwise stipulated by the Customer.
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2.2
2.3
Term
2.2.1
Subject to clause 2.2.2, this Deed commences on the Commencement
Date and expires on the Expiry Date, unless earlier terminated in
accordance with this Deed.
2.2.2
The Principal may in its sole discretion extend this Deed for the period or
periods specified as the extension period in Item 4 of Schedule A.
2.2.3
Notwithstanding the expiry or termination of this Deed, the terms of this
Deed will continue to apply to all Customer Contracts and related Orders
entered into during the Term which remain ongoing past the expiry or
termination of this Deed until such time as the relevant Customer
Contract and related Order is itself terminated or expires.
Conflict
2.3.1
3
3.1
Where any inconsistency or ambiguity arises between the different
documents which constitute this Deed, the order of precedence to resolve
the inconsistency or ambiguity shall be (listed in order of descending
importance):
2.3.1.1
Special Conditions;
2.3.1.2
Deed;
2.3.1.3
Specification;
2.3.1.4
Request for Tender; and
2.3.1.5
Tender.
2.3.2
Where the Contractor becomes aware of any inconsistency or ambiguity
in the documents which constitute this Deed, the Contractor shall
immediately bring the inconsistency or ambiguity to the attention of the
Principal who will issue instructions consistent with the order of
precedence set out in clause 2.3.1.
2.3.3
Once issued, the Principal‟s instructions pursuant to clause 2.3.2 shall be
binding on the parties with respect to that inconsistency or ambiguity.
DELIVERABLES AND PRICING
Variation to Description of Deliverables
3.1.1
The Contractor must notify the Principal in writing as soon as practicable
of any proposed variation to the description of a Deliverable offered under
this Deed.
3.1.2
A variation under clause 3.1.1 may include a variation to the description
of the item number, name or Specification of the Deliverable, but
excludes a variation:
3.1.2.1
to the Price of the Deliverable;
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3.1.3
3.2
that modifies or upgrades the Deliverable; or
3.1.2.3
that introduces a new Deliverable to the Price Schedule.
The Principal will notify the Contractor of its acceptance or rejection of
the proposed variation to the description of the Deliverable. If the
proposed variation is accepted by the Principal, the Price Schedule and
the Specification will be deemed to be amended to reflect, to the extent
agreed by the Principal, the proposed variations, as from the date of
notification of acceptance.
Acquisition of Additional Goods, Materials or Services
3.2.1
3.3
3.1.2.2
During the term of this Deed, the Contractor must:
3.2.1.1
notify the Principal in writing from time to time as soon as
practicable of any proposed variations to the range of existing
Deliverables offered under this Deed, or of any proposed new
goods/materials/services that the contractor commences
producing or sourcing and wishes to offer under this Deed
during the term that at the time of the relevant notice are not
included in the Specification; and
3.2.1.2
at the same time provide to the Principal the amended Price
Schedule incorporating any changes under clause 3.2.1.1.
3.2.2
The Principal will notify the Contractor of its acceptance or rejection of
the proposed variation to the range of the Deliverables. If the proposed
variation is accepted by the Principal, the Price Schedule and the
Specification will be deemed to be amended to reflect, to the extent
agreed by the Principal, the proposed variations, as from the date of
notification of acceptance.
3.2.3
Without limiting the operation of clause 3.2.1, the changes or additions
may eventuate as a result of superseded or discontinued products,
additional or complementary products, development and improvements,
new technologies, revised or amended standards.
3.2.4
Prior to exercise of the Principal‟s right under clause 3.2.2 to accept a
proposed variation, the Principal will provide other contractors under the
initial Request for Tender in relation to Deliverables with an option to
supply the same, amended or new goods, materials or services.
3.2.5
This clause 3.2 shall only apply to proposed variations which do not
materially deviate from the Specification and the basis on which the
Contractor‟s Tender was accepted.
Prices for Deliverables
3.3.1
Subject to clauses 3.4, 3.5 and 3.6, the price of the Deliverable to be
supplied under the Customer Contract shall be the Price for that
Deliverable, less any applicable discount or plus any applicable margin.
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3.3.2
3.4
Clause 3.3.1 does not prevent the Contractor from offering, or the
Contractor and Customer from negotiating to reduce the Price or margin
or increase the discount for a particular Deliverable provided that the
Price, margin or discount, is consistent with clause 3.5 of this Deed.
Price Adjustment
3.4.1
The Contractor:
3.4.1.1
must not vary the Price or discount of a Deliverable during
the first six month period of the Term;
3.4.1.2
may vary the Price or discount of a Deliverable after the first
six month period of the Term:
3.4.1.2.1
if the variation of the Price or discount of a
Deliverable was specifically set out in the Tender
(and accepted by the Principal); or
3.4.1.2.2
otherwise in accordance with this clause 3.4.
3.4.2
After the first six month period of the Term, but no more than once
during each six month period, the Contractor may apply in writing to the
Principal to vary the Price or discount of a Deliverable. Any such
application must include written substantiation for the Price or discount
variation.
3.4.3
The Principal may approve or reject the proposed variation in Price or
discount for the Deliverable by written notification to the Contractor. The
Principal is entitled to accept or reject a Price or discount variation
application in its absolute discretion. Where the Price or discount price
variation is accepted by the Principal, the Price Schedule will be deemed
to be amended to the extent agreed by the Principal, to include the varied
Price or discount and such variation will take effect from the date
specified by the Principal.
3.4.4
Without limiting clause 3.4.3, the Principal reserves the right to delete a
Deliverable from the Price Schedule or terminate this Deed if it considers
a Price or discount variation application to be unreasonable.
3.4.5
The Contractor is to notify the Principal of any decrease in the Price (or
improvement of discounts offered). The Contractor is to provide such
notification in writing as soon as possible. Upon receipt of such
notification, any decrease to the Price (or improvement of discounts
offered) will have immediate effect. An application can be submitted via
letter in writing addressed to the NPN Lead Agency.
3.4.6
An application to increase the Price of a Deliverable shall not exceed 5%
unless the circumstances set out in clause 3.4.7 apply in which case the
application to increase the Price of a Deliverable shall not exceed 10%.
3.4.7
Where extraordinary market circumstances have adversely affected the
Contractor‟s ability to continue to provide the Deliverables at the agreed
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Price under the Contract, an application to vary the Price or discount may
be submitted by the Contractor to the NPN Lead Agency. Any such
Application must be made in writing, and must be submitted to the NPN
Lead Agency as soon as practicable.
3.4.8
3.5
3.6
All requests for Price adjustments by the Contractor must be submitted to
the NPN Lead Agency who will respond, following discussions with other
NPN members, on behalf of all parties to the Request for Tender. The
NPN Lead Agency‟s decision is final and where the Price or discount price
variation is accepted by the Principal, the Price Schedule will be deemed
to be amended to the extent agreed by the Principal, to include the varied
Price or discount and such variation will take effect from the date
specified by the Principal.
Best Price
3.5.1
The Contractor represents that the Price, margin or discount for a
Deliverable will be no less favourable than the Price, margin or discount
applicable to any other public sector purchasers of substantially similar
goods and/or services or quantities of goods and/or services (the Similar
Deliverables) of the Contractor.
3.5.2
The Contractor agrees that where it offers a more favourable Price,
margin or discount to any other public sector purchaser of Similar
Deliverables, it will make the more favourable Price, margin or discount
available to all Customers entitled to the benefit of this Deed.
3.5.3
The Contractor agrees that a failure to comply with this clause 3.5 will
entitle the Principal to terminate this Deed in accordance with clause 9.1.
Maximum Ceiling Price
The Contractor acknowledges and agrees that:
3.6.1
the Price for each Deliverable in the Price Schedule is a maximum ceiling
price which can not be exceeded without the Contractor applying for a
price variation under clause 3.4 of this Deed.
3.6.2
the discount for each Deliverable in the Price Schedule is a minimum
discount which can not be reduced without the Contractor applying for a
discount variation under clause 3.4 of this Deed. (Delete if not
appropriate)
3.6.3
where it offers a temporary or periodic price, margin or discount (delete
as appropriate) special that is lower than a Price or margin, or greater
than a discount respectively, (delete as appropriate) specified in the Price
Schedule it will make available that lower Price or margin, or greater
discount, (delete as appropriate) to all Customers and will promptly notify
the Principal of such temporary or periodical Price, margin or discount
(delete as appropriate) special.
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3.7
Price Audit
Where the Price incorporates a discount or margin, the Principal, upon giving the Contractor
reasonable notice, has the right to inspect and audit the Contractor's cost and Price structure
at any time throughout the Term.
4
4.1
SUSPENSION
Suspension of Contractor
4.1.1
A Suspension is based upon an expectation by both the Contractor and
the Principal to resume the Deed after the period of Suspension, providing
the cause giving rise to the Suspension is resolved to the Principal‟s
satisfaction.
4.1.2
The Suspension period will form part of the defined Term of the Deed.
4.1.3
During the Suspension period, the Contractor and the Principal are
required to keep in regular contact about the prospects and timeframe for
resuming the Deed.
4.1.4
The Deed resumes at the end of the Suspension period. However, if both
the Contractor and the Principal agree in writing, the Contractor can
resume the Deed prior to the end date of the Suspension period.
4.1.5
During the Suspension period, the Principal will immediately notify any
existing or inquiring prospective Customers(s) of the Contractors
Suspension, and will provide reasons for the Contractor‟s Suspension to
any existing or inquiring prospective Customers(s).
4.1.6
During the Suspension period, the Principal may remove, amend or alter
the Contractor‟s Customer Data.
4.1.7
The Contractor may be suspended under the following circumstances:
4.1.8
4.2
4.1.7.1
where the Contractor has legitimate business reasons
affecting the Contractor‟s ability to supply the Deliverables
(“Suspension for legitimate business reasons”); or
4.1.7.2
where, in the reasonable opinion of the Principal, the
Contractor has breached or is likely to breach the Deed or a
Customer Contract (“Suspension by the Principal”).
During the Suspension period, the Contractor must not accept any new
Orders for the supply of the Deliverables from any Customer without the
prior written approval of the Principal.
Suspension for Legitimate Business Reasons
4.2.1
An application for Suspension may be made by the Contractor only for
legitimate business reasons affecting the Contractor‟s ability to supply the
Deliverables. Legitimate business reasons may include, but are not limited
to, business re-location or a Force Majeure Event.
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4.3
4.2.2
An application for Suspension by the Contractor for a legitimate business
reason must be an action of last resort.
4.2.3
An application for Suspension by the Contractor must be made in writing.
The Contractor must provide the Principal with evidence that the
Contractor has used their best endeavours to avoid the need for a
Suspension.
4.2.4
Within five (5) business days of receipt of an application for Suspension
for legitimate business reasons, the Principal will advise the Contractor in
writing of whether the Suspension application has been accepted or
declined.
4.2.5
During the period of Suspension approved for a legitimate business
reason, the Contractor must use their best endeavours to avoid the need
to request an extension of the Suspension period. If the Contractor needs
to extend the initial Suspension period for legitimate business reasons,
then the Contractor must provide the Principal with reasons in writing as
to why an extension of the Suspension period is required.
4.2.6
The maximum period for Suspension of the Contractor for a legitimate
business reason is thirty (30) days. However, if the Contractor has
submitted a request for an extension of the Suspension period to the
Principal, the Suspension period may be extended by the Principal upon
consideration of all the circumstances, including the best endeavours used
by the Contractor during the initial Suspension period, together with the
evidence provided by the Contractor to support an extension of the initial
Suspension period.
4.2.7
Within five (5) business days of receipt of a request for an extension of
the Suspension period, the Principal will advise the Contractor whether
the application for an extension of the initial Suspension period has been
accepted or declined.
Suspension by the Principal
4.3.1
The Principal may, by written notice, suspend the Contractor at any time
on terms and conditions specified by the Principal if, in the reasonable
opinion of the Principal, the Contractor has breached or is likely to breach
the Deed or a Customer Contract or as otherwise set out in this Deed.
4.3.2
The Principal will notify the Contractor in writing of their Suspension from
the Deed (a “Suspension Notification Form”). The Suspension Notification
Form must be signed by the Principal. The Suspension Notification Form
will contain:
4.3.3
4.3.2.1
the reason(s) for the Suspension; and
4.3.2.2
a review or expiry date for the Suspension.
The Contractor shall remain liable for the delivery of the Deliverables
Ordered prior to the Suspension date, as well as for all charges due
throughout the Suspension period.
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4.3.4
4.3.5
5
5.1
5.2
If the Contractor has been suspended under this clause 4.3, it will be at
the sole discretion of the Principal to resume the Deed. If the Principal
agrees to resume the Deed, the Principal will require:
4.3.4.1
payment in full from the Contractor of any outstanding
amounts of money the Contractor is required to pay under the
Deed within seven (7) business days; and
4.3.4.2
payment of a reactivation fee of $550.00 (inclusive of GST)
within thirty (30) days.
The Principal is under no obligation to provide the Contractor with a copy
of the Customer Data if the Principal has suspended the Contractor under
this clause 4.3. However, at the Contractor‟s request the Principal may
agree to provide the Contractor with a copy of their Customer Data, and if
so the Principal is entitled to charge a reasonable fee for service.
SPECIFIC OBLIGATIONS OF THE CONTRACTOR
Contractor to fulfil all Orders
5.1.1
The Contractor must fulfil all Orders which are accepted by it during the
Term in accordance with this Deed (including the Specification and the
Pricing Schedule) and the Customer Contract.
5.1.2
The Contractor acknowledges and agrees that a Customer may place an
Order with the Contractor for any one type or item of the Deliverables
either at one time or in instalments or in such quantity as may be
required from time to time.
5.1.3
If the Contractor does not agree to any additional conditions specified by
the Customer in an Order, the Contractor must promptly contact the
Customer to negotiate in good faith the application of any additional
conditions to the Order. Subject to the terms of this Deed, the Contractor
acknowledges that no additional condition may derogate from the
provisions contained in this Deed, including the terms set out in Schedule
D which will apply to each Customer Contract. To the extent that any
additional condition derogates from the terms of this Deed including the
terms set out in Schedule D, such additional condition will be void and will
have no effect.
5.1.4
Notwithstanding clause 5.1.3, if the Principal requests, the Contractor
must provide the Principal with a copy of each Order, in its final form,
within 14 days after agreeing the form of the Order with the Customer.
Customer Contracts
5.2.1
Subject to clause 5.2.2, the terms and conditions of the Customer
Contract will be those terms set out in Schedule D to this Deed and the
terms of the Order. The Contractor acknowledges that no amendments to
the terms set out in the Schedule D of this Deed may be agreed between
the Customer and Contractor without prior consent of the Principal.
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5.3
5.2.2
Where a Customer is bound to use its own standard terms and conditions
or wishes to use an Australian Standard Contract, that Customer may
require that the Contractor comply with those standard terms and
conditions or enter into an Australian Standard Contract. Where this
occurs, the Contractor is not bound to accept the Order. Where the
Contractor does accept the Order, the Customer‟s standard terms and
conditions or Australian Standard Contract shall apply to that Order and
take precedence to the extent of any conflict over the terms and
conditions set out in Schedule D.
5.2.3
The Principal may request a copy of the standard terms and conditions
used, an Order, RFQ and/or quotation (or associated information) from
the Contractor at any time and the Contractor shall provide the Principal
with such documentation or information within 7 days of the request (or
such other time period as may be agreed between the parties).
5.2.4
If on review of the standard terms and conditions referred to in clause
5.2.2 the Principal finds that those standard terms and conditions
substantially conflict with the terms and conditions of the Deed or the
Customer Contract, the Principal shall consult the Customer and
Contractor to resolve the matter.
5.2.5
If the matter cannot be resolved as set out in clause 5.2.4 above, the
Principal may deem the relevant Order as being non-compliant with the
terms of the Deed and as such not constituting a valid exception to the
Customer‟s mandated tendering processes.
5.2.6
Where the relevant Customer Contract is an Australian Standard Contract,
the Contractor must not supply the Deliverables until such time as the
relevant Australian Standard Contract has been executed by both the
Customer and Contractor.
Conflict of Interest
5.3.1
The Contractor warrants that, to the best of its knowledge, no conflict of
interest of the Contractor, its employees, agents or subcontractors exists
or is likely to arise in the performance of its obligations under this Deed.
5.3.2
The Contractor must:
5.3.3
5.3.2.1
notify in writing, and consult with, the Principal immediately
upon becoming aware of the existence or possibility of a
conflict of interest; and
5.3.2.2
comply with any direction given by the Principal in relation to
those circumstances design to manage that conflict of
interest.
For the purposes of this clause 5.3, "conflict of interest" includes
engaging in any activity, or obtaining any interest, likely to conflict with
the performance by the Contractor of, or to restrict the Contractor in
performing, its obligations under the Deed.
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5.3.4
5.4
The Principal may immediately terminate the Deed or Suspend the
Contractor in accordance with clause 4.3 if in its view a conflict of interest
exists which prevents the proper performance of the Deed.
Contractor to inform itself
The Contractor will be deemed to have:
5.5
5.4.1
examined carefully and to have acquired actual knowledge of the
contents of all of this Deed and any other information made available in
writing by the Principal to the Contractor for the purposes of the Request
for Tender and this Deed; and
5.4.2
satisfied itself as to the correctness and sufficiency of its response to the
Request for Tender and that the prices in the Price Schedule cover the
costs of complying with all of its obligations under the Deed and of all
matters and things necessary for the proper performance and completion
of the Deed.
Obligation to supply Deliverables at Prices set out in Price Schedule
The Contractor must supply the Deliverables at such Prices as specified in the Price
Schedule, as may be varied in accordance with clause 3.4, except where otherwise agreed
with the Principal in accordance with this Deed. The Prices, except as specifically provided,
are inclusive of all the costs, expenses, levies, taxes, duties and other fees that the
Contractor incurs in the supply of the Deliverables unless otherwise set out in the
Specification, the Pricing Schedule or Order.
5.6
Minimum insurance requirements
The Contractor must hold and maintain the following broad form liability policies of insurance
for the Term, or for such other period as may be specifically required by this Deed for the
particular policy:
5.7
5.6.1
public liability insurance for at least the amount specified in Item 5(a) of
Schedule A in respect of each claim; and
5.6.2
products liability insurance for at least the amount specified in Item 5(b)
of Schedule A for the total aggregate liability for all claims arising out of
the Contractor's products for the period of cover; and
5.6.3
workers compensation insurance in accordance with applicable legislation
for the Contractor's employees; and
5.6.4
any other type of policy of insurance the Contractor would reasonably be
expected to hold by a prudent operator of a similar business as that of
the Contractor.
Evidence of Insurances
5.7.1
The Contractor must, at reasonable request by the Principal, produce to
the Principal certified true copies of certificates of currencies, policies of
insurance and receipts showing that all premiums in respect of the
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insurances referred to in clause 5.6 have been paid and such insurances
are in place.
5.7.2
5.8
The Principal will organise access for the Contractor to the World Wide
Web based contract compliance system “mycontractor.com.au” which
unless otherwise requested, will be used as the method for lodgement of
the documents required in clause 5.7.1.
Compliance with laws and standards
The Contractor must in carrying out this Deed comply with:
5.9
5.8.1
all applicable statutory requirements; and
5.8.2
all applicable codes, policies, guidelines and Australian Standards
including those notified in writing by the Principal to the Contractor.
Canvassing
The Principal may immediately terminate the Deed or Suspend the Contractor in accordance
with clause 4.3 if in its view the Contractor, to solicit support for this Preferred Supplier
Arrangement or otherwise seek to influence an outcome of this Preferred Supplier
Arrangement, or a Customer Contract:
5.10
5.9.1
offers any inducement, fee or reward to any director or employee of the
Principal, any member or officer of a Customer or any person acting as an
advisor for the Principal; or
5.9.2
canvasses, lobbies or petitions any of the persons referred to in
paragraph 5.9.1; or
5.9.3
contacts any director or employee of the Principal about the Preferred
Supplier Arrangement or any process relating thereto, except as
authorised or contemplated by this Preferred Supplier Arrangement
including (but without limitation) for the purposes of discussing the
possible transfer to the employment of the Contractor of such director or
employee.
Non-collusion
The Principal may immediately terminate the Deed or Suspend the Contractor in accordance
with clause 4.3 if in its view the Contractor:
5.10.1
seeks to vary a Price under this Deed in accordance with an agreement or
arrangement with any other contractor which is a party to a similar
standing offer arrangement with the Principal; or
5.10.2
enters into any agreement or arrangement with any other contractor that
it shall refrain from entering a Customer Contract unless certain additional
conditions apply; or
5.10.3
causes or induces any person to enter such agreement as is mentioned in
either paragraph 5.10.1 or 5.10.2 above; or
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5.11
5.10.4
canvasses, lobbies or petitions any of the persons referred to in
paragraph 5.10.1 or 5.10.2 above in connection with this Deed or the
outcome of this Preferred Supplier Arrangement, or a Customer Contract;
or
5.10.5
offers or agrees to pay or give or does pay or give any sum of money,
inducement or valuable consideration directly or indirectly to any person
for doing or having done or causing or having caused to be done in
relation to any other similar standing offer or proposed similar standing
offer any act or omission; or
5.10.6
communicates to any person other than the Principal the amount of any
Price variation (except where such disclosure is made in confidence in
order to obtain quotations necessary for the preparation of the
documents substantiating the price variation).
General Indemnity
5.11.1
The Contractor is liable for and indemnifies and must keep indemnified,
the Principal and its officers, employees and agents against any claim,
loss or expense (including a claim, loss or expense arising out of personal
injury, death or damage to property) which any of them suffers, incurs or
is liable for (including reasonable legal costs on a solicitor and client
basis) (together the Loss) as a result of:
5.11.1.1
the defective or negligent supply or non-supply of any
Deliverables;
5.11.1.2
any unlawful, negligent, reckless or deliberately wrongful act
or omission of the Contractor (or its employees, agents or
subcontractors or their employees) in the performance of this
Deed; or
5.11.1.3
any breach by the Contractor of this Deed.
5.11.2
The Contractor's liability in respect of the indemnity given under this
clause 5.11 shall be reduced proportionately to the extent that any
unlawful, negligent, reckless, or deliberately wrongful act or omission of
the Principal, its officers, employees or agents caused or contributed to
the Loss.
5.11.3
Despite clause 5.11.1 and 5.11.2, the Contractor will not be liable for any
special, indirect, incidental or consequential damage arising out of or in
connection with this Deed.
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6
6.1
6.2
REQUEST FOR QUOTATION AND ORDERING PROCESS
Request for Quotations
6.1.1
A Customer may submit a RFQ with further information and specifications
of their requirements and/or required accessories, spare parts,
maintenance and training services.
6.1.2
Where the Contractor wishes to submit a quotation, the Contractor must
respond to a Customer RFQ in writing within the period set out in the
Customer‟s RFQ or as otherwise agreed with the relevant Customer.
6.1.3
If the Contractor is unable to meet any of the requirements of a specific
RFQ, this should clearly be noted in the Contractor‟s RFQ response.
6.1.4
Any free services which the Contractor nominates to supply, additional to
those specified and which the Contractor accepts, shall be carried out in
accordance with the details supplied by the Contractor at a time and place
approved by the Customer.
6.1.5
Customers are not bound to accept a RFQ response received from the
Contractor or any other supplier even where such RFQ is the lowest in
price.
6.1.6
If the Contractor‟s RFQ response is selected following the RFQ process,
the Customer shall accept the Contractor‟s offer by issuing an Order
pursuant to clause 6.2 below.
Orders
6.2.1
6.2.2
Each Order placed by a Customer with the Contractor shall incorporate
(and any inconsistency or ambiguity shall be resolved in the following
order of precedence - listed in order of descending importance):
6.2.1.1
the Customer Contract;
6.2.1.2
the requirements of the Order;
6.2.1.3
the requirements of the relevant RFQ;
6.2.1.4
the Contractor‟s RFQ response; and
6.2.1.5
the Specification.
Where the Contractor receives an Order from a person other than a
notified Authorised Officer or which does not list the Principal‟s relevant
Contract Number, the Contractor must:
6.2.2.1
not supply the Deliverables identified in the Order; and
6.2.2.2
refer the Order to the relevant Authorised Officer.
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6.2.3
A Contractor must not supply other categories of goods and/or services
other than those tendered and appointed for under the Deed without the
prior written approval of the Principal.
6.2.4
Subject to clauses 6.2.5 and 6.2.6, a Customer may include special
conditions in an Order which add to the Customer Contract terms and
conditions. These special conditions will only be valid should both the
Customer and Contractor agree to them. For the avoidance of doubt, the
Contractor shall be deemed to have agreed to such special conditions
where the special conditions are clearly set out in an RFQ issued by the
Customer and the Contractor commences provision of the Deliverables
pursuant to a resulting Order.
6.2.5
Where the special conditions are likely to constitute a material change to
the Customer Contract (determined by the parties acting reasonably and
in good faith), the parties must seek the approval of the Principal prior to
the Order being issued. Until such time as the Principal has approved the
use of the special conditions, any resulting Order shall not constitute a
valid exception to the Customer‟s mandated tendering processes.
6.2.6
If the Principal finds that the special conditions of an Order substantially
conflict with the terms and conditions of the Deed or the Customer
Contract, the Principal shall consult the Customer and Contractor to
resolve the matter.
If the matter cannot be resolved as set out above, the Principal may
deem the relevant Order as being non-compliant with the terms of the
Deed and as such not constituting a valid exception to the Customer‟s
mandated tendering processes.
7
ADMINISTRATION FEE, MANAGEMENT FEE AND REPORTING
The Contractor must pay to the Principal an Administration Fee and a Management Fee in
accordance with this clause.
7.1
Administration Fee
7.1.1
The initial Administration Fee set out in Item 9 of Schedule A shall be paid
by the Contractor to the Principal within 7 days of execution of this Deed.
7.1.2
On the first anniversary of the Commencement Date and subsequent
anniversaries, the annual Administration Fee set out in Item 9 of Schedule
A becomes owing and payable.
7.1.3
If the Principal elects to extend this Deed for further one year terms (or
part thereof) following the initial term, the annual Administration Fee set
out in Item 9 of Schedule A becomes owing and payable for each such 12
month period (or part thereof).
7.1.4
Where the Contractor has outstanding Administration Fees under this
Deed or another contract with the Principal, the Principal shall invoice the
Contractor for the sum owing.
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7.2
7.1.5
The Contractor shall pay an invoice issued pursuant to clause 7.1.4 within
30 days of the invoice date.
7.1.6
The Principal shall be entitled to immediately suspend or terminate this
Deed where the Contractor has failed to comply with clause 7.1.5 and
recover any unpaid Administration Fees as a debt due and owing to the
Principal.
Management Fee
7.2.1
7.3
The Management Fee is calculated at the end of each Reporting Period
during the Term, by multiplying:
7.2.1.1
the total (GST-exclusive) amount invoiced in the relevant
Month to all Customers in relation to the supply of the
Deliverables during that Month (based on the Prices in the
Pricing Schedule); and
7.2.1.2
the percentage shown in Item 6 of Schedule A.
7.2.2
The amount of the Management Fee will not under any circumstances be
shown as a separate charge in any quote or invoice to a Customer.
7.2.3
The Contractor agrees that the Principal may treat all purchases of
Deliverables by Customers as Orders under this Deed, whether or not the
Contract Number is quoted, unless the Contractor can provide evidence,
to the satisfaction of the Principal, that the purchase was made under
some other validly tendered contract between the Customer and the
Contractor.
7.2.4
The Contractor agrees that the Management Fee payable has been
allowed for in the Prices specified in the Price Schedule together with all
costs associated with the calculation and proving payment of the
Management Fee.
Reporting
7.3.1
7.3.2
Within 14 days after the end of each Reporting Period, the Contractor
shall provide to the Principal a Report (the Sales Report) via the
Principal‟s online reporting system [or other manual system] which
reports the:
7.3.1.1
total amount, exclusive of GST, which all Customers are liable
to pay in respect of all items invoiced by the Contractor during
that Reporting Period in respect of the Deed (or if no sales
have occurred, a „nil‟ return); and
7.3.1.2
the sales information as set out in Item 7 of Schedule A ("the
sales information"), or as the Principal requests in writing
from time to time.
Following receipt of a Sales Report, the Principal shall compile a tax
invoice based on the Sales Report and forward that invoice to the
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Contractor. The Contractor shall then forward payment to the Principal
within 14 days after the date of the invoice.
7.3.3
Where the Contractor has submitted three (3) consecutive „nil‟ returns
pursuant to clause 17.3.1.1, the Principal may request a meeting to be
held at the Principal‟s office (or if acceptable to the Principal by
telephone) to discuss the reasons for the „nil‟ returns. If so requested by
the Principal, the Contractor shall provide a detailed marketing and sales
engagement strategy for the next Reporting Period.
7.3.4
If requested in writing by the Principal, the Contractor must within 30
days after the end of the Contractor's financial year, provide to the
Principal a certificate prepared by an independent auditor confirming the
accuracy of all sales information provided by the Contractor as to
Deliverables sold or provided and the Management Fee paid or payable.
7.3.5
The Principal may at its own cost, take such measures as it considers
reasonable in the circumstances (including the appointment of an auditor)
to verify the amount of the Management Fee due to the Principal by the
Contractor.
7.3.6
If the measures taken in clause 7.3.4 and 7.3.5 verify that the Contractor
has not paid the Management Fee that is actually due to the Principal, the
Contractor must:
7.3.6.1
remit the difference between the Management Fee paid to the
Principal and the Management Fee actually due to the
Principal within 30 days of a direction from the Principal; and
7.3.6.2
at the discretion of the Principal, reimburse the Principal's
costs and expenses of the measures taken (including any
auditor's fees) under clause 7.3.5 to the Principal.
7.3.7
The Contractor shall during the Term of this Deed and for a 48 month
period after the Deed has expired or is terminated, keep secure all
relevant documents and information for the purposes of this clause and
give any auditor appointed by the Principal access to those documents
and information at all reasonable times.
7.3.8
In the event that a Contractor agrees to, or supplies the Deliverables to a
Customer during the Term, the Contractor is obliged to pay a
Management Fee for those Deliverables and any further deliverables
supplied to that Customer during the Term, on the terms of this Deed.
7.3.9
The Principal shall be entitled to immediately Suspend the Contractor
pursuant to clause 4.3 or terminate this Deed where the Contractor;
7.3.9.1
fails to attend a meeting and/or provide the detailed
marketing and sales engagement strategy requested by the
Principal pursuant to clause 7.3.3;
7.3.9.2
fails to implement the
engagement strategy;
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marketing
and
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sales
8
8.1
7.3.9.3
submits four „nil‟ returns; or
7.3.9.4
fails to comply with clause 7.3.2 in which case the Principal
may recover the unpaid Management Fees as a debt due and
owing to the Principal.
PERFORMANCE MONITORING
Monitoring of performance
The Contractor must meet with the Principal from time to time, as reasonably directed by the
Principal, to evaluate and monitor performance of this Deed (including Customer Contracts)
by the Contractor on the basis of the criteria specified by the Principal or otherwise agreed
by the parties.
8.2
Exchange of Contractor information
The Contractor authorises the Principal and its employees and agents to make available to
Customers information concerning the Contractor, including any information provided by the
Contractor to the Principal and any information relating to the Contractor's performance
under the Deed, or the Contractor's financial position.
9
9.1
TERMINATION
Termination for cause
9.1.1
Without prejudice to its rights at common law, the Principal may
immediately terminate this Deed, by written notice to the Contractor (a
Notice of Termination for Cause):
9.1.1.1
where the Contractor makes any statement, fact, information,
representation or provides material which is false, untrue, or
incorrect in a way which adversely affects the Deed;
9.1.1.2
where proceedings or investigations are commenced or
threatened by the Independent Commission Against
Corruption, Australian Competition and Consumer Commission
or similar public body against the Contractor including for
corrupt conduct or for collusive pricing;
9.1.1.3
where the Contractor commits a substantial breach of the
Deed that is not capable of remedy;
9.1.1.4
where the Contractor commits a substantial breach of the
Deed in a manner that is capable of remedy and does not
remedy the breach within 7 days of receiving a notice from
the Principal requiring it to do so (Notice of Breach), or such
further time, having regard to the nature of the breach and a
reasonable time to remedy it, as the Principal may reasonably
allow;
9.1.1.5
where the Contractor has been suspended from the Deed
pursuant to clause 4 for more than thirty (30) days;
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9.2
9.5
9.1.1.7
as otherwise provided for in this Deed.
If the Principal terminates this Deed under clause 9.1.1 the Principal may:
9.2.1.1
contract with any other person to complete the provision of
the Deliverables including but not limited to any Order
remaining to be filled; and
9.2.1.2
deduct reasonable loss or damages arising from or in
connection with the termination, including any loss or
damages incurred by a Customer under any Customer
Contract (which may be ascertained and certified by the
Principal), from any money due, or which may become due to
the Contractor (whether under this Deed or any Customer
Contract) and/or from the Security (if any); and
9.2.1.3
recover from the Contractor in an appropriate court the
balance of any monies remaining unpaid as a debt due and
payable by the Contractor to the Principal.
9.2.1.4
The Principal's termination under clause 9.1.1 will not affect
any Customer Contract unless the context requires it.
Termination at Will
9.3.1
9.4
if the Contractor becomes Insolvent; or
Effect of Termination for cause by Principal
9.2.1
9.3
9.1.1.6
No earlier than 12 months after the Commencement Date, the Principal
may, upon giving the Contractor not less than one Month's prior written
notice, terminate this Deed. At the end of the notice period, this Deed will
be at end.
Effect of Termination on Customer Contract and Rights and Obligations of
Parties
9.4.1
Termination of this Deed under clause 9 by the Principal will not affect
any Customer Contract unless the Customer requires for the relevant
Customer Contract to be terminated.
9.4.2
Termination of the Deed under clause 9 will not affect the rights and
obligations of the parties that have accrued up to the date of termination.
Clauses which Survive Expiry or Termination
Clauses 1, 2.3, 5.6, 5.7, 5.11, 7, 8.2, 9.5, 11, 12 and 13 (inclusive) shall survive the expiry or
termination of this Deed.
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10 DISPUTE RESOLUTION
10.1
10.2
Procedure for Resolving Dispute
10.1.1
The parties agree to attempt in good faith to resolve through negotiation
any dispute regarding the Deed.
10.1.2
If a dispute arises between the parties which cannot be resolved at an
operational level, either party may give written notice of the dispute to
the other party (a “Dispute Notice”). A Dispute Notice must adequately
identify and provide details of the dispute.
10.1.3
Following receipt of a Dispute Notice the following process shall be
followed:
10.1.3.1
each party must submit the dispute to one of its senior
officers who has not previously been involved in the dispute
(“Negotiators”) within 3 Business Days of receipt of the
Dispute Notice.
10.1.3.2
the Negotiators must meet as soon as practicable to resolve
the dispute; and
10.1.3.3
if the Negotiators cannot resolve the dispute within 14 days of
its reference to them (or such other time period as may be
agreed between them), either party may submit the dispute to
arbitration in accordance with, and subject to, The Institute of
Arbitrators & Mediators Australia Arbitration Rules. The
arbitrator‟s decision shall be final and the arbitrator‟s costs
shall be borne by the losing party unless otherwise
determined by the arbitrator.
Continuing Obligations & Injunctive Relief
10.2.1
Notwithstanding the existence of a dispute each party must continue to
perform its obligations under each Customer Contract.
10.2.2
Nothing in this clause 10 shall prejudice the right of a party to institute
proceedings to enforce payment due under the Deed or to seek injunctive
or urgent interlocutory relief in respect of a dispute under this clause 10
or any matter arising under the Deed.
11 CONFIDENTIALITY, INTELLECTUAL PROPERTY, PRIVACY & RIGHT TO
INFORMATION
11.1
Confidentiality
11.1.1
Subject to clauses 11.1.2 and 11.1.4, neither party is to disclose any
Confidential Information in connection with this Deed to any person other
than the other party without first obtaining the written consent of the
other party.
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11.2
11.1.2
Either party may disclose the Confidential Information to its officers,
employees and agents, professional advisors or a Customer where the
disclosure is necessary to carrying out their duties for the purposes of this
Deed.
11.1.3
Each party must ensure that the Confidential Information is used solely in
connection with, or for the purposes of, the provision of Deliverables or
administering the Deed.
11.1.4
This clause 11.1 does not affect either party‟s obligation to disclose any
Confidential Information that is required to be disclosed by law (including
for the avoidance of doubt under right to information legislation).
Intellectual Property
11.2.1
11.3
Unless otherwise set out in the Specification, this Deed shall not affect the
intellectual property rights of either party.
Privacy
11.3.1
Where the Contractor or its subcontractors have access to or are
responsible for holding personal information, the Contractor must:
11.3.1.1
comply with all relevant information privacy legislation; and
11.3.1.2
ensure that personal information is protected against loss,
unauthorised access, use, modification or disclosure, and
against other misuse; and
11.3.1.3
not use personal information other than for the purpose of the
Deed, unless required or authorised by law; and
11.3.1.4
not disclose the personal information without the written
agreement of the Principal, unless required or authorised by
law; and
11.3.1.5
not transfer the personal information outside Australia without
the consent of the Principal; and
11.3.1.6
ensure that its personnel do not access, use or disclose the
personal information other than in the performance of their
duties; and
11.3.1.7
immediately notify the Principal if it becomes aware that a
disclosure of personal information is, or may be, required or
authorised by law; and
11.3.1.8
fully cooperate with the Principal, to enable the Principal to
respond to applications for access to, or amendment of, a
document containing an individual‟s personal information and
to privacy complaints; and
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11.3.1.9
11.3.2
11.4
comply with such other privacy and security requirements as
the Principal reasonably advises the Contractor from time to
time.
Where the Principal is not reasonably satisfied, on the basis of information
provided to it by the Contractor, that proper practices are in place to
ensure that the privacy and disclosure of information requirements for
Personal Information are being observed and maintained, the Principal
may at any time require the Contractor to make its subcontractors aware
of its obligations, in accordance with this clause 11.3 including, when
requested by the Principal, requiring any subcontractor to promptly sign a
privacy undertaking in a form approved by the Principal.
Right to Information
11.4.1
The Contractor accepts and acknowledges that the Principal may be
subject to the provisions of right to information legislation and that
information relating to the Request for Tender, Tender, this Deed,
Customer Contract, RFQ and/or Order may be subject to disclosure to
third parties.
11.4.2
The Contractor shall clearly label
cause harm if disclosed (for
information, information with a
reasoning supporting its position
the Principal.
11.4.3
Notwithstanding clause 11.4.2 above, the Contractor accepts and
acknowledges that the Principal is unable to guarantee that any
information provided by the Contractor to the Principal will not be
disclosed under the provisions of the right to information legislation.
11.4.4
The Contractor accepts and acknowledges that there is no obligation
whatsoever on the Principal to advise the Contractor of the receipt of a
request for information, the decision made (or reasoning behind any such
decision) or the details surrounding the release of any documents.
any information which it believes may
instance; trade secrets, confidential
commercial value) and provide the
prior to disclosing such information to
12 NO LIABILITY
12.1
No Liability
12.1.1
Subject to clause 12.1.2, the Contractor acknowledges and agrees that
subject to clause5.11.2, the Principal is not liable to the Contractor for
any loss, cost, expense or damage (including by way of a claim under
contract, tort (including negligence) statute or otherwise) arising out of or
in connection with this Deed except when the Principal is acting in its own
capacity as a Customer.
12.1.2
To the extent any liability of the Principal cannot be excluded by law, and
to the maximum extent permitted by law, the Principal's liability under
this Deed shall be limited to one hundred dollars ($100.00).
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13 GENERAL
13.1
Amendment
This Deed may only be varied or replaced by a document duly executed by the parties.
13.2
Entire Understanding
This Deed contains the entire understanding between the parties as to the subject matter
contained in it.
All previous deeds, representations, warranties, explanations and
commitments, expressed or implied, affecting this subject matter are superseded by this
Deed and have no effect.
13.3
Further Assurance
Each party must promptly execute and deliver all documents and take all other action
necessary or desirable to effect, perfect or complete the transactions contemplated by this
Deed.
13.4
13.5
13.6
Security/Performance Guarantee
13.4.1
The Contractor shall on or before the date of this Deed provide to the
Principal the Security.
13.4.2
The purpose of the Security is to secure the due and proper performance
by the Contractor of its obligations under this Deed.
13.4.3
If the Contractor fails to perform (or to properly perform) any of its
obligations under this Deed, the Principal may have recourse to the
Security, or part of the Security on demand.
Force Majeure
13.5.1
A party will not be entitled to exercise its rights or remedies upon the
default of another party to the Deed (whether at common law or pursuant
to the Deed) if that default is caused by a Force Majeure Event.
13.5.2
Without limitation, where the Force Majeure Event continues for a period
of more than 14 days, the Principal may terminate the Deed by giving
written notice to the Contractor.
No Assignment or Novation
The Contractor must not assign or novate this Deed without first obtaining the prior written
consent of the Principal.
13.7
Subcontracting
The Contractor may subcontract part or all of the performance of any of the Deliverables
under a Customer Contract to a subcontractor approved in writing by the Principal from time
to time or identified in Schedule A. The Contractor will continue to be bound by, and
responsible for the performance of, the Customer Contract and will remain responsible for
the acts and omissions of any sub-contractor as if such acts and omissions were those of the
Contractor itself, notwithstanding that part or all of it may have been subcontracted.
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13.8
13.9
13.10
Marketing And Promotion
13.8.1
No information relating to the acceptance of any Tender or the provision
of the Deliverables under the Deed may be published in any advertising
medium without the prior written approval of the Principal. The written
approval must clearly indicate the precise material to which the
information is to be provided.
13.8.2
The Contractor may only use the Principal‟s logo in the Contractor‟s
marketing strategy upon receipt of the Principal‟s written confirmation to
do so. Such use of the Principal‟s logo shall be solely limited to the
marketing of the Contractor‟s services as they apply to the provision of
the Deliverables.
13.8.3
The Contractor shall actively promote the Deed during the Term, and
liaise with the Principal to establish a marketing plan that ensures that the
Contractor‟s marketing strategy is effective and consistent with the
Principal‟s marketing strategies.
13.8.4
The Contractor shall ensure that all information contained on the
Principal‟s website about their company and the Deliverables is kept up to
date at all times and advise the Principal promptly when changes need to
be made.
Financial Viability
13.9.1
The Contractor shall advise the Principal immediately if the Contractor‟s
financial viability is compromised to the extent that the compromise could
reasonably be considered to be a risk to the provision of the Deliverables
in accordance with the terms and conditions of this Deed.
13.9.2
The Contractor shall provide the Principal with audited financial
statements and/or a current original signed letter from a qualified
accountant addressed to the Principal which details and explains the
current and prospective financial viability of the Contractor, within
fourteen (14) working days of the date of issue of any letter from the
Principal to the Contractor requesting such.
13.9.3
Where the Principal has reasonably held concerns about the financial
viability of the Contractor, the Principal shall be entitled to suspend the
Contractor pursuant to clause 4.3.
Notices
13.10.1
Notices under the Deed may be delivered by pre-paid postage or certified
mail, by hand, or by facsimile transmission. Notices are deemed given
5 days after deposit in the mail with postage pre-paid or certified, when
delivered by hand, or if sent by facsimile, upon completion as evidenced
by a facsimile transmission record. Where a notice is given by facsimile
the original document must be posted on the same day as the
transmission is sent. The addresses for service of notices are the
addresses as shown in this Deed.
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13.10.2
13.11
A party may change its address for service of notices by giving written
notice to the other party to the Deed.
Supplier Transition
In the event that a Customer changes its supplier of the Deliverables, and this change of
suppliers involves the transfer of infrastructure or information to occur between a previous
supplier and the Contractor or the Contractor and a new supplier, the Contractor shall at no
additional cost to the Customer do all things reasonably within its power to ensure the
transition is efficient, orderly, prompt and timely.
13.12
Meetings and Reporting
The Contractor shall at no extra cost supply such reports and attend such meetings as are
reasonably requested by the Principal from time to time.
13.13
Legal Costs and Expenses
Each party must pay its own legal costs and expenses in relation to the negotiation,
preparation and execution of this Deed and other documents referred to in it, unless
expressly stated otherwise.
13.14
13.15
GST
13.14.1
In this clause words that are defined in the GST Act have the same
meaning as their definition in the GST Act.
13.14.2
Except as otherwise provided by this clause, all Consideration payable
under this Deed in relation to any supply is exclusive of GST.
13.14.3
If GST is payable in respect of any supply made by a supplier under this
Deed, subject to clause 13.14.4 the recipient will pay to the supplier an
amount equal to the GST payable on the supply at the same time and in
the same manner as the Consideration for the supply is to be provided
under this Deed.
13.14.4
The supplier must provide a tax invoice to the recipient before the
supplier will be entitled to payment of the GST payable under clause
13.14.3.
Stamp Duty
The Contractor must pay all stamp duty (including all fines and penalties except those arising
from the default of another party) on this Deed and any document executed under it.
13.16
Waiver and Exercise of Rights
13.16.1
A single or partial exercise or waiver of a right relating to this Deed does
not prevent any other exercise of that right or the exercise of any other
right.
13.16.2
No party will be liable for any loss or expenses incurred by another party
caused or contributed to by the waiver, exercise, attempted exercise,
failure to exercise or delay in the exercise of a right.
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13.17
Survival of Indemnities
Each indemnity in this Deed is a continuing obligation, separate and independent from the
other obligations of the parties and survives termination of this Deed.
13.18
Enforcement of Indemnities
It is not necessary for a party to incur expense or make payment before enforcing a right of
indemnity conferred by this Deed.
13.19
No Merger
The warranties, undertakings, deeds and continuing obligations in this Deed do not merge
on completion.
13.20
13.21
Negation of Employment Agency
13.20.1
The Contractor must not represent itself or allow itself to be represented
as being an employee or agent of the Principal or any Customer.
13.20.2
The Contractor will not, by virtue of the Deed, be or become an employee
or agent of the Principal or any Customer.
13.20.3
Nothing in this Deed is to be taken or construed as creating the
relationship of a partnership, joint venture or principal and agent,
between any of the parties to the Deed.
Governing Law and Jurisdiction
This Deed is governed by and is to be construed in accordance with the laws of (New South
Wales/Queensland/South Australia – delete as appropriate). Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of (New South
Wales/Queensland/South Australia – delete as appropriate) and waives any right to object to
proceedings being brought in those courts.
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EXECUTED by the parties as a deed
EXECUTED by LOCAL GOVERNMENT
PROCUREMENT PTY LTD ACN 117
201 046 (as agent of the Local
Government Procurement Partnership) by
being signed by those persons who are
authorised to sign for the company:
)
)
)
)
EXECUTED by LOCAL BUY PTY
LTD ACN TBA by being signed by
those persons who are authorised to
sign for the company:
)
)
)
)
EXECUTED by LOCAL
GOVERNMENT CORPORATE
SERVICES PTY LTD ACN TBA
by being signed by those persons
who are authorised to sign for the
company:
)
)
)
)
...........................................................................
Director
...........................................................................
Full name
...........................................................................
Usual address
...........................................................................
Director (or Company Secretary)
...........................................................................
Full name
...........................................................................
Usual address
EXECUTED by ## ACN ## by being signed
by those persons who are authorised to sign
for the company:
)
)
)
)
...........................................................................
Director
...........................................................................
Full name
...........................................................................
Usual address
...........................................................................
Director (or Company Secretary)
...........................................................................
Full name
...........................................................................
Usual address
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Schedule A
Deed Details
Item 1
Request for Tender for Contract Number NPN1.11 issued on 8/2/2011
Item 2
Contractors Name:
Item 3
Approved Subcontractors (if any):
Item 4
Term: Two (2) years
Commencement Date: xxxxxxxxx
Expiry Date: xxxxxxxxxxxx
Item 5
Extension Period: Two (2) terms each of up to twelve (12) months.
Extension commencement date: xxxxxxxxxxxx
Latest Expiry date: xxxxxxxxxxxx
Broad Form Liability Insurance Policy Amount
(a)
(b)
Public Liability Insurance Limit of Indemnity: $AUS_10 Million
Product Liability Insurance Limit of Indemnify: $AUS_5 Million
(Insert any amounts for other type of insurance requirements)
Item 6
Management Fee Rate: 2.5%
Item 7
Sales Information: Per Specification clauses 2.15 and 2.16 (Reporting)
Item 8
Security:
Amount: NIL
Form: NIL
Item 9
Initial Administration Fee:
New South Wales - $0
Queensland & South Australia - $550 (incl GST)
Annual Administration Fee:
New South Wales - $0
Queensland & South Australia - $275 (incl GST)
Reactivation Fee:
New South Wales - $0
Queensland & South Australia - $550 (incl GST)
Item 10 Reporting Period: New South Wales – Monthly
Queensland & South Australia - Quarterly
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Schedule B
Price Schedule
Note for Tenderers: The Contractor‟s tendered pricing will be inserted into this Schedule.
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Schedule C
Customers (in New South Wales)






Any council within the meaning of the Local Government Act 1993 (NSW)
Any Aboriginal Land Council within the meaning of the Aboriginal Land Rights Act
1983 (NSW);
any Voluntary Regional Organisation of Councils as referred to in the Local
Government Act 1993 (NSW);
the Local Government Association of New South Wales;
the Shires Association of New South Wales;
the Principal acting in its own capacity.
This contract will also be available to the following bodies where permitted by their
procurement policies or guidelines:


Specific non-profit organisations and/or charities, where approved by Local
Government Procurement Pty Ltd.
New South Wales State Government bodies where a State Contracts Control Board
(SCCB) contract does not exist for the deliverables listed under this Preferred Supplier
Deed.
Customers (in Queensland)









The Principal acting in its own capacity.
Queensland Local Governments.
Queensland Community Councils.
Queensland Regional Organisation of Councils (ROCS).
Queensland statutory authorities.
Queensland water authorities.
Queensland Ports.
Queensland State Government departments and agencies.
Queensland based charity or not-for-profit organisations.
And any other organisation that may reasonably be considered as a Queensland public
sector, government or government related body.
Where acceptable to the Contractor and Local Buy, Northern Territory local governments and
public sector bodies may also purchase the Deliverables via this Preferred Supplier
Arrangement. The Contractor shall report Northern Territory sales and pay the related fees
to Local Buy.
Customers (in South Australia)

Page 38
Any council or subsidiary constituted within the meaning of the Local Government
Act 1999 (SA) as amended and other organisations as follows: Adelaide Hills
Region Waste Management Authority, Adelaide Parklands Authority, Centennial
Park Cemetery Authority, Central Local Government Region, East Waste
Management Authority, Eastern Health Authority Inc., Eyre Peninsula Local
Government Association, Fleurieu Regional Authority, Gawler Flood Plains
NPN1.11 Part J Preferred Supplier Deed.doc
Management Authority, Highbury Landfill Authority, Local Government Risk
Services, Local Government Systems Inc., Local Super Pty Ltd, Murray & Mallee
Local Government Association, Murray Mallee Community Transport Scheme,
North Adelaide Waste Management Authority, Nuriootpa Centennial Park
Authority, Outback Areas Community Development Trust, Provincial Cities SA,
Queen Elizabeth Park Trust, Rundle Mall Authority, South East Local Government
Association, Southern & Hills Local Government Association, Southern Eyre
Peninsula Subsidiary, Southern Region Waste Resource Authority, Waste Care,
Waterproofing Northern Adelaide Regional Subsidiary, West Beach Trust,
Western Region Waste Management Authority, Local Government Association of
South Australia, Local Government Finance Authority of South Australia or the
Principal acting in its own capacity.
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Schedule D
Standard terms of Contract between a Customer and the Contractor
STANDARD TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS
1.
Formation of Customer Contract and Interpretation
1.1
The contract between the Customer and the Contractor comprises these terms and
conditions and the Order (together the Customer Contract). To the extent of any
inconsistency, these terms and conditions take precedence.
1.2
The Customer Contract shall commence on the date specified in the relevant Order
and shall expire, unless terminated earlier, once the Deliverables have been supplied
to the satisfaction of the Customer.
1.3
Except where the context otherwise requires, the definitions and rules of
interpretation set out in clause 1 of the deed entitled Preferred Supplier Deed to
which this Customer Contract forms a schedule shall apply to this Customer Contract.
2.
Entire Agreement
2.1
The Customer Contract constitutes the only terms that apply to a Customer‟s
purchase of Deliverables.
2.2
A Customer will not be bound by any other terms of the Contractor, even if a
Customer has signed an invoice or similar document which incorporates additional
terms.
3.
Incorporation of Schedules
3.1
The Customer and the Contractor agree that Schedule B (Price Schedule) and
Schedule E (Deliverables Specification) of the Deed, as amended from time to
time in accordance with the provisions of the Deed, are incorporated by reference
into this Customer Contract as if they are set out in this Customer Contract.
3.2
The Contractor must notify the Customer of any amendments that may be made from
time to time to Schedule B and Schedule E of the Deed.
4.
Request for Quotation and Ordering Process
4.1
Request for Quotations
4.1.1
A Customer may submit an RFQ with further information and specifications of
their requirements and/or required accessories, spare parts, maintenance and
training services.
4.1.2
Where the Contractor wishes to submit a quotation, the Contractor must respond
to a Customer RFQ in writing within the period set out in the Customer‟s RFQ or
as otherwise agreed with the relevant Customer.
4.1.3
If the Contractor is unable to meet any of the requirements of a specific RFQ, this
should clearly be noted in the Contractor‟s RFQ response.
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NPN1.11 Part J Preferred Supplier Deed.doc
4.2
4.1.4
Any free services which the Contractor nominates to supply, additional to those
specified and which the Contractor accepts, shall be carried out in accordance
with the details supplied by the Contractor at a time and place approved by the
Customer.
4.1.5
A Customer may seek clarifications following receipt of a Contractor‟s RFQ
response.
4.1.6
Customers are not bound to accept a RFQ response received from the Contractor
or any other supplier on the Preferred Supplier Arrangement even where such
RFQ is the lowest in price.
4.1.7
If the Contractor‟s RFQ response is selected following the RFQ process, the
Customer shall accept the Contractor‟s offer by issuing an Order pursuant to
clause 4.2 below.
Orders
4.2.1
Each Order placed by a Customer with the Contractor shall incorporate (and any
inconsistency or ambiguity shall be resolved in the following order of precedence
- listed in order of descending importance):
4.2.1.1
4.2.1.2
4.2.1.3
4.2.1.4
4.2.1.5
4.2.2
the
the
the
the
the
Customer Contract;
requirements of the Order;
requirements of the relevant RFQ;
Contractor‟s RFQ response; and
Specification.
Where the Contractor receives an Order from a person other than a notified
Authorised Officer or which does not list the Principal‟s relevant Contract Number,
the Contractor must:
4.2.2.1
4.2.2.2
not supply the Deliverables identified in the Order; and
refer the Order to the relevant Authorised Officer.
4.2.3
A Contractor must not supply other categories of goods and/or services other
than those tendered and appointed for under the Deed without the prior written
approval of the Principal.
4.2.4
Subject to clauses 4.2.5, 4.2.6 and 4.2.7, a Customer may include special
conditions in any Order which add to the Customer Contract. These special
conditions will only be valid should both the Customer and Contractor agree to
them. For the avoidance of doubt, the Contractor shall be deemed to have agreed
to such special conditions where the special conditions are clearly set out in an
RFQ issued by the Customer and the Contractor commences provision of the
Deliverables pursuant to a resulting Order.
4.2.5
Where the special conditions are likely to constitute a material change to the
Customer Contract (determined by the parties acting reasonably and in good
faith), the parties must seek the approval of the Principal prior to the Order being
issued. Until such time as the Principal has approved the use of the special
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conditions, any resulting Order shall not constitute a valid exception to the
Customer‟s mandated tendering processes.
4.2.6
If on review of the special conditions the Principal finds that the special conditions
of an Order substantially conflict with the terms and conditions of the Deed or the
Customer Contract, the Principal shall consult the Customer and Contractor to
resolve the matter.
4.2.7
If the matter cannot be resolved as set out above, the Principal may deem the
relevant Order as being non-compliant with the terms of the Deed and as such
not constituting a valid exception to the Customer‟s mandated tendering
processes.
4.2.8
For the avoidance of doubt, the Principal may request a copy of an Order, RFQ or
quotation (or associated information) from either party at any time and the party
to whom the request is directed shall provide the Principal with such
documentation or information within 7 days of the request (or such other time
period as may be agreed between the Principal and the relevant party).
5.
5.1
Price
In circumstances where a Customer does not undertake an RFQ process before
issuing an Order, all Deliverables are to be supplied at the Prices as specified in the
Price Schedule (which may be amended in accordance with the Deed from time to
time). All prices stated in the Order are firm, and are not subject to any escalation.
6.
Supply of Deliverables
6.1
The Contractor must supply the Deliverables to a Customer in the manner, and at the
time, specified in the Order. The Deliverables must:
6.1.1 be fit for the purpose for which the Deliverables are intended to be used by a
Customer,
6.1.2 comply with the requirements of the Order and Specification;
6.1.3 be of merchantable quality,
6.1.4 conform with samples provided to a Customer (if any), and
6.1.5 carry any applicable manufacturer‟s warranties, which must be passed to a
Customer on the supply of the Deliverables.
6.2
Upon it becoming evident to the Contractor that the supply of the Deliverables is
likely to be delayed, the Contractor must promptly notify the Customer in writing.
Such notification shall not release the Contractor from its obligation to supply the
Deliverables by the time specified in the Order (subject to the delay being caused by
a force majeure event).
6.3
The Contractor shall not be entitled to any increase in the Contract Price or damages,
costs or expenses in connection with any delay unless the delay has been caused, or
contributed to, by the Customer.
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6.4
Unless otherwise provided in the Order or Specification, the Contractor must pay all
packaging, freight, insurance, and other charges whatsoever, in connection with the
delivery of Deliverables and the return of any Deliverables wrongly supplied and all
packaging.
6.5
Where it is a requirement of the Order or Specification that Deliverables must be
installed or commissioned, the Customer shall not be deemed to have accepted the
Deliverables unless the Deliverables are satisfactorily installed or commissioned within
the period stipulated in the Order or Specification or, if no period is stipulated, within
a reasonable period.
6.6
The Customer may conduct any examination or testing of the Deliverables. If the
testing shows that the Deliverables do not comply with the Order or Specification or
are otherwise defective, the cost of the testing shall be a debt due and payable by
the Contractor to the Customer.
6.7
All materials of construction shall be new and all components standardised so that
replacements can be installed without structural alteration.
6.8
Unless the Order or Specification states otherwise, all Deliverables supplied must be
in accordance with Australian Standards where such exist. Where an Australian
Standard does not exist the relevant ISO Standard shall apply.
6.9
Any repairs or replacement Deliverables provided by the Contractor under warranty
will be subject to at least the same warranty as the original Deliverables, from the
date of repair or replacement.
6.10
Requests for repair under warranty are to be handled by the Contractor so that there
is only one point of contact required by Customer to arrange warranty repairs.
6.11
The Contractor must, when attending any premises or facilities of the Customer,
comply with all reasonable directions and procedures as notified by the Customer,
including those relating to security and occupational health and safety.
6.12
Title in the Deliverables, free of encumbrances, passes to a Customer upon
acceptance of the Deliverables by the Customer or upon payment (whichever is the
earlier).
6.13
Risk in the Deliverables prior to acceptance by the Customer shall remain with the
Contractor except where the damage, deterioration, theft or loss results from a
negligent act or omission of the Customer or any agent or employee of the Customer.
7.
Conflict of Interest
7.1
The Contractor warrants that, to the best of its knowledge, no conflict of interest of
the Contractor, its employees, agents or subcontractors exists or is likely to arise in
the performance of its obligations under this Customer Contract.
7.2
The Contractor must:
7.2.1 notify in writing, and consult with, the Customer immediately upon becoming
aware of the existence or possibility of a conflict of interest; and
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7.2.2 comply with any direction given by the Customer in relation to those
circumstances designed to manage that conflict of interest.
7.3
For the purposes of this clause, "conflict of interest" includes engaging in any activity,
or obtaining any interest, likely to conflict with the performance by the Contractor of,
or to restrict the Contractor in performing, its obligations under the Customer
Contract.
7.4
The Customer may terminate the Customer Contract if in its view a conflict of interest
exists which prevents the proper performance of the Customer Contract
8.
Packaging
8.1
Unless otherwise agreed in writing by a Customer, the Contractor must pack the
Deliverables in a manner which is sufficiently robust and adequate, to protect the
Deliverables from damage or deterioration during transit and delivery to a Customer.
8.2
The Contractor must comply with a Customer‟s reasonable directions concerning the
packing of the Deliverables (including the removal of any packaging).
9.
Warranties
9.1
The Contractor warrants to a Customer that:
9.1.1 the Deliverables will be provided by the Contractor with due care and skill and
will be free of defects in materials and workmanship;
9.1.2 the Deliverables will be provided with a warranty on any materials, parts or
labour of a minimum 12 months;
9.1.3 to the extent specified in the Order, an attachment or other formal
communication, the Contractor is aware of the requirements of a Customer,
concerning the nature and quality of the Deliverables, the purpose for which
the Deliverables are required or the result that a Customer desires the
Deliverables to achieve, and that a Customer is relying upon the Contractor‟s
skill and judgement in provision of the Deliverables, and
9.1.4 the implied conditions and warranties set out in the Competition and Consumer
Act 2010 (Cth) or equivalent legislation are incorporated into this Customer
Contract as if a Customer were a consumer under that Act or equivalent
legislation.
10.
Indemnities
10.1
The Contractor is liable for and indemnifies and must keep indemnified, the Customer
and its officers, employees and agents against any claim, loss or expense (including a
claim, loss or expense arising out of personal injury, death or damage to property)
which any of them suffers, incurs or is liable for (including reasonable legal costs on a
solicitor and client basis) (together the Loss) as a result of:
10.1.1 the defective or negligent supply or non-supply of any Deliverables;
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10.1.2 any unlawful, negligent, reckless or deliberately wrongful act or omission of the
Contractor (or its employees, agents or subcontractors or their employees) in
the performance of the Customer Contract; or
10.1.3 any breach by the Contractor of the Customer Contract or the Deed.
10.2
The Contractor's liability in respect of the indemnity given under this clause shall be
reduced proportionately to the extent that any breach of the Customer Contract by
the Customer, its officers, employees or agents caused or contributed to the Loss.
10.3
Despite clause 10.1.1 and 10.1.2, the Contractor will not be liable for any special,
indirect, incidental or consequential damage arising out of or in connection with this
Customer Contract.
11.
Variation of Order
11.1
A Customer is entitled to cancel an Order at any time before the Deliverables are
delivered. If this occurs, the Contractor must take all necessary steps to mitigate any
losses which it may suffer as a result of the cancellation.
Note: This provision does not apply if a Customer cancels this Customer Contract because of
the Contractor‟s default. Please read „Cancellation of Contract‟ below.
11.2
A Customer is entitled to vary the quantity or the scope of Deliverables under an
Order. The Contractor must not vary the item price or hourly rates of the
Deliverables if the variation of quantity is 10% or less from the original Order.
12.
Rejection of Deliverables
12.1
A Customer may reject any of the Deliverables which do not comply in all respects
with this Customer Contract. The Contractor will be given reasonable opportunity to
rectify the rejected Deliverables.
12.2
Where reasonable opportunity has been provided to rectify the Deliverables, but they
remain in an unacceptable condition, the Customer may reject an entire order of
Deliverables even if only a portion of those Deliverables do not comply in all respects
with this Customer Contract.
12.3
A Customer is not required to make payment for any rejected Deliverable until
rectified. The Contractor must pay a Customer for all reasonable direct costs incurred
by a Customer in removing or returning the rejected Deliverables.
13.
Inspection of Deliverables
A Customer is entitled to inspect the Deliverables as they are used. A Customer is not
required to inspect or to reject the Deliverables within any specified time period.
14.
Payments
14.1
Subject to the Customer‟s confirmation that:
14.1.1 the Deliverables supplied by the Contractor comply with the relevant Order and
the Specification; and
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14.1.2 the Deliverables supplied by the Contractor are complete; and
14.1.3 the Contractor‟s invoice is in accordance with the Contract,
the Customer must pay the amount due to the Contractor within 30 days of receipt of
a correctly rendered invoice (or such other period as may be mutually agreed in
writing between the parties) or, if additional information is required by the Customer,
within 30 days (or such other period as may be mutually agreed in writing between
the parties) after receipt of the additional information.
14.2
Upon receipt of an invoice, the Customer may require the Contractor to provide
additional information to assist the Customer to determine whether or not an amount
is payable.
14.3
A correctly rendered invoice must:
14.3.1 identify the Deliverables the subject of the invoice; and
14.3.2 specify the title of the Contract; and
14.3.3 specify the Contract number allocated to the Contract by the Principal as well as
any other number the Customer may specify in writing to the Contractor for the
purposes of the Customer Contract)(if any); and
14.3.4 where Deliverables are charged on a time basis, be supported by records of
time spent by individual persons on the Services, verified by the Customer; and
14.3.5 specify details of the Order; and
14.3.6 specify details of the Contract Price requested by the Customer; and
14.3.7 provide sufficient detail to enable the Customer to assess progress against
targets (if any) set out in the Order; and
14.3.8 specify the Australian Business Number of the Contractor; and
14.3.9 specify the address for payment of the Contractor; and
14.3.10
specify the date of supply of the Deliverables identified in the invoice; and
14.3.11
specify the Contractor‟s invoice number and invoice date; and
14.3.12
specify the Contract Price payable by the Customer and particulars of any
GST payable in respect of the Contract Price; and
14.3.13
otherwise comply with the requirements of a tax invoice for the purposes
of the GST Act.
14.4
If the Customer pays an invoiced amount to the Contractor, and it is subsequently
found not to have been a correctly rendered invoice, the Customer may deduct any
overpaid amount owed to the Customer from the next invoiced payment or, if no
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other payment is due to the Contractor pursuant to the Contract, recover the amount
from the Contractor as a debt due and payable to the Customer.
14.5
Payment of money to the Contractor does not constitute an admission by the
Customer that Deliverables have been supplied in accordance with the Contract.
14.6
Upon payment for the Deliverables, property in that part of the delivery comprising
the Deliverables shall pass to the Customer.
14.7
Payment shall include credit by way of set off.
14.8
Failure by the Customer to pay the amount payable by the due time will not be
grounds to invalidate or avoid the Customer Contract.
14.9
The Contractor shall not be entitled to any interest or charge for extending credit or
allowing time for the payment of the Contract Price unless otherwise provided in the
Order.
14.10 The Customer may deduct from moneys due to the Contractor under the Contract or
on any other account, any moneys due from the Contractor to the Customer, and if
those moneys are insufficient, the Customer may have recourse to any security held
by the Customer under the Contract. Nothing in this Clause shall affect the right of
the Customer to recover from the Contractor any moneys due from the Contractor to
the Customer or any balance that remains owing after the deduction of moneys due
from the Contractor to the Customer.
14.11 If the Contractor complies with its obligations under this Customer Contract, a
Customer must make the payments duly invoiced to a Customer by a Contractor in
relation to the provision of the Deliverables at Prices in accordance with the Price
Schedule.
14.12 Unless otherwise agreed in writing, a Customer must make such payment by the end
of the month following the month of invoice.
15.
Termination
15.1
A Customer may terminate this Customer Contract and related Order:
15.1.1 if the Deliverables or any part of the Deliverables are not delivered or provided
within the time specified in the Order, or
15.1.2 if the Contractor does not comply with a material term of this Customer
Contract and, the breach is not remedial, or
15.1.3 if the Contractor does not comply with a material term of this Customer
Contract and, where the breach is remedial, does not remedy it within 30 days
of receiving notice to do so from the Customer or
15.1.4 if the Contractor becomes or is likely to become Insolvent, ceases to trade,
enters into any form of financial administration; or
15.1.5 the Order does not constitute a valid exception to the Customer‟s mandated
tendering processes
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15.1.6 at convenience, provided the Customer agrees to pay all outstanding money for
work satisfactorily completed as well as the Contractor‟s direct costs and other
reasonable costs associated with the Customer not fulfilling its contractual
promise.
15.2
On termination under clauses 15.1.2 or 15.1.3, a Customer:
15.2.1 may refuse to accept any undelivered Deliverables,
15.2.2 may reject any delivered Deliverables,
15.2.3 is not required to make any payment to the Contractor other than for services
that comply with the Customer Contract,
15.2.4 may recover from the Contractor all direct costs incurred by a Customer in
obtaining other goods or services, in replacement of the Deliverables, and
15.2.5 may recover from the Contractor, any other direct losses incurred by a
Customer as a result of the Contractor‟s breach of the Customer Contract or the
Deed.
16.
Sub-Contracting and Assignment
16.1
The Contractor may subcontract part or all of the performance of any of the
Deliverables under a Customer Contract to a subcontractor approved in writing by the
Principal from time to time or identified in Schedule A of the Deed. The Contractor
will continue to be bound by, and responsible for, the performance of the Customer
Contract and will remain responsible for the acts and omissions of any sub-contractor
as if such acts and omissions were those of the Contractor itself, notwithstanding
that part or all of it may have been subcontracted.
16.2
The Contractor must not, without a Customer‟s prior written permission, sub-contract
or assign any part of its rights and obligations under this Customer Contract. A
Customer is not required to make any payment to any sub-contractor or assignee of
the Contractor.
17.
Confidentiality
17.1
The parties must not disclose to any person, any Confidential Information concerning
this Customer Contract and the Order, and any other information acquired by the one
party in its dealings with the other party, unless where:
17.1.1 such information is in the public domain, other than through disclosure by the
Contractor,
17.1.2 is approved in writing by the other party; or
17.1.3 such disclosure is required by law.
17.2
Both parties acknowledge that all information provided by either party to the other
party under this Customer Contract remain the property of the providing party.
18.
Statutory Requirements
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18.1
The Contractor must obey, and must ensure that its employees, sub-contractors and
agents obey, all laws, regulations and any codes of conduct which apply to the
Contractor‟s performance of this Customer Contract. This includes, without limitation,
laws relating to occupational health and safety.
19.
Dispute Resolution
19.1
Disputes in relation to this Customer Contract must be resolved in accordance with
this clause 19.
19.2
Either party may, in a case of genuine urgency, seek immediate interlocutory relief or
an interim remedy.
19.3
Other than in respect of clause 19.2, any dispute must be resolved as follows:
19.3.1 each party must submit the dispute to one of its senior officers who has not
previously been involved in the dispute (“Negotiators”) within 3 days of the
dispute arising;
19.3.2 the Negotiators must meet as soon as practicable to resolve the dispute;
19.3.3 if the Negotiators cannot resolve the dispute within 14 days of its reference to
them (or such other period as may be agreed), each Negotiator must prepare a
written summary of his or her attempts to resolve the dispute and refer that
summary to the Principal; and
19.3.4 if the Principal cannot resolve the dispute within 14 days of its reference to it
(or such other period as may be agreed between the parties), either party may
submit the dispute to arbitration in accordance with, and subject to, The
Institute of Arbitrators & Mediators Australia Arbitration Rules. The arbitrator‟s
decision shall be final and the arbitrator‟s costs shall be borne by the losing
party unless otherwise determined by the arbitrator.
19.4
Notwithstanding the existence of a dispute each party must continue to perform its
obligations under this Deed.
20.
General
20.1 Amendment
This Customer Contract may only be varied or replaced by a document duly executed by
the parties.
20.2 Further Assurance
Each party must promptly execute and deliver all documents and take all other action
necessary or desirable to effect, perfect or complete the transactions contemplated by
the Customer Contract.
20.3 GST
20.3.1 In this clause words that are defined in the GST Act have the same meaning as
their definition in the GST Act.
20.3.2 Except as otherwise provided by this clause, all consideration payable under this
Deed in relation to any supply is exclusive of GST.
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20.3.3 If GST is payable in respect of any supply made by a supplier under a Customer
Contract, subject to clause 20.5.4 the recipient will pay to the supplier an amount
equal to the GST payable on the supply at the same time and in the same
manner as the consideration for the supply is to be provided under the Customer
Contract.
20.3.4 The supplier must provide a tax invoice to the recipient before the supplier will be
entitled to payment of the GST payable under clause 20.5.3.
20.4 Waiver and Exercise of Rights
20.4.1 A single or partial exercise or waiver of a right relating to the Customer Contract
does not prevent any other exercise of that right or the exercise of any other
right.
20.4.2 No party will be liable for any loss or expenses incurred by another party caused
or contributed to by the waiver, exercise, attempted exercise, failure to exercise
or delay in the exercise of a right.
20.5 Survival of Indemnities
Each indemnity in the Customer Contract is a continuing obligation, separate and
independent from the other obligations of the parties and survives termination of this Deed.
20.6 Enforcement of Indemnities
It is not necessary for a party to incur expense or make payment before enforcing a right of
indemnity conferred by this Deed.
20.7 No Merger
The warranties, undertakings, deeds and continuing obligations in this Customer Contract do
not merge on completion.
20.8 Governing Law and Jurisdiction
The Customer Contact is governed by and is to be construed in accordance with the laws of
[New South Wales/Queensland/South Australia – delete as appropriate]. Each party
irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of
[New South Wales/Queensland/South Australia – delete as appropriate] and waives any right
to object to proceedings being brought in those courts.
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Schedule E
Deliverables Specification
The Specification from the RFT will be inserted here.
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Schedule F
Special Conditions
Any Special Conditions relevant to a particular State to be inserted here.
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Schedule G
Reporting Requirements
The relevant State(s) reporting requirements to be inserted here.
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