Mail Contractor Agreement
MAILCONTRACTOR AGREEMENT
MAIL SERVICE NUMBER:
MAIL SERVICE NAME:
ABN 28 864 970 579
THIS MAIL CONTRACTOR AGREEMENT is made up in various parts as defined in Clause 1 of this Agreement.
Contractor’s Declaration – please read before signing this Mail Contractor
Agreement
By signing this Mail Contractor Agreement (“Agreement”), the Contractor acknowledges that:
 It has read and understood the Agreement.
 The Agreement does not confer upon it any right to sell the Agreement or sell a sub-contract of the
Agreement.
 When preparing its Tender submission and calculating the Contract Fee it has considered and made
allowance for all expenses relating to the performance of the Services and the requirements of the
Agreement, including appropriate payment of Personnel with respect to any relevant legislation
 It is required to develop and implement a WHS Management Plan that demonstrates compliance with
its work health and safety duties under applicable legislation and satisfies Australia Post’s safety
standards.
 Australia Post has advised the Contractor to seek its own independent legal and financial advice in
preparing its Tender and entering into this Agreement.
Executed by the parties as an Agreement on Date (Execution date) in the State of State.
(Contractor to sign here if the contractor is a company):
Company name ACN 123 456 789 (“Contractor”)
Executed in accordance with section 127 of the Corporations Act 2001 (Cth):
………………………………………………………………….
Signature of director
………………………………………………………………
Signature of director/company secretary
(Delete as applicable)
………………………………………………………………….
Name of director (print)
………………………………………………………………
Name of director/ company secretary (print)
(Contractor to sign here if the contractor is NOT a company):
Contractor name ABN 12 345 678 910 (“Contractor”)
In the presence of:
Executed by:
………………………………………………………………….
Signature of contractor
………………………………………………………………
Signature of witness
………………………………………………………………
Name of witness (print)
AUSTRALIAN POSTAL CORPORATION
ABN 28 864 970 579 (“Australia Post”)
Executed by:
In the presence of:
………………………………………………………………….
Signature of Australia Post delegate
………………………………………………………………
Signature of witness
………………………………………………………………….
Name of Australia Post delegate (print)
……………………………………………………………
Name of witness (print)
Page | i
Mail Contractor Agreement
REFERENCE TABLE
Item 1:
Trust:
Item 2:
Contractor Name:
ACN:
Contractor Address:
Item 3:
Contractor
Representative:
Address:
Not Applicable
or
The Contractor enters into this Agreement as trustee of the following trust:
Trust Name:
Trust ABN:
Telephone (work):
Telephone (home):
Mobile:
Fax:
Email:
Item 4:
Nature of Services:
Item 5:
Delivery Area:
Item 6:
Contract Fee:
Parcel Delivery
Roadside Mail Delivery
Street Mail Delivery
Street Post Box Clearance
Depot Bag Delivery
Transport (Interstate/Intrastate)
Miscellaneous Services
For a per annum rate contract, the Contract Fee is:
The Contract Fee will be paid monthly in 12 equal instalments. Each
instalment will be paid no later than the last day of the month to which the
payment relates, however Australia Post may elect to pay the monthly
Contract Fee at an earlier date.
For a per unit rate contract, the Contract Fee is:
Ordinary/Express Post:
$ per Recorded Article
Signature Items:
$ per Recorded Article
Call for Returns:
$ per Recorded Article
eParcel Consignments:
$ per Recorded Article
eParcel Additional Parcels: $ per Recorded Article
<insert unit rate category> $ per
<insert unit rate category> $ per
<insert unit rate category> $ per
<insert unit rate category> $ per
<insert unit rate category> $ per
The Contract Fee will be paid monthly for the agreed recorded quantity of
each unit rate category for period to which the payment relates. The
payment will be made in arrears within seven (7) days of the end of the
period to which the payment relates, however Australia Post may elect to
pay the monthly Contract Fee at an earlier date.
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Mail Contractor Agreement
REFERENCE TABLE
For contracts other than per annum or per unit contracts, the Contract Fee is
calculated on the following basis:
The Contract Fee will be paid monthly in arrears within seven (7) days of the
end of the period to which the payment relates, however Australia Post may
elect to pay the monthly Contract Fee at an earlier date.
Item 7:
Commencement
date:
Item 8:
Initial Term:
years
Item 9:
Further Period:
years
Item
10:
Maximum Number
of Further Periods:
Item
11:
Australia Post
Manager:
Operations Address:
Item
12:
Security:
Item
13:
Equipment:
(eg, scanners,
sorting equipment,
keys)
Item
14:
Equipment Rental
Fee:
$ per month per Scanner (inclusive of GST)
$ per month per Sorting Frame (inclusive of GST)
Item
15:
Marine Cargo
Insurance:
$ per load
Item
16:
General Property
Insurance:
$ per item/unit Scanner
$ per item/unit Sorting Frame
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A guarantee and indemnity in a form approved by Australia Post from each
of the Contractor’s directors.
Mail Contractor Agreement
REFERENCE TABLE
Item
17:
Tools of Trade:
(e.g. Motor vehicle/s, mobile telephone, CB radio, satellite phones, pallet jacks etc. Specify any item
the contractor brings to the contract that has been costed in part E of the tender document. Refer
to below table as an example)
Type of tool
e.g Station
Wagon
e.g. Mobile phone
e.g. Truck
Make
Model
Colour
Registration
(if applicable)
Holden
2008
White
CMD001
Nokia
Isuzu
3000
2009
N/A
White
N/A
CMD002
(Specify tools of trade in the below table. Attach sheet/s for additional information):
Type of tool
Make
Model
Colour
Registration
(if applicable)
(or as otherwise approved in writing by Australia Post)
[The rest of this page is left intentionally blank; next page is “General Conditions of Contract” page 1
Page | iv
Mail Contractor Agreement
GENERAL CONDITIONS OF CONTRACT
Table of Contents
Page
1
Definitions and interpretation ..................................................................................................................1
2
Services ...........................................................................................................................................................4
3
Term of Agreement......................................................................................................................................4
4
Status of Contractor ...................................................................................................................................5
5
Contractor a Trustee...................................................................................................................................5
6
Payment of Contract Fee ..........................................................................................................................6
7
Records Information and Reporting .......................................................................................................6
8
Contact Fee Adjustment – Australia Post Initiatives.........................................................................6
9
Variations .......................................................................................................................................................6
10 Contract Fee Adjustment – Input Costs ................................................................................................7
11 Contractor's Warranties.............................................................................................................................9
12 Assignment ....................................................................................................................................................9
13 Subcontracting .............................................................................................................................................9
14 Security ........................................................................................................................................................ 10
15 Intellectual Property................................................................................................................................. 10
16 Goodwill ........................................................................................................................................................ 10
17 Personnel ..................................................................................................................................................... 10
18 No Rights Over Articles ............................................................................................................................ 11
19 Supply of Contract Materials by Australia Post .............................................................................. 12
20 Equipment and Tools of Trade .............................................................................................................. 12
21 Security Checks ......................................................................................................................................... 12
22 Australia Post Reputation ...................................................................................................................... 13
23 Contractor’s Insurances .......................................................................................................................... 13
24 Contractor’s Liability and Indemnities ................................................................................................ 14
25 Audit and Searches .................................................................................................................................. 15
26 Co-operation With Other Contractors ................................................................................................. 16
27 Confidential Information ......................................................................................................................... 16
28 Work Health and Safety and Environment Management ............................................................ 17
29 Cooperation on Transition ...................................................................................................................... 18
30 Termination ................................................................................................................................................. 18
31 Dispute Resolution .................................................................................................................................... 19
32 Force Majeure ............................................................................................................................................ 20
Mail Contractor Agreement
33 Goods and Services Tax (“GST”)............................................................................................................ 21
33A Australian Business Number “ABN” ..................................................................................................... 22
34 Conflict of Interest..................................................................................................................................... 22
35 Restraint ...................................................................................................................................................... 23
36 Australia Post Identification .................................................................................................................. 23
37 Privacy of Personal Information ........................................................................................................... 24
38 Set Offs ......................................................................................................................................................... 24
39 Costs and Expenses ................................................................................................................................. 25
40 Severance .................................................................................................................................................... 25
41 Time of the Essence ................................................................................................................................. 25
42 Entire Agreement ...................................................................................................................................... 25
43 Variation and Waiver ............................................................................................................................... 25
44 Survival of Obligations ............................................................................................................................. 25
45 Notices.......................................................................................................................................................... 25
46 Governing Law ........................................................................................................................................... 25
47 No Merger .................................................................................................................................................... 26
48 Access to Documents............................................................................................................................... 26
49 Schedule of General Specifications ............................................................................................. 27
Mail Contractor Agreement
1
Definitions and interpretation
1.1
Definitions
matter or thing arising from it, but excludes material
or information which:
In this Agreement, unless the context otherwise
indicates or requires:
Act means the Australian Postal Corporation Act
1989 (Commonwealth).
Agreement means this Mail Contractor Agreement
comprising these General Conditions of Contract and
the annexed Face Page, Reference Table and
Schedule and any attachments, together with the
General Information for Tenderers, Mail Service
Specifications and the Tender Form contained in the
tender documentation provided to the Contractor by
Australia Post prior to entry into this Agreement.
APT&C means the Australia Post Terms and
Conditions relating to services supplied to a Person
by Australia Post as from time to time determined
under section 32 of the Act and published on the
Australia Post website: auspost.com.au.
Article means every article within the meaning in the
Act intended to be carried by the Contractor under
this Agreement.
Australia Post Initiative means an initiative of
Australia Post to increase the market or market
share for Services, or any part thereof, and/or to
improve efficiencies and/or to reduce costs in the
performance of Services, whether by the introduction
of new technology or otherwise.
Australia Post Manager means the Person identified
in Item 11 of the Reference Table or such other
Person notified by Australia Post to the Contractor,
being the Person who has authority to act on behalf
of Australia Post in respect of this Agreement.
Australia Post Privacy Policy means the policy and
procedures from time to time adopted by Australia
Post relating to personal information of Persons
contracting with it and published as “Privacy
Statement” on the Australia Post website:
auspost.com.au.
Australia Post
Equipment.
Property includes
Articles
and
Authority means any Federal, State, or local
Government, semi-Government, quasi-Government or
other body or authority, statutory or otherwise,
including any court or tribunal.
Business Day means any day not being a Saturday,
Sunday or public holiday in the State in which the
majority of the Services are to be performed.
Commencement Date means the date specified in
Item 7 of the Reference Table.
Confidential Information means those Contract
Materials which are marked as, otherwise identified,
known or which ought reasonably to be known to be
confidential and includes Confidential Postal
Information and Documents, Customer Lists, trade
secrets and know-how and this Agreement and any
Page | 1
(a) is at the time of disclosure, or subsequently
becomes, material or information in the
public domain otherwise than by a breach
by the Contractor of this Agreement; or
(b) is or was rightfully acquired without any
obligations of confidence by the Contractor
from a source other than Australia Post and
without a breach of confidence by any
source of the information, prior to the
receipt of the information by the
Contractor.
Confidential Postal Information and Documents
means any information or documents falling within
section 90G(1) of the Act and includes Personal
Information, address lists, names of addressees and
round or route information whether or not created by
the Contractor.
Contract Fee means the fees set out in Item 6 of the
Reference Table payable to the Contractor in
consideration of performance of the Services.
Contract Materials means all Data, whether
comprising Confidential Information or not, produced
by or provided to the Contractor or its Personnel
pursuant to this Agreement or forming part of the
tender documentation provided to the Contractor by
Australia Post prior to entry into this Agreement.
Contractor means the Person so named in this
Agreement (who represents it is located at the
address described in Item 2 of the Reference Table)
and includes, where the context permits, its
Personnel.
Contractor’s Representative means the natural
Person specified in Item 3 of the Reference Table or
such other natural Person nominated in writing by
the Contractor to Australia Post, provided that
natural Person is one of the Contractor’s Personnel.
Corporation means any company, corporation or
other body corporate constituted under the
Corporations Act 2001 (Commonwealth).
Customer means any addressee or other intended
recipient of an Article or any Person who provides
Australia Post with one or more Articles for carriage.
Customer List means any list of Customers.
Data means all information recorded in any media,
and includes accounting records and Customer Lists.
Delivery Area means the area specified in Item 5 of
the Reference Table and includes the area indicated
on any map annexed and such adjacent areas in
which Australia Post may from time to time request
Articles be delivered whether to accord with any
responsibility for delivery from the office or other
place from which the Contractor collects Articles for
delivery or otherwise.
Delivery Point means each location where Articles
are to be delivered pursuant to this Agreement.
AUSTRALIA POST
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
Dispute means a dispute in connection with or
arising in any way out of this Agreement.
(b) is otherwise unable to pay its debts as and
when they become due and payable;
Employee Benefits means remuneration, annual
leave, sick leave, long service leave, redundancy
payments, extra payments for overtime or public
holidays and any other similar benefits, payable to,
or in respect, of the Contractor and its Personnel.
(c) being a natural Person, commits or suffers
an act of bankruptcy; or
Employer Obligations means accident or workers'
compensation payments and premiums, payroll tax,
pay as you go tax and related income tax
deductions, superannuation contributions or other
similar payments or contributions payable to or in
respect of, the Contractor and its Personnel.
Intellectual Property includes all proprietary rights
(registered or unregistered) including any intellectual
or industrial property rights, whether now existing or
coming into existence in the future, related in any
way to this Agreement, including but not limited to
inventions, patents, business processes, software
programs, copyright, trademarks, registered designs
and Confidential Information and Contract Materials.
Equipment means the equipment specified in Item
13 of the Reference Table and such other equipment
as may be supplied (whether for fee or not) by
Australia Post under this Agreement.
Face Page means the first (cover) page of the
document constituting this Agreement.
Force Majeure has the meaning set out in clause 32.
Further Period means the period (if any) referred to
in Item 9 of the Reference Table.
Goodwill means all rights title and interest attached
to the delivery of Articles and/or the Services and
includes the relationship with Customers and any
Customer Lists.
GST and “GST Law” have the same meaning as in A
New Tax System (Goods and Services Tax) Act 1999
(Commonwealth).
Improvement Notice means a written notice setting
out the nature of breach of the Agreement including
relevant clauses breached, the steps required to
remedy the breach and the period within which to
remedy the breach.
Initial Term means the period described in Item 8 of
the Reference Table.
Insolvency Event means, in relation to a Person,
when the Person:
(a) is:
(i)
insolvent for the purposes of Section
95A of the Corporations Act 2001
(Commonwealth); or
(ii) the subject of an event described in
Sections 459C(2) (a) to (f) or Section 585
of
the
Corporations
Act
2001
(Commonwealth) (or it makes a
statement from which another party to
this agreement may reasonably deduce
it is so subject); or
(iii) an insolvent under administration or
suffers the appointment of a controller,
administrator, liquidator or provisional
(iv) liquidator as those terms are defined in
Section 9 of the Corporations Act 2001
(Commonwealth); or
(v) dissolved or deregistered;
Page | 2
(d) takes or suffers a similar consequence in
debt to those in paragraphs (a) to (c) under
the law of any jurisdiction.
KPIs means Key Performance Indicators specified in
clause S1 of the Schedule, being one of the means
(among others) of assessing the Contractor’s
compliance with the Performance Requirements.
WH&S Management Plan means the Work Health
and Safety management procedures and methods
to be implemented in accordance with a predetermined plan and regularly self-audited by the
Contractor in performing the Services to ensure such
performance complies with all Relevant Law,
Relevant Standards and the requirements of all
Authorities and Australia Post.
Operations Address means the address specified in
Item 11 of the Reference Table.
Our Ethics means the policy and procedures from
time to time adopted and published by Australia
Post relating to the conduct of its staff and
contractors or, if none are published at any time, Our
Ethics booklet from time to time published on the
Australia Post website: auspost.com.au.
Parcel Delivery means delivery of Articles, other
than letter mail, carried by and delivered to Delivery
Points by the Contractor under this Agreement.
Payment Period means for
a) an annual rate service a calendar month, and
b) a unit rate service a period which Australia
Post will advise the Contractor from time to
time, typically consisting of four to five weeks
which may contain parts of two consecutive
calendar months.
Performance Requirements means all of Australia
Post’s requirements from time to time in respect of
performance of the Services, comprising the
minimum performance standards required to be
achieved under this Agreement including the
Specifications, as varied or added to from time to
time whether in the form of directions, lists, or
otherwise.
Person means a legal person and includes a trust, a
body politic or corporate as well as an individual.
Personal Information has the same meaning as in
Section 6 of the Privacy Act 1988 (Commonwealth).
AUSTRALIA POST
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
Personnel means every natural Person (whether
Contractor, Subcontractor, or working director,
employee or agent of either) who performs or intends
to perform the Services and includes where the
context permits any Contractor or Subcontractor
which is a Corporation.
Privacy Act means the Privacy Act 1988 (Cth).
Privacy Laws means all relevant Commonwealth,
State and Territory legislation, principles, industry
codes and policies relating to the collection, use,
disclosure, storage or granting of access rights to
the Personal Information including, but not limited to:
(i)
the Privacy Act (including the
Information Privacy Principles
and the National Privacy
Principles);
(ii)
the Australian Direct Marketing
Association Code of Practice ;
(iii)
Part 7B of the Australian Postal
Corporation Act 1989 (Cth);
(iv)
The Spam Act 2003 (Cth)
Reference Table, means the table set out on page
(ii) of this Agreement.
Relevant Law means any statute, rule, regulation,
proclamation, ordinance or by-law, whether Federal,
State, local or otherwise and includes any award,
certified agreement or industrial instrument given
legal effect under Federal or State legislation.
Supplier Code of Conduct means the statement as
set out in S.13 of the Schedule of General
Specifications comprising part of this Agreement.
Subcontractor means any Person, not being an
employee, engaged by the Contractor for the
purpose of providing or assisting in the performance
of any part of the Contractor’s obligations under this
Agreement.
Tender means all information supplied to Australia
Post by the Contractor prior to the Commencement
Date in respect of and in contemplation of entry into
this Agreement and performance of the Services.
Term means the period of currency of this
Agreement and includes (unless the Agreement is
terminated earlier) the Initial Term and any Further
Period.
Tools of Trade means all materials, parts, labour,
Vehicles or other means of transport, tools,
instruments and other equipment necessary and
suitable for the performance of the Services including
but not limited to those items set out in Item 17 of
the Reference Table and clause S5 of the Schedule.
Vehicle means any vehicle or other conveyance used
or proposed to be used by the Contractor in the
performance of Services.
1.2
Interpretation
(a) Unless the context otherwise requires, a
word which denotes:
(i)
Relevant Standards means any international or
Australian standards applicable or relevant to the
Services, including but not limited to any such
standards notified from time to time by Australia
Post to the Contractor.
Schedule means the Schedule of General
Specifications comprising part of this Agreement.
Security means any guarantee and/or indemnity,
bond or other surety granted to or required by
Australia Post to be granted to it, by or on behalf of
the Contractor as security for performance of the
Contractor’s obligations under this Agreement.
(ii) any gender includes the other genders;
and
(iii) a person includes an individual, a body
corporate and the Crown in whatever
capacity.
(b) Unless the context otherwise requires, a
reference to:
Services means delivery (including collection) within
the Delivery Area by the Contractor of Articles of the
general nature set out in Item 4 of the Reference
Table pursuant to the APT&C and this Agreement
excluding (for the removal of doubt) invoicing any
Customer, which Australia Post will do.
Specifications means the service specifications
referable to the Services contained in the Schedule
and the Mail Service Specifications of the tender
documentation provided to the Contractor by
Australia Post prior to entry into this Agreement, or
as added to or otherwise varied from time to time
whether in the form of directions, timetables, lists or
otherwise.
Page | 3
the singular includes the plural and vice
versa;
AUSTRALIA POST
(i)
any legislation includes any regulation
or instrument made under it and where
amended re-enacted or replaced means
that
amended
re-enacted
or
replacement legislation;
(ii) any other agreement or instrument
where amended or replaced means that
agreement or instrument as amended
or replaced;
(iii) a clause, schedule or annexure is a
reference to clause of , annexure to, or
schedule to this Agreement;
(iv) any thing is a reference to the whole or
any part of it and a reference to a group
of persons is a reference to any one or
more of them;
(v) any word or phrase that is given a
defined meaning in the Act or the APT&C
shall, for purposes of this Agreement, be
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
a reference to the word or phrase so
defined;
(vi) a day is to be interpreted as the period
of time commencing at midnight and
ending 24 hours later;
(vii) a month is to be interpreted as a
calendar month; and
amount of Services available for performance
from day to day under this Agreement.
2.5
Australia Post reserves the right to engage
other contractors to perform the Services as
and when, in Australia Post’s discretion,
required.
2.6
In performing Services the Contractor must:
(viii) time is to local time in the capital city of
the State where the majority of the
Services are to be performed.
(a) perform all of its obligations under this
Agreement in a sound and commercially
reasonable manner with appropriate
professional skill, care and diligence, and
honesty;
(c) Where any word or phrase is given a
defined meaning, any other part of speech
or other grammatical form in respect of
that word or phrase has a corresponding
meaning.
(b) do all lawful and co-operative acts
necessary on its part to bring about the
contractual result and to comply with:
(d) Unless the context otherwise requires, if a
period of time is specified and dates from a
given day or the day of an act or event, it is
to be calculated exclusive of that day.
(i)
(iii) the requirements of all Authorities; and
(iv) Our Ethics; and
(e) Use of the word including and similar
expressions are not, nor are they intended
to be words of limitation.
1.3
(c) procure each of its servants, agents,
consultants, Subcontractors and suppliers
to sign execute and deliver all such
documents, instruments and writings and
procure to be done all such acts, matters
and things including the provision of
relevant information in a timely manner as
may be necessary or desirable to give full
effect to this Agreement.
Successors and assignees
A Person includes the trustee, executor,
administrator, and successor in title and
permitted assignee of that Person.
1.4
Headings, notes and table of contents
Headings, marginal notes, footnotes and the
table of contents are included for ease of
reference. None of the provisions of this
Agreement shall be construed or interpreted by
reference to such headings, marginal notes,
footnotes or table of contents.
2
Services
2.1
The Contractor must, in accordance with the
terms of this Agreement, provide the Services
to Australia Post strictly in accordance in all
respects with the Performance Requirements.
2.2
In consideration of and subject to the
Contractor performing its obligations under
this Agreement, Australia Post shall pay the
Contractor the Contract Fee, adjusted by any
additions or deductions, in accordance with the
terms of this Agreement.
2.3
The Contractor acknowledges and accepts
that Australia Post cannot and does not
guarantee any particular demand for or use of
the Services, nor any particular level of
Contract Fee from the provision of the Services.
The Contractor further acknowledges and
accepts that the minimum number of hours
that Australia Post may allocate is zero (0).
2.4
Australia Post will use reasonable endeavours
to provide to the Contractor opportunities to
perform Services, but will not be liable for any
failure to do so, or for any variations in the
Page | 4
Relevant Laws;
(ii) Relevant Standards;
2.7
Where under any Relevant Law (including, any
law concerning registrations, payments, taxes,
activities, or arrangements in respect of
workers compensation, payroll tax, or work
health and safety):
(a) the Contractor has an obligation to take
action,
effect
registration,
provide
information
or
statements,
make
payments, withhold monies, or the like; and
(b) Australia Post has, or may have, an
independent, concurrent or consequential
liability to take action, effect registration,
provide information or statements, make
payments, withhold monies, or the like, in
the event that the Contractor omits to fully
comply with the Contractor’s obligations as
prescribed by such Relevant Law,
the Contractor will fully comply with the
Contractor’s obligations as prescribed by the
Relevant Law and provide to Australia Post
upon request such evidence of the Contractor’s
compliance with any such Relevant Law.
3
Term of Agreement
3.1
The Contractor must commence performing
the Services on the Commencement Date and
continuing performing the Services for the
Term, unless this Agreement is terminated prior
to the expiry of the Term.
AUSTRALIA POST
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
3.2
If Australia Post is willing to engage the
Contractor for a Further Period it will give
notice to the Contractor accordingly not less
than ninety (90) days before expiry of the Initial
Term.
3.3
If the Contractor receives a notice under clause
3.2, it must accept the offer for the Further
Period within fifteen (15) Business Days of
receipt, otherwise such offer will lapse. If the
offer is accepted, the Term will be extended
accordingly and the engagement of the
Contractor for the Further Period will, unless
otherwise agreed in writing by the parties, be
on the same terms and conditions as
contained in this Agreement.
3.4
Australia Post may similarly offer to engage
the Contractor for additional consecutive
Further Periods, up to the maximum number of
Further Periods set out in Item 10 of the
Reference
Table.
Engagement
of
the
Contractor for additional Further Periods will,
unless otherwise agreed in writing by the
parties, be on the same terms and conditions
as contained in this Agreement.
4
Status of Contractor
4.1
The Contractor is an independent contractor
and must not for any purpose in connection
with the provision of Services or otherwise
represent or hold itself out to be, acting as, or
deemed to be an employee or agent of
Australia Post. Nothing in this Agreement either
express or implied will give rise to the
relationship of employer and employee,
principal and agent, or partnership between
Australia Post and the Contractor.
4.2
Australia Post is required by law to deduct
(including any deduction under clause 33);
(f) Australia Post is not liable for any other
payment over and above the Contract Fee;
and
(g) where any government directive or
legislative
amendment
affects
the
conditions of this Agreement so as to
impose on Australia Post the obligation for
payment of any Employer Obligation or
Employee Benefit, the Contractor must
assume liability for the payment, and
indemnifies and must keep indemnified
Australia Post in respect of any such
payment which Australia Post is required to
make.
5
5.1
(a) the Contractor and its Personnel are not
employees or agents of Australia Post and
have no authority to act as agent of or in
any way bind or commit Australia Post to
any obligation of any kind;
Warranty if Contractor not a trustee
If the Contractor is not described in Item 1 of
the Reference Table as trustee of a trust, the
Contractor warrants that it enters into this
Agreement in its own right and not as a trustee
for any Person.
5.2
As an independent contractor, the Contractor
acknowledges and accepts that:
Contractor a Trustee
Application of clause if Contractor is a trustee
Clauses 5.3 and 5.4 apply if the Contractor
enters into this Agreement as trustee of any
trust (Trust) regardless of whether or not that
Trust is described in Item 1 of the Reference
Table.
5.3
Warranties as to Trusts
Where the Contractor is a trustee, the
Contractor is bound both personally and in its
capacity as a trustee and the Contractor
warrants to Australia Post that it:
(a) is the sole trustee of the Trust and will not
during the Term resign that office or
appoint a new or additional trustee of the
Trust nor cause the Trust to vest;
(b) its
Personnel
are
employees,
Subcontractors or agents of the Contractor
for taxation and other purposes;
(b) has entered into this Agreement for the
purposes and benefit of the Trust and has
obtained the consent or approval of any
Person which is needed to ensure that the
property of the Trust is bound upon the
execution of this Agreement;
(c) Australia Post is not responsible for
payments of Employer Obligations or
Employee Benefits and the Contractor
indemnifies and must keep indemnified
Australia Post against any payments by
Australia Post of Employer Obligations or
Employee Benefits;
(c) has power under the relevant Trust deed to
enter into this Agreement, to undertake the
obligations and liabilities in the manner and
the extent contemplated by this Agreement
and to apply the assets of the Trust in
satisfaction of any money payable under
this Agreement; and
(d) the Contractor is responsible for payments
of Employer Obligations and Employee
Benefits;
(d) has an unrestricted right to be fully
indemnified out of the assets of the Trust;
and
(e) the Contractor is responsible for any tax
payments in respect of the Contract Fee
except for any tax payments which
(e) will not cause or suffer the Trust deed to be
varied in any respect (without the prior
written consent of Australia Post).
Page | 5
AUSTRALIA POST
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Mail Contractor Agreement
5.4
Australia Post’s reliance on Trust warranties
The Contractor acknowledges and agrees that
this Agreement is entered into on the basis
that each of the warranties contained in clause
5.3 is and will remain true and correct
throughout the Term.
6
Payment of Contract Fee
6.1
In consideration of performance of the Services
Australia Post will pay the Contractor the
Contract Fee. The Contract Fee (which the
Contractor acknowledges forms part of
Confidential Information) will be calculated and
payable in the manner set out in Item 6 of the
Reference Table.
6.2
The Contractor must, if requested (and, if so, as
a condition precedent to payment), provide to
Australia Post all information necessary and all
documents reasonably required by Australia
Post to enable Australia Post to periodically
determine the Contract Fee.
6.3
The Contractor agrees to accept payment by
electronic funds transfer to an Australian bank
account or financial institution, which the
Contractor must nominate as a pre-condition
to payment.
6.4
Payment to the Contractor will be deemed to
be made once the deposit is received by the
Contractor’s nominated bank or financial
institution.
7
Records Information and Reporting
7.1
The Contractor must, at its own cost, record
and keep in accordance with good accounting
principles and practice applied in Australia and
provide to Australia Post (by upload and/or
download or otherwise) such Data in such
media (including upon any relevant item of
Equipment) in relation to the provision of the
Services as from time to time required by
Australia Post so as to enable Australia Post to
ascertain:
(a) the Contractor’s compliance
Performance Requirements;
with
the
(b) the nature and quantity of Articles
delivered in performance of the Services;
(c) the Contractor’s cost savings as a result of
Australia Post Initiatives; and
(d) any other act matter or thing reasonably
requested by Australia Post.
7.2
The Contractor must also at its own cost:
(a) as often as Australia Post may require,
produce to Australia Post:
(i)
for inspection, any relevant item of
Equipment intended for recording Data;
and
(ii) for inspection or audit in accordance
with clause 25, copies of any or all of
Page | 6
such Data in
required; and
whatever
medium
(b) retain all Data for a period of at least seven
(7) years from the date of its respective
creation.
8
Contact Fee Adjustment – Australia
Post Initiatives
8.1
The Contractor must take all steps and provide
all information required to assist with and
facilitate all Australia Post Initiatives.
8.2
If Australia Post has made or intends or
proposes to make an Australia Post Initiative,
then Australia Post may by notice in writing to
the Contractor at any time require a review of
the Contract Fee to take into account any
changes to the Contractor’s cost structure,
whether cost increases or savings, that have
been or might reasonably be expected to be
achieved in the provision of Services as a result
of that Australia Post Initiative.
8.3
Within ten (10) Business Days of the Contractor
receiving a notice under clause 8.2, the parties
must meet to review the impact of the
Australia Post Initiative and negotiate in good
faith with a view to agreeing a variation in the
Contract Fee (including any adjustment that
should be made as a result of payments
already made, taking into account the date of
impact of the Australia Post Initiative and/or
the impact over time).
9
Variations
9.1
Australia Post may at any time by notice to the
Contractor vary the Services (including the
Delivery Area), whether permanent or in any
particular case, and/or the Performance
Requirements.
To
avoid
doubt,
where
warranted in the Australia Post Manager’s
opinion, such notice may be immediate and
may be a verbal notice providing it is
subsequently confirmed in writing. If such
variation amounts to a material variation of
the
Services
and/or
the
Performance
Requirements, the Contract Fee will be
adjusted by the parties negotiating in good
faith to reflect any additional direct costs
reasonably incurred by the Contractor and/or
any cost savings which the Contractor
achieves or in the reasonable opinion of
Australia Post should achieve as a result of the
variation,
together
with
a
reasonable
allowance for profit and overheads. In
determining whether a variation in the Delivery
Area (whether permanent or temporary) gives
rise to an additional direct cost, the cost which
the Contractor would have incurred if an Article
had been delivered to the boundary of the
Delivery Area (nearest the Delivery Point
outside the Delivery Area), must be deducted
from the actual cost.
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9.2
For the purposes of clause 9.1, the Contractor
must, if so requested in writing by Australia
Post, provide within ten (10) Business Days:
(a) a written estimate of the financial impact of
a proposed variation, including the
supporting calculations; and
(b) a tax invoice in a form reasonably required
by Australia Post detailing the additional
costs incurred by the Contractor.
Australia Post may withhold any adjustment in
the Contract Fee until such time as the
Contractor complies with its obligations under
this clause 9.2.
9.3
If the number of Delivery Points increases
beyond those in the Delivery Area as at the
Commencement Date (or as varied by
agreement of the Parties) by:
(a) More than 20 in respect of Street Mail
Delivery; or
(b) More than 10 in respect of Roadside Mail
Delivery, (as both of those types of Services
are designated by Australia Post)
then the Contractor will be entitled to an
additional payment for any variations in time
and route distance travelled calculated by
reference to the Contractor’s operating costs
as specified in the Contractor’s tender
submission. Australia Post and the Contractor
will negotiate an amount for this additional
work.
For the avoidance of doubt a Contractor is not
entitled to further additional payments under
this clause 9.3 until a further increase of 20 or
more Delivery Points in respect of Street Mail
Delivery or 10 or more Delivery Points in
respect of Roadside Mail Delivery has occurred.
10
“Fuel Index” means the monthly average wholesale
cost of fuel published by an independent fuel monitor
of Australia Post’s choice, applicable to the capital
city of the State in which the majority of Services are
being performed.
“LPI” means the Labour Price Index, Catalogue
Number 6345.0 published by the Australian Bureau of
Statistics for the Transport, Postal and Warehousing
(as updated from time to time) applicable to the
State in which the majority of Services are being
performed.
“Periodic Review Period” means:
(a) the period between the date of submission of the
current Review Notice for a Periodic Review and
the date of submission of the last Review Notice
for a Periodic Review or,
(b) in the event that the Periodic Review is taking
place for the first time, the period between the
date of submission of the current Review Notice
for a Periodic Review and the date that tenders
for the Agreement closed.
10.2 Either Australia Post or the Contractor (subject
to clause 10.3) may by notice in writing
(“Review Notice”) to the other apply for a
review of the Contract Fee, to take account of
changes to the cost base of certain input costs
of providing the Services, on the conditions set
out in this clause 10.
10.3 To be eligible to apply for a review of the
Contract Fee under this clause 10 the
Contractor must:
(a) have itemised an allowance for labour
costs, fuel costs and motor Vehicle
operating costs in the Contractor’s tender
submission; and
(b) not be in breach of this Agreement; and
Contract Fee Adjustment – Input
Costs
(c) remedy any breach of this Agreement
which has not been remedied and of
which the Contractor has been given
notice.
10.1 Definitions:
For the purpose of this clause 10,
10.4
”Annual Review Period“ means:
(a) the period between the date of submission of the
current Review Notice for an Annual Review and
the date of submission of the last Review Notice
for an Annual Review or,
(b) in the event that the Annual Review is taking
place for the first time, the period between the
date of submission of the current Review Notice
for an Annual Review and the date that tenders
for the Agreement closed.
“CPI” means the Consumer Price Index, Catalogue
Number 6401.0, All Groups Index published on a
quarterly basis by the Australian Bureau of Statistics
(as updated from time to time) applicable to the
capital city of the State in which the majority of
Services are performed
Page | 7
Either Australia Post or the Contractor may
submit a Review Notice to the other, applying
for an annual review of the Contract Fee to
take into account any variation in labour
costs, vehicle operating costs and fuel costs
(“Annual Review”), provided that:
(a) The first Review Notice for an Annual Review
may not be submitted until at least 11
months
have
elapsed
from
the
Commencement Date. For the sake of clarity,
this means that if the Contract commenced
on 1 July the first Review Notice for an Annual
Review may not be submitted until 1 June in
the following year, then pursuant to clause
10.10 any variation would take effect from 1
July; and
(b) Any further Review Notice for an Annual
Review may not be submitted until at least 12
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months have elapsed from the date that the
last Review Notice for an Annual Review was
submitted. For the sake of clarity, this means
that if a Review Notice for an Annual Review
was submitted on 1 June the next notice for
an Annual Review may not be submitted until
1 June in the following year, then pursuant to
clause 10.10 any variation would take effect
from 1 July.
10.5
10.6
10.7
10.8
(b) Any further Review Notice may not be
submitted until at least 3 months have
elapsed from the date that the last
Review Notice for a Periodic Review was
provided. For the sake of clarity, this
means that if a Review Notice for a
Periodic Review was submitted on 1
September, the next Review Notice for a
Periodic Review may not be submitted
until 1 December, then pursuant to
clause 10.10 any variation would take
effect from 1 January subject to the
provisions of clause 10.8.2; and
Under an Annual Review, the component of
the Contract Fee attributed to labour costs
will be adjusted (up or down) if there has
been a movement in the LPI over the Annual
Review Period and any adjustment will be
calculated in accordance with the percentage
movement in the LPI over the Annual Review
Period. For the sake of clarity, this means
that if the LPI has increased by 2% over the
Annual Review Period, the component of the
Contract Fee attributed to labour costs will
increase by 2%.
Under an Annual Review, the component of
the Contract Fee attributed to vehicle
operating costs will be adjusted (up or down)
if there has been a movement in the CPI and
any adjustment will be calculated in
accordance with the percentage movement
in the CPI over the Annual Review Period. For
the sake of clarity, this means that if the CPI
has increased by 2% over the Annual Review
Period, the component of the Contract Fee
attributed to vehicle operating costs will
increase by 2%.
Under an Annual Review, the component of
the Contract Fee attributed to fuel costs will
be adjusted (up or down) if there has been a
movement in the Fuel Index over the Annual
Review Period, and any adjustment will be
calculated in accordance with the percentage
movement in the Fuel Index over the Annual
Review Period. For the sake of clarity, this
means that if the Fuel Index has increased by
2% over the Annual Review Period, the
component of the Contract Fee attributed to
fuel costs will increase by 2%.
(c) Notwithstanding clause 10.8.1(b), a
Review Notice for a Periodic Review may
not be submitted until at least 3 months
have elapsed from the date that the last
Review Notice for an Annual Review was
submitted. For the sake of clarity, this
means that if a Review Notice for an
Annual Review was submitted on 1 June,
the next Review Notice for a Periodic
Review may not be submitted until 1
September, then pursuant to clause 10.10
any variation would take effect from 1
October subject to the provisions of
clause 10.8.2.
10.8.2 Under a Periodic Review, the component of
the Contract Fee attributed to fuel costs will
be adjusted (up or down) if the Fuel Index has
increased or decreased by at least seven
percent (+/- 7%) over the Periodic Review
Period and any adjustment will be calculated
in
accordance
with
the
percentage
movement in the Fuel Index over the Periodic
Review Period.
10.9
The Contractor acknowledges that:
(a) the data which forms the CPI, LPI and
Fuel
Index
is
obtained
from
independent sources;
(b) Annual Reviews and Periodic Reviews
may only be carried out once the data
becomes available to Australia Post;
Periodic Reviews of Fuel Costs
10.8.1 In addition to the Annual Review, either
Australia Post or the Contractor may submit
a Review Notice to the other applying for an
periodic review of the Contract Fee to take
into account any variation in fuel costs only
(“Periodic Review”), provided that:
(a) The first Review Notice for a Periodic
Review may not be submitted until at
least 2 months have elapsed from the
Commencement Date. For the sake of
clarity, this means that if the Contract
commences on 1 July the first Review
Notice for a Periodic Review may not be
Page | 8
submitted until 1 September, then
pursuant to clause 10.10 any variation
would take effect from 1 October subject
to the provisions of clause 10.8.2;
(c)
10.10
delays in the publication of the data,
through no fault of Australia Post, may
lead to delays in the Annual Reviews
and Periodic Reviews being carried out.
Any variation in the Contract Fee as a result
of an Annual Review or Periodic Review under
this clause 10 will become effective on the
first day of the Payment Period following the
giving of the relevant Review Notice.
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11
Contractor's Warranties
11.1 As an inducement to Australia Post to enter
into and remain a party to this Agreement, the
Contractor warrants and represents (each as a
separate warranty and representation) at
each of the execution date of this Agreement
and again on every occasion Data is provided
by the Contractor to Australia Post during the
Term that:
(a) it is solvent and able to pay its accounts
according to normal trading terms;
(b) it has examined and understood all
information provided by Australia Post and
has
made
all
reasonable
inquiries
considered necessary of professional
advisers and otherwise having regard to
the Performance Requirements and all
other aspects of this Agreement;
conditions of consent prescribed by Australia
Post, be subject to the condition precedent in
all cases that the Contractor must, at the
Contractor’s cost in all things, fully train the
intending assignee in performing Services to a
standard reasonably approved by Australia
Post.
12.4 Any change of control of the Contractor will be
deemed to be an assignment of this
Agreement, except where the change of control
is due to an internal re-organisation of the
Contractor and does not amount to an
effective change of control.
For the purpose of this clause 12, “change of
control” means:
(a) any transfer of any shares, or any other
interest in the Contractor or in any entity
that directly or indirectly controls or
influences that Contractor; or
(c) it has not been induced to enter into this
Agreement nor relied on representations,
warranties or statements whether oral or
written made by Australia Post, its officers,
employees or agents except those
contained in the information provided to all
tenderers upon which the Tender was
based;
(d) it has been made aware of the need for it to
seek independent legal and financial advice
concerning the terms and effect of this
Agreement and has been given a
reasonable opportunity to seek and obtain
such advice; and
(e) it acknowledges that it has read and
understood the Supplier Code of Conduct
and warrants that the Contractor and all
persons consulting to, contracting to or
employed by the Contractor in connection
with the performance of the Contractor's
obligations under this Agreement shall work
to the ethical, social and environmental
standards of conduct set out in the Supplier
Code of Conduct.
12
Assignment
12.1 The Contractor must not, without the prior
consent in writing of Australia Post, sell, assign,
mortgage, charge or encumber, or purport to
do so, this Agreement or any of the money
payable or to become payable under this
Agreement.
12.2 Any request by the Contractor for consent to
any of the matters listed in clause 12.1 must be
made in accordance with the same principles
and procedures set out in clauses 13.2 and 13.3
as referable to subcontracting (with the word
“Subcontractor” replaced with “assignee”).
12.3 Any consent given under clause 12.2 (applying
the same principles and procedures set out in
clauses 13.2 and 13.3) will, in addition to any
Page | 9
(b) any reconstruction, amalgamation or
reorganisation of the Contractor or of any
entity that directly or indirectly controls or
influences the Contractor,
if, in either case, after such a transaction, there
would be a change in the person having the
power to direct its management and policies,
or if no one person has such power, a change in
the majority of such persons who, acting
together, have such power.
13
Subcontracting
13.1 The Contractor must not subcontract any of its
obligations under this Agreement without the
prior written consent of Australia Post. Where
such consent is provided and the Contractor
uses Subcontractors, the Contractor agrees
that it will at all times remain responsible for all
actions of the subcontractor and the complete
and timely performance of all obligations
under this Agreement.
13.2 In seeking consent under clause 13.1, the
Contractor must provide to Australia Post
particulars in writing of the Services to be
subcontracted and the name and the address
of the proposed Subcontractor together with
any other information which Australia Post
reasonably requests in relation to the
proposed performance of Services by the
Subcontractor,
including
the
proposed
subcontract documents.
13.3 Within twenty (20) Business Days after
submission of a request by the Contractor for
consent under clause 13.2, and providing the
Contractor has properly complied with clause
13.2, Australia Post will notify the Contractor
whether it has consented to the request (and of
any conditions of that consent). If no such
notice has been given within that period, the
request will be deemed to be denied.
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13.4 The Contractor agrees that in its dealings with
its Subcontractors:
extent possible) in Intellectual Property created
by the Contractor during the Term which
relates to Australia Post or is in any way
associated with the provision of the Services
immediately upon creation. The Contractor will,
and
must
ensure
its
Personnel
and
Subcontractors will do all things necessary
(including
executing
any
assignment
document) to perfect any such assignment
under this clause 15.2.
(a) all of its Subcontractors engaged in
connection with the Services are engaged
as independent contractors to the
Contractor;
(b) it will not hold itself out, or purport to hold
itself out, as being the agent of Australia
Post in connection with any subcontract;
(c) it has no authority, and will not purport to
have any authority, to contract or
otherwise deal with any person as agent
for, or on behalf of, Australia Post;
(d) all of its Subcontractors will enter into
legally
binding
contracts
with
the
Contractor which will impose upon the
Subcontractors the obligations which are
under this Agreement imposed upon the
Contractor, including those obligations
contained in clauses 2, 4, 7,11, 13, 15, 17 to
28 inclusive, 34, 36, and 37.
13.5 For the avoidance of doubt, clauses 13.1, 13.2,
13.3 and 13.4 do not in any way limit the ability
of the Contractor to engage Personnel to
perform the Services (or any part of them) in
accordance with this Agreement.
14
Security
14.1 Australia Post may at any time during the
Term require the Contractor, on not less than
five (5) Business Days written notice, to provide
Security for the purpose of ensuring the due
and proper performance of this Agreement.
14.2 Without limiting clause 14.1:
(a) the Contractor must on or before the
Execution Date provide to Australia Post
the Security described in Item 12 of the
Reference Table; and
(b) where the Contractor is:
(i)
a Corporation, each of its shareholders
and directors from time to time; or
(ii) a Trust, each of its beneficiaries from
time to time (save those specifically
excused)
will be required to enter into a guarantee
and indemnity in the form approved by
Australia Post in respect of the Contractor’s
obligations pursuant to this Agreement.
15
Intellectual Property
15.4 The Contractor must promptly disclose to
Australia Post any invention, discovery or
improvement and all programs, systems and
concepts made, conceived or created as a
direct result of providing the Services.
15.5 The Contractor must not, in the course of
performing the Services, breach the Intellectual
Property rights of Australia Post or any third
party. If any such rights are breached, the
Contractor indemnifies and must keep
indemnified Australia Post against any loss or
damage it may suffer arising out of the breach,
and the Contractor must (if so required by
Australia Post) assist in and/or assume the
defence of any claim or action brought against
Australia Post for infringement of any third
party rights, including any patents, or for
wrongful use of proprietary information.
15.6 The Contractor agrees that it will not make use
of or display Australia Post's Intellectual
Property including the display of any Australia
Post trade mark on any Vehicle, work attire,
stationery or documents other than in
accordance with this Agreement or any
guidelines from time to time published by
Australia Post and for the purpose and in the
performance of the Services.
16
15.2 The Contractor and its Personnel severally
assign all rights (existing and future, to the
Goodwill
16.1 The Contractor acknowledges and agrees that
Australia Post owns and will be entitled to
retain all Goodwill associated with the
performance by the Contractor of this
Agreement and nothing in this Agreement will
be construed as conferring upon the
Contractor any right, interest or title in the
Goodwill.
17
15.1 All Intellectual Property vested in Australia
Post on the Commencement Date remains the
sole property of Australia Post and all
Intellectual
Property
created
in
the
performance of the Services vests solely in
Australia Post upon creation.
Page | 10
15.3 The Contractor must not claim ownership of
any Intellectual Property referred to in this
clause 15.
Personnel
17.1 The Contractor must at all times maintain one
of its Personnel nominated as Contractor’s
Representative for the purpose of liaison
between the Contractor and Australia Post.
17.2 Any direction, notice or other communication
desired or required to be given by Australia
Post to the Contractor will be sufficiently given
if given (orally or, if so required by this
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Agreement, in writing) to the Contractor’s
Representative.
(f) take other reasonable steps to address
Australia Post’s complaint in relation to the
relevant Personnel;
17.3 The Contractor may, subject to compliance
with clause 21, employ Personnel to perform
the Services and warrants in respect of such
Personnel:
and the Contractor must in any such event
immediately and at the Contractor’s own cost
in all things comply with such action or
direction by Australia Post, provided always
Australia Post may, in its sole discretion and
without in any way limiting or waiving any of its
rights under this clause 17 or this Agreement
generally, agree to review its decision to direct
the removal of the Personnel or reinstate that
Personnel’s access to any Australia Post
computer system or premises where the
Contractor has provided evidence satisfactory
to Australia Post of remedial action in relation
to the security risk, performance of the
Services, or causing or contributing to a breach
by the Contractor’s Personnel.
(a) they are, and will remain, eligible to work in
Australia, of an age which is above the
minimum required by any Relevant Law,
suitably qualified and experienced and
possess the level of trustworthiness and
professional skill, care and judgement
which is necessary in providing or
overseeing the provision of the Services
and, as far as practicable, the Contractor
will use the same Personnel continuously in
carrying out the Services;
(b) it will at its own cost provide such training
for Personnel (including new Personnel) to
ensure they perform Services in accordance
with Performance Requirements; and
(c) that before engaging any Personnel in the
performance of Services it will allow
sufficient time (which will not be less than
ten (10) Business Days) to ensure that:
(i)
each such Personnel receive sufficient
training so that they will be capable of
complying with the provisions of this
Agreement and in particular, the
Specifications set out in the Schedule;
and
(ii) the
Contractor
can
satisfy
requirements of clause 21.
In this clause 17.4 “security risk” means a risk
to the safety and/or wellbeing of either persons
or property or both.
17.5 The Contractor must ensure that those of its
Personnel whose duties include driving Vehicles
or operating machinery, hold a current driver's
and/or operator’s licence in compliance with
Relevant Laws.
The Contractor must not permit any Personnel
to provide any part of the Services which
involve driving or machinery operating duties
until the Contractor has ensured that each
such Personnel holds a current driver's and/or
operator’s licence.
the
17.4 If Australia Post is of the opinion that any of
the Contractor’s Personnel:
(a) have represented, do represent or may
represent an unacceptable security risk in
respect of the provision of Services;
(b) have not previously performed, or are not
currently performing, the Services in
accordance with this Agreement, including
in accordance with the Performance
Requirements; or
17.6 The costs of verifying that Personnel hold a
current driver's and/or operator’s licence will be
borne solely by the Contractor.
17.7 The Contractor must ensure that all of its
Personnel at all times hold a valid visa which
entitles them to work in Australia.
The Contractor must not permit any Personnel
to provide any part of the Services until the
Contractor has ensured that each of its
Personnel holds a current visa to work in
Australia.
(c) have caused or contributed to, or are
causing or contributing to, a breach of this
Agreement,
then Australia Post may in its
discretion:
absolute
(d) immediately cancel access of such
Personnel to any Australia Post computer
system or premises; and/or
(e) immediately suspend (temporarily or
otherwise) each such Personnel’s right to
perform the Services on behalf of the
Contractor, and as soon as practicable
direct in writing that the Contractor
permanently remove any such Personnel
from providing the Services; and/or
Page | 11
In accordance with all Relevant Law the
Contractor shall not allow any Personnel to
work outside the conditions of their visa,
including excess hours.
18
No Rights Over Articles
18.1 The Contractor acknowledges and agrees that:
(a) the Contractor is a bailee in relation to
Articles and accepts all obligations of a
bailee; and
(b) the Contractor has no right of lien or right
or ability to in any way encumber Articles.
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19
Supply of Contract Materials by
Australia Post
19.1 Australia Post will supply to the Contractor, at
its own cost, sufficient copies of the Contract
Materials
(including
WH&S
information)
considered necessary by Australia Post for the
proper and complete performance of this
Agreement.
19.2 Contract Materials remain the property of
Australia Post, and must not, without the prior
written approval of Australia Post, be used,
copied or reproduced for any purpose other
than the provision of the Services, and must be
returned by the Contractor to Australia Post on
demand.
19.3 Intellectual Property in all Contract Materials
will remain, as between Australia Post and the
Contractor, the property of Australia Post for
all purposes.
20
Equipment and Tools of Trade
20.1 The Contractor acknowledges Australia Post
may, at its discretion, provide Equipment to the
Contractor at the rental fee (if any) set out at
Item 14 of the Reference Table which the
Contractor agrees to pay (together with any
GST thereon) as and when due. Any Equipment
so supplied will remain the property of
Australia Post and the Contractor will hold the
same (at the Contractor’s risk) as bailee only.
The Contractor must ensure that Equipment is
kept safe, secure, adequately maintained and
used only in a proper and safe manner strictly
in
accordance
with
manufacturers’
specifications, safe operating procedures and
all Relevant Laws and for the sole purpose of
performing the Services. The Contractor will be
responsible for ensuring that its Personnel are
adequately trained in the use of the Equipment
and will bear all associated costs. The
Contractor will be liable for replacement or
repair of any Equipment which is lost, stolen,
damaged or misused. On termination of this
Agreement the Contractor must immediately
return all Equipment to Australia Post in good
condition, fair wear and tear only excepted.
20.2 The Contractor must provide all Tools of Trade
and maintain them in sound working order and
good condition, at its own cost, and use them
only in a proper and safe manner strictly in
accordance with manufacturers’ specifications
and all Relevant Laws.
20.3 The Contractor must take all reasonable steps
to ensure that no Tools of Trade, or their use,
have any detrimental effect on the Services,
Australia Post Property, Customers or the
general public.
20.4 Any damage caused to any property belonging
to Australia Post or any third party, either
Page | 12
directly or indirectly, as a result of any breach
of clauses 20.1, 20.2 or 20.3 must be rectified
by the Contractor at the Contractor’s cost and
the Contractor indemnifies and must keep
indemnified Australia Post in respect of any
such damage.
20.5 Australia Post acknowledges that the amount
it will charge as a rental fee for equipment and
tools of the trade as set out in Item 14 of the
Reference Table is a direct and proper
reflection of the actual cost of the service or
equipment in respect of which the costs are
charged.
Australia Post also accepts the
Contractor may wish to obtain the services or
equipment from a supplier other than Australia
Post.
21
Security Checks
21.1 The Contractor must take all reasonable steps
to ensure that no Personnel pose an
unacceptable risk to the safety or security of
any Person, property or working environment.
21.2 The Contractor acknowledges performance of
the Services will entail (among other things) the
Contractor and its Personnel being entrusted:
(a) with the care and carriage of Articles;
(b) to enter commercial or private premises
(including secured premises); and
(c) to deal and interact with individuals
including staff at Australia Post, Customers
and members of the public generally.
As a consequence Australia Post requires
security and identity checks be undertaken
(including inquiries with the Australian Federal
Police and/or any Police Service of a State or
Territory) in respect of the Contractor (including
in Australia Post’s absolute discretion if the
Contractor is a Corporation, any of the
Contractor’s directors whether they perform or
intend to perform the Services or not) and its
Personnel (each a Security Check) as and
when from time to time required by Australia
Post.
21.3 It is a condition precedent to their undertaking
performance of any Services, and continuing to
perform any Services, that all Personnel
consent to undergo (and then pass) a thorough
Security Check. The Contractor will not be
permitted, and must not permit any Personnel,
to provide any part of the Services until an
initial Security Check has been completed. The
Contractor must provide Australia Post with all
necessary Personnel details for that purpose.
Australia Post will advise the Contractor of its
decision as soon as practicable.
21.4 The Contractor must immediately advise
Australia Post if, at any time, the Contractor
(including if the Contractor is a Corporation,
any of the Contractor’s directors) or any of its
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Personnel is charged with, convicted of, or
notified that they may be charged with any
offence.
21.5 The costs of Security Checks required by
clause 21.2 and 21.3 will be borne by the
Contractor.
22
Australia Post Reputation
22.1 The Contractor must at all times, by itself and
its Personnel, act so as to preserve the good
name and reputation of Australia Post when
performing the Services including when driving
Vehicles and otherwise act in a courteous, safe
and responsible manner (including in respect of
disposal of litter).
22.2 If any dispute or matter which does or may
affect the good name or reputation of Australia
Post arises between the Contractor and a third
party, including in respect of the provision of
Services, the Contractor must immediately
notify Australia Post, giving full particulars of
the dispute or matter.
22.3 If Australia Post considers that such dispute or
matter does or may have some adverse
impact on the good name or reputation of
Australia Post then, without prejudice to the
rights of either the Contractor or Australia
Post, Australia Post may resolve the dispute for
and on behalf of the Contractor on such terms
and conditions as it considers (in its sole
discretion) reasonable. Any costs incurred by
Australia Post (including any costs of
settlement) must be reimbursed by the
Contractor as a liquidated debt on demand
unless:
(a) the Contractor considers the terms and
conditions upon which Australia Post
resolved
the
dispute
were
grossly
unreasonable; and
(b) the Contractor notifies Australia Post of this
in writing within fifteen (15) Business Days
of the date upon which the dispute was
settled;
then the matter will be dealt with as a Dispute
under clause 31.
23
Contractor’s Insurances
23.1 Before
the
Commencement
Date
the
Contractor must effect, with an insurer
reasonably acceptable to Australia Post, all
insurances required under Relevant Law. The
Contractor must also maintain the following
insurances for the term of this Agreement:
(a) Public and Products Liability insurance with
a limit of not less than A$20 Million any one
event and in the aggregate per annum in
respect of Products.
(b) Motor Vehicle Third Party Property Damage
with a limit of not less than A$20 Million any
Page | 13
one event, unlimited in the aggregate per
annum.
(c) Marine Cargo insurance covering fire, flood,
collision, overturning, theft, loss of or
damage to Articles in possession of the
Contractor for not less than $50,000.00 any
one load/conveyance or if a greater
amount is specified in Item 15 of the
Reference Table, for not less than that
greater amount any one load/conveyance;
and
(d) General property insurance covering loss of
or damage to any Equipment, anywhere in
Australia, for not less than the amount
specified in Item 16 of the Reference Table.
23.2 The insurance policy outlined under clause
23.1(a) must include Australia Post as an
additional insured in respect of the Services
and provide that:
(a) the insurer waives all rights, remedies or
relief to which it might become entitled by
subrogation against any of the parties
comprising the insured and that failure by
any insured to observe and fulfil the terms
of the policy will not prejudice the insurance
in regard to any other insured; and
(b) in so far as the policy may cover more than
one insured all insuring agreements and
endorsements with the exception of limits
of liability will operate in the same manner
as if there were a separate policy of
insurance covering each party comprising
the insured.
23.3 All other insurances must note Australia Post
for their respective rights and interests.
23.4 Workers'
Compensation
Liability Insurance
or
Employers'
Except where clause 23.5 applies:
(a) The Contractor must obtain and maintain
for the Term, insurance or pay levies or
similar charges, as required by any
legislation relating to compensation in
respect of claims by injured workers, their
legal representatives or dependants.
(b) The Contractor indemnifies and must keep
indemnified Australia Post in respect of any
claim for personal injury or death by any of
the Contractor's Personnel, their personal
representatives or their dependents,
including a claim at common law, provided
that the Contractor's liability to indemnify
Australia
Post
shall
be
reduced
proportionately to the extent that the
negligent act, omission or default of
Australia Post or its servants or agents
contributed to the relevant injury, loss or
damage.
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(c) For the purposes of this clause 23 "worker"
means any natural Person in respect of
whom the Contractor is liable or in respect
of whom the Contractor must take out
insurance by reason of any legislation
dealing with workers' compensation.
(e) Where the Contractor provides a cover
note, it must within a further five (5)
Business Days provide a certificate of
currency in respect of the particular policy
of insurance.
23.9 Procedure as to claims
23.5 Where the Contractor is prevented by law from
taking out workers' compensation insurance
the Contractor must, before commencing the
Services, obtain and maintain for the Term
personal accident insurance sufficient to:
The Contractor must:
(a) immediately notify its insurer or broker, and
Australia Post, in writing of any occurrence,
injury, death, loss, destruction or damage
likely to give rise to a claim under the
policies of insurance referred to in this
clause 23; and
(a) maintain as far as possible the Contractor's
projected income for the period of this
Agreement; and
(b) keep Australia Post informed of all
subsequent developments concerning the
possible claim or claims,
(b) cover medical and like expenses for any
such personal accident.
23.6 Insurance notices
provided always Australia Post acknowledges
that the Contractor may take immediate
action to avoid loss of life or damage to
property where reasonably necessary in the
circumstances.
All policies of insurance effected under this
Agreement must contain provisions:
(a) requiring the insurer to inform Australia
Post in writing that a notice has been given
to or served upon the Contractor under the
policy including any notice of cancellation,
notice of renewal or other notice under or in
relation to the policy; and
(b) which provide that a notice of claim given
to the insurer by either Australia Post or the
Contractor will be accepted by the insurer
as a notice of claim.
23.7 The Contractor must ensure that all of its
Subcontractors are similarly insured and
provide indemnities to the same extent as
required of the Contractor.
23.8 Evidence of insurances
(a) The
Contractor
acknowledges
and
warrants that prior to the Commencement
Date it will have taken out insurance
policies, which comply with this clause 23.
(b) The Contractor must, prior to the provision
of Services under this Agreement, and as
may reasonably be requested by Australia
Post from time to time, provide certificates
of currency, as evidence for each of the
policies of insurance required under this
Agreement in a form satisfactory to
Australia Post. The certificates must be
delivered to Australia Post by the
Commencement Date.
(c) The Contractor must provide all certificates
of currency to Australia Post each year
within 7 days of the policy renewal date.
(d) All certificates of currency must detail that
each insurance policy is paid in full for the
annual policy period. Certificates of
currency must also contain sufficient detail
to confirm the Contractor’s compliance with
the requirements stated under Clause 23.
Page | 14
24
Contractor’s Liability and Indemnities
24.1 Parties Indemnified
For the purposes of this clause 24 only,
“Australia Post” includes any person in respect
of whom Australia Post is vicariously liable,
including its employees and agents (but, for
removal of doubt, excluding Personnel).
24.2 Liability for damage to property
The Contractor will be solely liable for and
indemnifies and must keep indemnified
Australia Post from and against any liability,
loss, claim or proceeding in respect of any
injury, loss or damage whatsoever to any
property real or personal insofar as such injury,
loss or damage arises out of, or in the course
of, or by reason of the Contractor’s
performance of the Services.
24.3 Liability for injury to persons other than the
Contractor’s workers covered under clause
23.3
The Contractor will be liable for and indemnifies
and must keep indemnified Australia Post from
and against any liability, loss, claim or
proceeding whatsoever arising under any
legislation or at common law in respect of
personal injury to or death of any person other
than the Contractor’s Personnel in respect of a
claim covered under clause 23.3(b), arising out
of or in the course of or caused by the
performance of the Services.
24.4 Australia Post Liability Limited
Australia Post will not be liable to the
Contractor or third parties for any loss or
damage whatsoever suffered, or that may be
suffered (including consequential loss) as a
result of any act or omission by Australia Post,
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whether negligent or otherwise, in the
performance or non performance of any duty,
obligation or function under this Agreement or
in any way arising out of this Agreement
except for:
(iii) in respect of an Article, results from
delayed delivery, mis-delivery, negligent
delivery
or
non-delivery
by
the
Contractor.
24.7 Third Parties
(a) loss or damage to the Contractor’s
property caused by, and solely to the
extent of, the negligence of Australia Post;
and
(a) Where a third party suffers loss or damage
to an Article carried by the Contractor
Australia Post may agree to pay
compensation to the third party on such
terms and conditions as it considers (in its
sole discretion) reasonable, regardless of
whether Australia Post has excluded or
limited its liability to third parties.
(b) loss or damage arising from personal injury
or death suffered by the Contractor or any
Personnel involved in the performance of
the Services, caused by, and solely to the
extent of, the negligence of Australia Post.
(b) Where Australia Post has agreed to pay a
third party compensation, in accordance
with clause 24.7(a), that compensation and
any costs incurred by Australia Post
(including administrative costs of dealing
with the claim, the costs of retrieval, repair
and further processing of an Article and the
cost of arranging settlement) must be
reimbursed by the Contractor as a
liquidated debt on demand, unless:
24.5 Australia Post Property
The Contractor acknowledges Australia Post
Property entrusted to the Contractor is not
property of the Contractor and the Contractor
indemnifies and must keep indemnified
Australia Post in respect of the theft, loss of or
damage to, or loss or damage arising from the
use or carriage of, any item of Australia Post
Property.
(i)
24.6 Generally
The Contractor indemnifies and must keep
indemnified Australia Post from and against:
(a) any loss and damage whatsoever suffered,
or that may be suffered (including indirect
and consequential loss) by Australia Post or
third parties in any way arising out of this
Agreement, whether such loss or damage is
a result of any act or omission by Australia
Post, whether negligent or otherwise, in the
performance or non-performance of any
duty or obligation or function under this
Agreement, or the exercise of any
authority, right or power by Australia Post,
except for that loss or damage in respect of
which Australia Post is liable under clause
24.4;
(b) any claim, demand, loss, liability, or
expense arising out of the Contractor’s
failure to fully comply with its obligations
under this Agreement or any Relevant Law
or Relevant Standard;
(c) any amount paid by Australia Post to settle
any dispute between the Contractor and a
third party; and
(d) the theft, loss of or damage to, or loss or
damage arising from the use or carriage of,
any Australia Post property entrusted to
the Contractor which:
(i)
is caused by the Contractor;
(ii) arises during the time that the
Contractor has that item of Australia
Post Property in its possession or
control; or
Page | 15
the Contractor considers the terms and
conditions upon which Australia Post
resolved the matter were grossly
unreasonable; and
(ii) the Contractor notifies Australia Post of
this in writing within fifteen (15) Business
Days of the date upon which the matter
was settled:
then the matter will be dealt with as a
Dispute under clause 31. Should an
arbitrator find that the terms and
conditions were grossly unreasonable,
there is no obligation on the Contractor to
reimburse Australia Post for such amount.
(c) The parties agree that for the purposes of
determining whether the resolution under
clause 24.7(b) is grossly unreasonable, the
availability of an exclusion or limitation of
liability is to be disregarded.
25
Audit and Searches
25.1 Australia Post may, at any time on a Business
Day and after giving reasonable (in the
circumstances) notice to the Contractor,
conduct (either by itself or through an agent)
audits or inspections of Data recorded or
retained on any medium including books and
records of the Contractor, or at any time and
without prior notice conduct searches of the
Contractor’s premises, Vehicle or Vehicles, for
the purpose of assessing the level of
compliance by the Contractor with the terms of
this Agreement.
25.2 The Contractor agrees, for the purpose of
assisting such audits or inspections, to grant or
arrange access by Australia Post (or any
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nominated agent) to the Contractor’s premises
or any other place where the Data or records
are maintained or kept (including directing any
third party who may have custody or control of
such to provide such access if it is lawfully able
to do so). Further, the Contractor agrees to
give reasonable assistance to Australia Post
(or any nominated agent) in order to ensure
that any audit or inspection under this clause
25 proceeds expeditiously and is not adversely
affected.
25.3 The Contractor must provide to Australia Post,
within ten (10) Business Days of a written
request, evidence in writing that:
(a) any policy of insurance required under this
Agreement is current; and
(b) any licence or registration required by any
Relevant Law to be held current by the
Contractor or any of its Personnel, is
current.
25.4 The Contractor must on each anniversary of
the Commencement Date provide to Australia
Post a copy certificate of currency dated no
more than 14 days previously in respect of
each policy of insurance required under this
Agreement together with up-to-date details
regarding Items 1, 2 and 3 of the Reference
Table and (where the Contractor is a
Corporation) the name and address of each
then current director, even if there has been no
change over the prior twelve months.
26
Co-operation With Other Contractors
26.1 The Contractor will, when performing Services
or undertaking activities ancillary to the
performance of Services, cooperate, liaise and
coordinate with Australia Post, its employees
and agents and all other contractors so as to
avoid interference with or disruption to or delay
to the work of other contractors.
27
Confidential Information to enable the
Contractor to perform its obligations
pursuant to this Agreement or to advise
the Contractor; and
(ii) any Person to whom the Contractor is
required to disclose the Confidential
Information by law, and provided that
the Contractor has given at least 24
hours written notice on a Business Day
to the Australia Post Manager of this
requirement and its intention to disclose
the Confidential Information;
(d) maintain proper and secure custody of the
Confidential Information;
(e) use its best endeavours to prevent the use
or disclosure of Confidential Information
(otherwise than in accordance with this
clause 27) by third parties which have
received or accessed that information from
or through the Contractor;
(f) notify Australia Post of any actual or
suspected breach of confidence or security
of Confidential Information of which the
Contractor becomes aware;
(g) ensure that its Personnel and any
professional service providers are aware of
the confidential nature of the Confidential
Information and ensure that its Personnel
and professional service providers hold that
information in confidence on the terms of
this clause 27 and that Personnel who are
Subcontractors, and professional service
providers upon request by Australia Post,
execute a confidentiality agreement in the
form or to the effect of this clause 27;
(h) as soon as is practicable after the
termination or expiration of this Agreement,
deliver to the Australia Post Manager:
(i)
Confidential Information
27.1 The Contractor acknowledges that the
Confidential Information and all Intellectual
Property rights in such information will remain
the sole and exclusive property of Australia
Post.
(ii) any Australia Post forms or documents
in the Contractor’s possession or
control; and
(iii) any Vehicle identification sign and any
identification for the Contractor, and/or
its Personnel, provided by Australia
Post; and
27.2 The Contractor must:
(a) treat Confidential Information as secret and
confidential;
(b) not, without the prior written consent of
Australia Post, use Confidential Information
for
any
purpose
other
than
the
performance of its obligations pursuant to
this Agreement;
(c) restrict the disclosure
Information to:
(i)
Page | 16
of
Confidential
those of its Personnel and professional
service
providers
who
require
all the Confidential Information which is
in its possession or control and is in a
physical form, including all copies of
computer files; and
(iv) any Australia Post insignia or badges
used on clothing
provided always the Contractor may (but only
to the extent required to comply with any
Relevant Laws) make and retain on the
provisions of this clause 27 copies of any
Confidential Information excluding Confidential
Postal Information and Documents. Where the
Contractor claims an exemption from its
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obligation under this clause 27, it will bear the
onus of showing its entitlement to such
exemption.
27.3 The Contractor acknowledges that it is aware
of, and will bring to the attention of all
Personnel prior to their performing any
Services, the provisions of Part 7B of the Act
rendering it an offence punishable by fine
and/or imprisonment to use or disclose to any
Person Confidential Postal Information and
Documents.
28
Work Health and Safety and
Environment Management
Australia Post will be entitled, but not obliged,
to issue directions in relation to any work
health, safety and environmental (“WHS&E”)
issues which arise in respect of the rights and
obligations of the parties to this Agreement
and the Contractor must, at its own cost,
comply with such directions.
28.2
The Contractor acknowledges and agrees
that in relation to its provision of services in
Australia, the Contractor must:
comply with and ensure that any
Subcontractors, employees and agents
comply with all Relevant Laws and
Relevant
Standards
and
the
requirements of any Government
authority relating to WH&S in respect of
its obligations under this Agreement;
and
(b)
exercise all necessary precautions for
the health and safety of all Persons,
including its employees, employees of
Australia Post, other contractors,
employees of any of the Contractor’s
subcontractors as well as members of
the public who may be affected by the
actions of the Contractor or its
Subcontractors.
28.3
The Contractor must document and
implement an WH&S Management Plan
that demonstrates the Contractor’s
compliance with all duties of an
employer specified in relevant WH&S
legislation and satisfies Australia Post’s
WH&S requirements. A copy of the
WH&S Management Plan must be
submitted to Australia Post and the
Contractor shall, at their own cost or as
agreed with Australia Post, implement
or modify any procedure or system as
Australia Post may require to ensure
the Contractor and their Personnel
comply with the necessary WH&S
obligations
to
Australia
Post’s
satisfaction. The WH&S Management
Page | 17
28.4
The Contractor must comply with all Australia
Post WH&S requirements including:
(a)
All
Australia
Post
policies
and
procedures that apply at the Australia
Post premises where the Contractor is
working.
(b)
The Contractor’s responsibilities set out
in the General Information for Tenderers
of the tender pack (WH&S).
Permitting Australia Post, or other
parties
deemed
appropriate
by
Australia Post, to conduct occasional
audits of the Contractor’s WH&S
Management Plan as necessary, which
may include WH&S observations of the
and
Contractor’s
employees
Subcontractors. Any costs associated
with these audits are to be borne by the
Contractor.
(c)
28.1
(a)
Plan shall comply with the requirements
of Australian Standards:
(d)
Complying with any Australia Post
direction to Contractor Personnel to
wear Personal Protective Equipment
such as approved High Visibility
Clothing and Safety Footwear. The
Contractor will be responsible for its
own supply of this safety equipment
including
maintenance/replacement
and training on its use.
28.5 The Contractor must immediately notify
Australia Post of any accident, injury to or
death of a person and/or damage to property
and/or environmental damage including any
significant “near miss” incident or dangerous
occurrence which may affect or impact on the
WH&S
Management
Plan
and
whilst
undertaking work as part of this Agreement.
This information must be recorded on the
Australia Post incident report form. The
Contractor must within 5 days of the incident
give a report to Australia Post providing
details of the incident, its cause and the
action taken by the Contractor to eliminate or
avoid the occurrence of another such
incident. The Contractor shall provide at, their
own cost any reports, or complete any
documents, required by Australia Post in
relation to the investigation of the incident.
28.6 If Australia Post notifies the Contractor that it
believes that the Contractor is:
• not satisfactorily performing the Services
in compliance with the WH&S Management
Plan; or
• not complying with Australia Post’s WH&S
policies and procedures at the Australia
Post premises where the Contractor is
working for Australia Post; or
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• is endangering the health and safety of its
employees, Australia Post’s employees,
other contractors or visitors or a
Subcontractor's
employees,
plant,
equipment or materials
(d) a period of at least ninety (90) days notice
is given (in which event there will be no
necessity to ascribe a reason and, clause
31 will have no application).
the Contractor must promptly rectify the
situation.
28.7
Australia Post may direct the Contractor to
suspend the Services until such time as the
Contractor satisfies Australia Post that it is
complying with the WH&S Management Plan
and Australia Post’s WH&S policies and
procedures. Australia Post shall not be liable
to make payment for any costs incurred as a
consequence of such suspension.
(e) a breach by the Contractor will not be
considered remedied until all costs or losses
incurred
by
Australia
Post
as
a
consequence of the breach (including those
mentioned in clause 30.3 and any
payments made to remedy a complaint by
a Customer in relation to performance of
Services) are paid to Australia Post by the
Contractor; and
28.8
29
The Contractor will indemnify Australia Post
from and against any claim, demand, loss,
liability, loss or damage arising from, or
caused by the failure of the Contractor or its
Personnel to comply with Australia Post’s
WH&S policies and procedures and/or the
Contractor’s WH&S Management Plan.
For the purposes of this clause 30.1:
(f) without limiting the meaning of “material
breach”, the Contractor will be considered
to commit a material breach of this
Agreement if the Contractor or its
Personnel:
Cooperation on Transition
29.1 The Contractor must at all times (whether prior
to or after the expiration or earlier termination
of this Agreement) co-operate in good faith, at
its cost, in the implementation of appropriate
transitional arrangements reasonably required
by Australia Post to facilitate any other Person
nominated by Australia Post providing the
Services or services similar to the Services so
as to, as far as practicable, ensure continuity
of the Services with minimal disruption to
Australia Post or Customers. Such assistance
will include assistance with training any new
Australia Post contractor prior to any change
over. The Contractor will not be entitled to any
payment from either Australia Post or any new
contractor for providing such co-operation and
assistance.
30
Termination
30.1 When a party may terminate
Either party may terminate this Agreement at
any time with immediate effect only (for the
removal of doubt, in no other way or
circumstances) by giving the other party
written notice of termination where:
(a) the other party commits or suffers an
Insolvency Event; or
(b) the other party serves an Improvement
Notice setting out the breaches of this
Agreement (not being a material breach)
and does not rectify the breach within ten
(10) Business Days of being notified to
remedy it; or
(c) the other party commits a material breach
of this Agreement; or
Page | 18
AUSTRALIA POST
(i)
breaches this Agreement in a manner
that impacts adversely on the security
of Australia Post Property; or
(ii) breaches any of clauses 11, 12, 13, 15,
22, 27, 28 and 37; or
(iii) engages in conduct which materially
and unfavourably reflects upon the
reputation or goodwill of Australia Post
or which is otherwise materially
prejudicial to Australia Post or its
Intellectual Property; or
(iv) engages in conduct that is illegal,
dishonest or unconscionable; or
(v) (or the Contractor’s Representative or, if
the Contractor is a Corporation, any of
the Contractor’s directors) is convicted
of or charged with a criminal offence; or
(vi) fails to perform the Services or conveys,
indicates or demonstrates an intention
or inability to continue to perform the
Services, for a continuous period
exceeding five (5) Business Days; or
(vii) performs the Services in a way that
does or may endanger the health
and/or safety of any Person; or
(viii) fails, on more than ten (10) days in any
rolling twelve (12) month period, to fully
satisfy all KPIs; or
(ix) suffers, on at least three (3) occasions in
any rolling twelve month period,
Australia Post to obtain Substitute
Services within the meaning in clause
30.3; or
(x) suffers, in any rolling twelve (12) month
period, Australia Post to give at least
three (3) Improvement Notices under
clause 30.1(b) or any like provision in an
antecedent agreement; or
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(xi) otherwise fails to adequately perform
its obligations under this Agreement or
conveys, indicates an unwillingness or
inability to adequately perform its
obligations under this Agreement.
(a) Australia Post may, in lieu of the notice
period required by section 30.1(d), pay the
Contractor an amount calculated in
accordance with this section.
(b) The amount payable is the gross amount
less the appropriate taxation and agreed
deductions.
30.2 Consequences of Termination
(a) Where Australia Post has terminated this
Agreement otherwise than by notice under
clause 30.1(d), it will be entitled to recover
from the Contractor (and the Contractor
indemnifies and must keep indemnified
Australia Post from and against) all loss,
damage and expense incurred or suffered
or to be incurred or suffered by Australia
Post directly or indirectly as a consequence
of that termination or any event giving rise
to such termination.
(b) Either party may, as a consequence of
termination and unless expressly otherwise
constrained by this Agreement, exercise all
available legal and equitable remedies
including but not limited to, suing for
compensation or seeking orders for a
declaration, injunctive relief or damages or
such other orders and relief as it may think
fit.
30.3 Alternative arrangements
unable to provide Service
when Contractor
(a) Where the Contractor (whether being
unwilling or unable) fails for any reason
(other than an event of Force Majeure dealt
with under clause 32) to provide all or part
of the Services strictly in accordance with
Performance
Requirements
either
temporarily or otherwise, Australia Post
may in addition to all of its other rights
under this Agreement (but is not obliged to),
without
notice,
make
alternative
arrangements for the performance of the
Services (Substitute Services).
(b) Any costs incurred by Australia Post in
remedying such failure and arranging
Substitute Services (including internal costs,
legal costs and any loss of revenue from or
compensation paid to any Customer as a
consequence of the failure) will be a
liquidated debt due by the Contractor to
Australia Post, payable on demand.
(c) Where Australia Post obtains Substitute
Services the Contractor will not be entitled
to any Contract Fee whatsoever in respect
of such Substitute Services and Australia
Post will as soon as practicable provide the
Contractor with details in writing of the
steps taken and costs incurred.
30.4 Payment in lieu of Notice
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31
Dispute Resolution
31.1 Restriction on legal proceedings
(a) Subject to paragraph (b), no party may
commence legal proceedings in relation to
any Dispute unless and until:
(i)
the dispute resolution procedures in this
clause 31 have first been followed in
respect of the Dispute;
(ii) a decision has been made by the
arbitrator in respect of the Dispute in
accordance with clause 31.5(f); and
(iii) ten (10) Business Days have elapsed
since the delivery of the arbitrator’s
decision.
(b) Should any party reasonably consider that
injunctive,
declaratory
or
other
interlocutory relief (including for specific
performance) against another party is
necessary or desirable in order to protect
or preserve its rights under this Agreement,
that party may apply to a court of
competent jurisdiction for such relief
pending the outcome of any arbitration
pursuant to clause 31.5.
31.2 Dispute Notice
In the event of a Dispute, the party disputing
the issue may give a written notice to the other
specifying the nature of the Dispute (Dispute
Notice). The Dispute Notice must be in the form
(if any) prescribed by Australia Post from time
to time.
31.3 Good faith discussions
Within ten (10) Business Days (or such other
period as agreed in writing by the parties) of
the giving of a Dispute Notice the Australia
Post Manager or his nominee and the
Contractor’s Representative must meet and
engage in good faith discussions with the
objective of resolving the Dispute by
agreement.
31.4 Termination of discussions
If after a further period of ten (10) Business
Days after the period specified in clause 31.3
the parties have not been able to resolve their
Dispute, either party may then by written
notice terminate the operation of the
procedure in clause 31.3 in relation to the
Dispute.
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31.5 Arbitration
(a) If a notice has been issued by either party
under clause 31.4, either party may submit
the Dispute to an arbitrator for arbitration
in accordance with this clause 31.5.
(i) The cost of, and incidental to, the
arbitration and the proportion in which the
parties shall pay such costs will be at the
discretion of the arbitrator.
31.6 Use of Documentation
(b) The following procedures apply to the
appointment of an arbitrator for the
purpose of arbitration proceedings under
this clause 31.5:
(i)
the parties agree to appoint an
arbitrator
from
the
Institute
of
Arbitrators and Mediators of Australia;
(ii) the parties agree to make the
appointment within five (5) Business
Days of the Dispute being submitted to
arbitration; and
(iii) if the parties do not agree on the
arbitrator to be appointed within the
period referred to in paragraph (ii), the
party seeking arbitration will request
the President of the Institute of
Arbitrators and Mediators of Australia
to appoint an arbitrator within five (5)
Business Days after that request is
made.
(c) Subject to clause 31.5(d) the arbitration is
to be conducted in accordance with and
subject to the Commercial Arbitration Act
1984 (Vic) and by executing this Agreement,
the parties acknowledge that they have
signified their agreement in writing that the
Dispute be referred to arbitration within the
meaning of that Act.
(d) The arbitrator will have no power to:
(i)
grant equitable relief;
(ii) exercise a discretion available to a
party under this Agreement without
that party’s written consent; or
(iii) set aside the exercise of a discretion
made by a party under the Agreement
without that party’s written consent.
(e) The venue of the arbitration will be in the
capital city of the State in which the
majority of Services are to be performed
unless another venue is mutually agreed
between the parties.
(f) The parties agree to request that the
arbitrator make a determination within
twenty (20) Business Days of the Dispute
being submitted for arbitration.
(g) Until the arbitrator hands down an award,
the parties are obliged to fulfil their
obligations under this Agreement.
(h) A party may be represented in respect of
the arbitration by a duly qualified legal
practitioner.
Page | 20
The parties acknowledge that the sole purpose
of any exchange of information or documents
pursuant to this clause 31 is for the resolution
of a Dispute and such information or
documents cannot be used for any other
purpose.
31.7 Confidentiality
The parties acknowledge that all matters
arising and dealt with under this clause 31 are
confidential
32
Force Majeure
32.1 Neither party is liable for delays or for nonperformance due to an event of Force Majeure,
subject to compliance with the obligations in
this clause 32.
32.2 Where a party is unable, wholly or in part, by
reason of an event of Force Majeure, to carry
out any obligation under this Agreement, that
obligation is suspended so far as it is affected
by the continuance of that event of Force
Majeure provided always that the party
affected:
(a) gives to the other party prompt notice of
that event of Force Majeure and the
affected obligation with reasonably full
particulars and, in so far as known, the
probable extent to which it will be unable to
perform or be delayed in performing that
obligation;
(b) uses all reasonable endeavours to remove
that event of Force Majeure as quickly as
possible; and
(c) complies fully with clause 32.4, if applicable.
32.3 Each party will use all reasonable endeavours
to continue to perform its obligations for the
duration of the event of Force Majeure.
32.4 Immediately on the occurrence of an event of
Force Majeure, the parties must meet in good
faith to discuss the situation and endeavour to
achieve a mutually satisfactory resolution of
the problem. A satisfactory resolution may
include the carrying out of the Services on
agreed terms in whole or in part by Australia
Post personnel or personnel nominated by
Australia Post or the employment by Australia
Post of some or all of the Contractor’s
Personnel and/or the use by Australia Post, its
employees or personnel nominated by it of
materials, parts, tools, instruments and
equipment owned or used by the Contractor in
or for the provision of the Services. The
Contractor agrees to facilitate any such
resolution.
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32.5 An obligation to pay money, which is due and
payable is not excused by Force Majeure.
33.3.2 In the event of a Registration Change or
Registration Failure, Australia Post:
32.6 If an event of Force Majeure prevents the
Contractor from performing its obligations
under this Agreement for a period in excess of
thirty (30) continuous days, Australia Post may
immediately terminate this Agreement without
cause upon written notice to the Contractor.
(a) May at its sole discretion review the amounts
paid or payable to the Contractor under this
Agreement to take into consideration the
change in the Contractor’s GST registration
status (including the Contractor’s ability to
claim any available input tax credits);
32.7 For the purposes of this clause 32:
(b) May require the Contractor to produce
evidence to confirm the change in its GST
registration status;
(a) “Force Majeure” means any cause which is
not reasonably within the control of the
party affected and includes:
(i)
an act of God;
(ii) strike, lockout, industrial action or other
interference with work;
(iii) war declared or undeclared, blockade,
disturbance, lightning, fire, earthquake,
storm, flood explosion; and
(iv) governmental or quasi-governmental
restraint,
expropriation,
prohibition,
intervention, direction or embargo;
(b) “all reasonable endeavours” does not
require the settlement of strikes, lockout or
other labour disputes, or claims or
demands by any government or quasigovernmental authority on terms contrary
to the wishes of the party affected.
33
Goods and Services Tax (“GST”)
33.1 Interpretation
(c) Will not be liable for any GST amount not
disclosed by the Contractor to the Australia
Taxation Office (“ATO”) whether in the
required form or otherwise;
(d) Will not be liable for any GST amount not paid
by the Contractor to the ATO;
(e) Will not be liable for any penalties and/or
general interest charge that may arise
because of an undisclosed or unpaid GST
amount by the Contractor;
(f) Will not be liable for any other loss or expense
or liability that arises as a result of the
change in the Contractor’s GST registration
status;
(g) May require the Contractor to issue a tax
invoice in relation to taxable supplies made
during the period the Contractor was required
to be registered for GST.
Unless the contrary intention appears, words or
expressions used in this clause that are defined in
the A New Tax System (Goods and Services Tax)
Act 1999 (Cth) (“GST Act”) have that same
meaning.
33.3.3 The Contractor indemnifies and must keep
indemnified Australia Post against all losses,
liabilities, claims and expenses which
Australia Post may suffer, incur or be liable
for as a result of or arising from any
Registration Change or Registration Failure.
33.2 GST-inclusive Amounts
33.4 Adjustment Events
The parties agree and acknowledge that all
pricing, consideration and amounts otherwise
payable under this Agreement include any
applicable GST (unless GST-exclusive amounts
have been expressly specified).
If in relation to a supply made under this
Agreement an adjustment event occurs that gives
rise to an adjustment, then the price of that
supply, including any GST, will alter accordingly
and where necessary a payment will be made to
reflect the price adjustment.
33.3 Contract
Fee
Adjustment
registration status
-
GST
33.5 Recipient Created Tax Invoice
33.3.1 Where a Contractor:
(i) Changes its GST registration status by
either becoming registered for GST during the
Term or ceasing to be registered for GST during
the Term (“Registration Change”); or
(ii) Is required to be registered under Part 2-5
of the GST Act during any part of the Term but
is not registered or has stated its intention to
become registered in its Tender but does not
become registered within 90 days of the
Commencement Date (“Registration Failure”);
Australia Post will prepare Recipient Created Tax
Invoices (RCTI’s) on the Contractor’s behalf. This
clause is intended to be the “RCTI Agreement”
between the Contractor and Australia Post and
the Contractor and Australia Post agree that:
(a) this clause applies to all supplies
made by the Contractor to
Australia
Post
under
this
Agreement;
(b) this RCTI Agreement
from the earlier of:
the Contractor must immediately inform
Australia Post of the Registration Change or
Registration Failure.
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AUSTRALIA POST
(i)
or
applies
the Commencement Date;
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(ii) if either party is not
registered for GST at the
Commencement Date, the date
when that unregistered party
becomes registered for GST;
(c)
(iii) the Contractor’s dealings
with
Australia
Post
are
terminated or expire.
33.6 Non-monetary consideration
If non-monetary consideration is given for a
taxable supply under this Agreement and the
GST-inclusive market value of that consideration
is not clearly identifiable, the parties must discuss
and mutually agree on the GST-inclusive market
value of that non-monetary consideration using
GSTR 2001/6 as a guide.
Australia Post will:
(i) issue the original or a copy
of the RCTI to the Contractor
within twenty-eight (28) days of
determining the value of a
taxable
supply
by
the
Contractor;
33.7 Entitlement to input tax credits
acquisitions made from third parties
(ii) issue the original or a copy
of an adjustment note to the
Contractor for any adjustments
made to a supply, within twentyeight
(28)
days
of
that
adjustment;
If Australia Post is required to pay, reimburse or
contribute to an amount paid or payable by the
Contractor in respect of an acquisition from a
third party, including any amount stated in
Tender Form of the Tender documents that forms
part of the Contract Fee submitted by a
Contractor, the GST-exclusive amount for
payment, reimbursement or contribution shall be
the acquisition price paid by the Contractor, less
any input tax credit it is entitled to claim.
(iii) reasonably comply with its
obligations under the GST Law;
(iv) notify the Contractor if it
ceases to be registered for GST;
(v) not issue a document that
would otherwise be a RCTI, on or
after the date when it has failed
to
comply
with
any
requirements of the GST Law;
(d) The Contractor will:
(i) not issue tax invoices or
adjustment notes to Australia
Post for the supplies covered by
this RCTI Agreement;
33.8 Survival
All Sub-clauses of this Clause 33 survive the
execution and delivery of this Agreement and the
completion of the transactions contemplated by
it.
33A
Australian Business Number “ABN”
If the Contractor is entitled to obtain an
Australian Business Number (“ABN”)
under the A New Tax System (Australian
Business Number) Act 1999 (Cth), the
Contractor:
(ii) immediately
notify
Australia Post if it ceases to be
registered for GST purposes;
(a) agrees to obtain an ABN and
provide that ABN to Australia Post;
and
(iii) indemnify
and
keep
indemnified Australia Post for
any loss, cost or liability for GST
and penalty that may arise as a
result of the Contractor’s failure
to notify Australia Post that it
has ceased to be registered for
GST purposes;
(b) must ensure that it:
(i) continues to have an ABN during
the Term;
(ii) quotes its ABN on each invoice it
provides to the other party; and
(iii) advises Australia Post in writing
immediately if its ABN changes
or its ABN is cancelled; and
(e) Both parties acknowledge that
they are registered for GST at the
date when this RCTI Agreement
applies, stated in clause 33.5 (b)
above;
(f)
(c)
indemnifies Australia Post for any loss or
damage suffered Australia Post or any tax,
charge, fine, penalty or other impost which
Australia Post incurs or becomes liable to
pay, as a result of its breach of any law
relating to ABNs or GST.
This RCTI Agreement will terminate
immediately if:
(i) either party ceases to be
registered for GST;
(ii) either party fails to comply
with the terms of this RCTI
Agreement; or
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for
34
Conflict of Interest
34.1 The Contractor must not, concurrently with
performing Services, carry any goods other
than Articles nor perform any other activities of
like or similar nature to Services, which would in
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SAMPLE CONTRACT
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the reasonable opinion of Australia Post
interfere with the Performance Requirements.
do any of the following without the prior written
permission of Australia Post (which may be
granted or withheld in its absolute discretion):
34.2 During the Term the Contractor and its
Personnel must:
(f) approach, solicit or contact any Restricted
Person with the purpose of enticing such
Restricted Person to cease doing business
with Australia Post or to reduce the amount
of business the Restricted Person would
normally do with Australia Post or to use
any mail service other than that provided
by Australia Post; or
(a) comply in all respects with Our Ethics and
the Supplier Code of Conduct;
(b) not, while performing Services, whether on
its own account or in any other capacity,
directly or indirectly engage in any other
business pursuits or employment if, in the
reasonable opinion of Australia Post, the
same
would
adversely
affect
the
compliance by the Contractor with its
obligations under this Agreement; and
(c) obtain the prior written permission of
Australia Post (which may be granted or
withheld in its absolute discretion) to
provide or promote whether on its own
account or in any other capacity services
similar to the Services to or for any
competitor of Australia Post during the
Term. In this clause 34, “competitor” means
any Person that competes with Australia
Post including mere competition in
peripheral products or services.
35
(g) accept from or perform for a Restricted
Person any business of like or similar nature
to Services.
35.3 The Contractor acknowledges that each of the
prohibitions and restrictions in this clause 35:
(a) must be read and construed and will have
effect as a separate, severable and
independent prohibition or restriction and
will be enforceable accordingly;
(b) is reasonable as to period, territorial
limitation and subject matter; and
(c) confers a benefit upon Australia Post, which
is no more than that is reasonably required
by Australia Post for the maintenance and
protection of the goodwill of its business.
Restraint
35.1 For the purposes of this clause 35:
(a) “Effective Date” means the date of
termination of this Agreement, whether by
expiration of the Term or otherwise;
(b) “Restricted Person” means any customer
of Australia Post or any person who uses
the Services provided by the Contractor
pursuant to this Agreement.
35.2 For the sole purpose of protecting the business
interests of Australia Post, the Contractor
undertakes to Australia Post that it will not,
and will ensure that each of its Directors and
Personnel will not during the Term and for a
period of:
(a) six (6) months from the Effective Date; but if
for any reason this period is unenforceable,
then
(b) three (3) months from the Effective Date;
within the Delivery Area or any other area in
which the Contractor has performed Services
within six (6) months prior to the Effective Date,
and whether:
35.4 If any prohibition or restriction (or any part of
them) contained in this clause 35 is held or
found to be void, invalid or otherwise
unenforceable, it will be deemed to be severed
to the extent that it is void or to the extent of
voidability, invalidity or unenforceability and
the remainder of the prohibitions or restrictions
will remain in full force and effect.
36
Australia Post Identification
36.1 The Contractor must ensure that its Personnel
carry and display such identification from time
to time required and provided by Australia Post
at all times when performing the Services and
maintain such identification secure and in good
order and condition and immediately report
any loss or destruction to Australia Post.
36.2 Without limiting clause 36.1, for better
confirming identification, the Contractor agrees
that Australia Post may from time to time
require:
(a) the Contractor’s Personnel to wear work
attire; and/or
(c) on their own account;
(b) Vehicles to display signage;
(d) in partnership or jointly with or on behalf of
any Person;
which has been approved by Australia Post,
and the Contractor will at its own cost acquire
and ensure the same is at all times maintained
in good order and condition and used only in
performing the Services and as directed by
Australia Post from time to time.
(e) as beneficiary, trustee, principal, agent,
member, shareholder, unit holder, joint
venture participant, syndicate participant,
financier, employee, consultant, director,
manager or in any other capacity;
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37
Privacy of Personal Information
authorised personnel have access to the
Personal Information;
37.1 The Contractor acknowledges that Australia
Post is bound by the provisions of the Privacy
Act 1988 (Commonwealth) and the Privacy Act
(Public
Sector)
Amendment
Act
2001(Commonwealth) in relation to Personal
Information collected or held by Australia Post.
In relation to Personal Information held by the
Contractor in connection with this Agreement,
the Contractor must:
(f) to immediately notify Australia Post if the
Contractor becomes aware of a breach of
any of clauses 37.1 and 37.2(a) to (e)
(inclusive);
(g) to notify Australia Post immediately of any
complaint alleging an interference with the
privacy of an individual by the Contractor
or its Personnel; and
(a) observe the provisions of the Privacy Act
1988 and the Australia Post Privacy Policy;
(h) to co-operate with all reasonable requests
or directions of Australia Post arising
directly from, or in connection with, the
exercise of the functions either by Australia
Post or of the Privacy Commissioner under
the Privacy Act 1988 or otherwise, including
but not limited to:
(b) not do anything which may result in
Australia Post being in breach of any of
Privacy Laws or its legal obligations; and
(c) not do anything, which if done by Australia
Post would constitute a breach of the
Privacy Laws or the Australia Post Privacy
Policy.
(i)
37.2 Protection of Personal Information
Without limiting clause 37.1, the Contractor
agrees in respect of Personal Information held
by it in connection with this Agreement:
(a) to use Personal Information only for the
purposes of fulfilling its obligations under
this Agreement;
(ii) the handling of any complaint alleging
an interference with the privacy of an
individual.
37.3 Contractor's Indemnity
The Contractor agrees to indemnify and keep
indemnified Australia Post against, and must
pay Australia Post on demand the amount of,
all losses, liabilities, costs (including legal costs)
expenses and damages incurred or arising in
connection with any breach of its obligations
under this clause or any of its officers,
employees,
agents,
advisers,
auditors,
consultants or third parties. This indemnity is a
continuing obligation, independent from the
other obligations of the Contractor under this
Agreement and continues after this Agreement
ends. It is not necessary for Australia Post to
incur expense or make payment before
enforcing this indemnity.
(b) unless required by law, not to disclose
Personal Information without the written
authority of Australia Post except for the
purpose of fulfilling its obligations under
this Agreement. The Contractor must
immediately notify Australia Post where it
becomes aware that a disclosure of
Personal Information may be required by
law;
(c) not to transfer Personal Information outside
Australia, or allow parties outside Australia
to have access to it, without the prior
written approval of Australia Post;
(d) to ensure that all Personnel requiring
access to Personal Information:
(i)
undertake not to access, use, disclose
or retain Personal Information except in
the performance of their duties in
connection
with
the
Contractor's
provision of Services under this
Agreement; and
(ii) are informed that failure to comply with
this
undertaking
may
lead
the
Contractor to take disciplinary action
against that Personnel;
(e) to ensure that Personal Information held in
connection
with
this
Agreement
is
protected against loss, and against
unauthorised access, use, modification,
disclosure or other misuse and that only
Page | 24
the issuing of any guideline concerning
the handling of Personal Information;
and
38
Set Offs
38.1 Australia Post may deduct from moneys
otherwise due or which may become due to the
Contractor on any account whatsoever, any
debt, charge or amount due (contingently or
otherwise) or claimed to be due from the
Contractor to Australia Post under this
Agreement or otherwise or a bona fide
estimate of any damages payable by the
Contractor to Australia Post in connection with
this Agreement or otherwise.
For the
avoidance of doubt, this means that:
(a) where the Contractor performs services
under other contracts with Australia Post,
including but not limited to other mail
contracts (“Other Contracts”) and has
defaulted in its obligations under any Other
Contracts, any amount owing to Australia
Post under the Other Contract may be
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SAMPLE CONTRACT
VERSION 1 2013
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deducted from the Contract Fee due to the
Contractor under this Agreement; and
(b) where the Contractor has defaulted in its
obligations under this Agreement, any
amounts owing by the Contractor to
Australia Post in connection with this
Agreement may be deducted from any fee
payable by Australia Post to the Contractor
under any Other Contract.
39
(including by expiry of the term) of this
Agreement.
45
45.1 Any demand, notice, consent, approval or other
communication under this Agreement must be:
(a) in legible writing, in English, and addressed
to the intended recipient; and
(b) signed by the sender (if an individual) or by
an authorised representative of the sender;
and
Costs and Expenses
39.1 The parties will pay their own costs and
expenses arising out of the preparation,
negotiation and execution of this Agreement.
(c) given to the addressee by:
(i)
39.2 The Contractor indemnifies and must keep
indemnified, Australia Post in respect of all
costs (including in the case of legal costs, costs
on an indemnity basis) relating to any default
by the Contractor under this Agreement, or
failure to perform any obligations required by
this Agreement to be performed on the part of
the Contractor.
40
Notices
(ii) post to, or leaving at, that party’s
address for service; or
(iii) sending by fax to the party’s address
for service; and
(d) is regarded as being given by the sender
and received by the addressee:
Severance
(i)
40.1 If anything in this Agreement is unenforceable
(illegal or void) then it is severed leaving the
rest of this Agreement remaining in force.
41
Time of the Essence
Entire Agreement
42.1 This Agreement constitutes the entire
Agreement between the parties and will take
effect according to its terms notwithstanding
any prior agreement in conflict or variance with
it or any correspondence or documents
relating to its subject matter which may have
passed between the parties before its
execution.
43
43.2 Notwithstanding the requirements set out in
clause 43.1 above Australia Post may from
time to time propose variations to the
Agreement and give notice to the Contractor
with particulars of the proposed variations. If
Australia Post does not receive a response
within 90 days to the proposed variations the
variations will be deemed to have been
accepted by the Contractor and the variations
will take effect upon expiration of the 90 days
notice period.
44
(iii) if by fax, when legibly received by the
addressee, with receipt being evidenced
by a report generated by the sender’s
machine
confirming
uninterrupted
transmission;
but if the delivery or receipt occurs on a day
which is not a Business Day or at a time
after 5.00pm (both the day and time being
in the place of receipt) it is regarded as
having been received at 9.00am on the next
following Business Day.
Variation and Waiver
43.1 An amendment or variation to this Agreement
is not effective unless in writing and signed by
both parties, subject to clause 43.2 below. A
waiver is not effective unless it is in writing.
Survival of Obligations
44.1 Clauses 7, 15, 19, 24, 27, 29, 35, 37 and this
clause 44 survive determination for any reason
Page | 25
if by delivery in person or by being left
at the party’s address for service, upon
delivery;
(ii) if by post, two (2) Business Days from
and including the date of posting by
ordinary prepaid post in respect of an
address
for
service
within
the
Commonwealth of Australia and twenty
one (21) Business Days in respect of
other any address; or
41.1 Time is of the essence in this Agreement.
42
delivery in person (including in the case
of the Contractor, to the Contractor’s
Representative); or
45.2 For the purposes of this clause 45, a party’s
address for service will be:
(a) if paragraph (b) does not apply, the party’s
postal address or fax number (if any) set
out in the Reference Table; or
(b) if that party has notified in writing the
sender of a change of postal address or
changed fax number, the address or fax
number last so notified,
and, if the party is a Corporation, will also
include its registered office.
46
Governing Law
46.1 This Agreement shall be governed by and
construed in accordance with laws in force in
the State in which the Agreement is entered
AUSTRALIA POST
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
and the parties submit to the non-exclusive
jurisdiction of the Courts of that State.
47
No Merger
47.1 The rights and obligations of the parties will
not merge on the assignment, termination or
expiration of this Agreement but will survive
and continue to have full force and effect.
48
Access to Documents
48.1 In this clause, ‘document’ and ‘Commonwealth
contract’ have the same meaning as in the
Freedom of Information Act 1982 (Cth).
48.2 The Contractor acknowledges that
Agreement is a Commonwealth contract.
this
48.3 Where Australia Post has received a request
for access to a document created by, or in
possession of, the Contractor or any
subcontractor that relates to the performance
of this Agreement (and not to the entry into the
Agreement), Australia Post may at any time by
written notice require the Contractor to provide
the document to Australia Post and the
Contractor must, at no additional cost to
Australia Post, promptly comply with the
notice.
48.4 The Contractor must include this in any
subcontract relating to the performance of
Services under this Agreement that will enable
the Contractor to comply with its obligations
under this clause 48.
EXECUTED AS AN AGREEMENT
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AUSTRALIA POST
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
SCHEDULE OF GENERAL SPECIFICATIONS
S1. Minimum Standards and
KPIs
and use best endeavours to deliver to;
(iii)
residential Delivery Points by 3
p.m., and
The Performance Requirements are the minimum
standards required by Australia Post in performance
of Services by the Contractor. This Agreement
provides
serious
consequences,
including
termination, for non-compliance.
(iv)
(d)
deliver all Articles for delivery within
the Delivery Area at the address
specified to a box or receptacle for
that purpose or as otherwise directed
by Australia Post (and any failure to
correctly
so
deliver
shall
be
considered a “mis-delivery”);
(e)
maintain and keep current a list of the
names and addressees in respect of
each Delivery Point within the Delivery
Area including any Customer List;
(f)
comply with any other delivery and/or
pick-up arrangement as advised by
Australia Post including electronic
Data capture (and, for the purpose of
this Schedule, an Article will not be
considered delivered where the
Contractor fails to obtain delivery
confirmation
and/or
identifying
information from an addressee where
that confirmation or information is
required in any medium either by the
Customer or Australia Post);
(g)
where required to use Equipment for
purposes of electronic Data capture,
scan Articles for delivery prior to
departing the Australia Post facility
(and prior to 10am unless specifically
in writing directed otherwise) and
upload Data collected on completion
of the day’s deliveries;
(h)
redirect and “card” Articles in
accordance with advised procedures
or as required from time to time by
Australia Post;
(i)
where required, alight from any
Vehicle for the purpose of effecting
delivery;
(j)
where required by Australia Post,
separate Articles addressed care of a
Post Office or a Post Office Box from
other Articles, and deliver those
Articles to the relevant Post Office if
within the Delivery Area on the day of
delivery by the time directed by the
Australia Post Manager;
(k)
where a charge is payable by the
addressee on the delivery of an
Article, not (unless otherwise directed
Compliance with the Performance Requirements will
be measured (non-exhaustively) by the following
KPIs:
Service Component
KPI
Timely delivery of
Articles
100% delivery upon day
of receipt
Accurate delivery of
Articles
No more than one misdelivery per day
100% accuracy in daily
uploads at the
completion of
performing the Services
Accurate and timely
Data uploads from
scanning devices in
accordance with
Specifications
Capturing full name
and signature upon
delivery of signature
required Articles
Customer complaints
received (written or
oral)
100% captured correctly
No more than one (1) per
month
S2. Delivery of Articles
In the delivery (including collection) of Articles, the
Contractor must:
(a)
(b)
(c)
Page | 27
at all times comply with the Act, any
regulations made under the Act, the
APT&C, and all Relevant Laws and
Relevant Standards as appropriate;
on each day the Services are to be
performed, sort all Articles into the
Contractor’s delivery sequence prior
to the commencement of delivery;
deliver all Articles for delivery on the
same day as received no earlier than;
(i)
7a.m.
on
that
day
residential premises, and
(ii)
any such time on that day
before businesses or other
non-residential premises have
opened for the day,
to
AUSTRALIA POST
businesses and other nonresidential Delivery Points by
11 a.m.
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
by Australia Post) deliver the Article
without first collecting that charge,
and account for all such charges
received from or on behalf of an
addressee as required by Australia
Post;
(l)
where the Agreement provides for a
Service
between
a
Post
Office/Licensed Post Office and a
railway station, airport or wharf,
collect and deliver Articles at the
railway station or railway van, airport
or wharf as directed by Australia Post;
(m)
when required by Australia Post and
for no extra charge:
(i)
(ii)
(n)
(o)
Page | 28
Contractor will not be able to return
each such undelivered Article as
required by this paragraph then, as
soon as practicable after the
Contractor becomes aware of this, the
Contractor must contact the Australia
Post Manager (including outside
business hours if required to comply
with this paragraph) to implement
arrangements
directed
by
the
Australia Post Manager for the return
and/or safekeeping of each such
undelivered Article. The Contractor
agrees to return any such undelivered
Article to an Australia Post office or
deal with the Article as otherwise
directed by the Australia Post
Manager;
deliver
all
telephone
directories and no more than
ten (10) different sets of
unaddressed mail per week to
Delivery Points within the
Delivery Area.
For the
avoidance of doubt, a “set” of
unaddressed
mail
can
comprise of any number of
Articles provided that each
Article in the set is the same
and does not include a name
or specific address for delivery
but is to be delivered to a
particular Delivery Area;
collect Articles from Delivery
Points in a Delivery Area from
any
box
or
receptacle
provided for that purpose or
as otherwise directed by
Australia Post;
(iii)
clear any Post-box located in
the Delivery Area; and
(iv)
deliver the same day all
Articles
collected
under
paragraphs (ii) and (iii) to
Australia Post;
(p)
comply with any reasonable direction
and procedure as advised by
Australia Post and in particular
comply with all written specific
Customer
pick-up
and
delivery
instructions
unless
specifically
directed otherwise by the Australia
Post Manager in any particular
instance;
(q)
comply absolutely with and not
deviate
from
all
Performance
Requirements without the written
permission of Australia Post.
S3. Security of and Dealing
with Articles
(a)
before delivering an Article which
requires a signature on delivery,
obtain in respect of each such Article
on the approved delivery sheet or
electronic Data capture device any
barcode details and signature and full
name of the addressee as directed by
Australia Post and provide such Data
to Australia Post on the day of
receipt;
if, for whatever reason, it is unable to
deliver an Article on the day of receipt
then, before close of business on the
day of receipt, return each such
undelivered Article to the Australia
Post Manager or otherwise as the
Australia Post Manager directs. If the
AUSTRALIA POST
(b)
The Contractor must ensure that all
Articles are safely carried and must
protect all Articles from weather, dust,
damage, loss or theft. In particular, if
consignments are carried:
(i)
in a motor Vehicle (other than
a motorcycle), the Contractor
must ensure that the Vehicle is
fully enclosed and securely
lockable and locked when the
Vehicle is unattended; and if
(ii)
by motorcycle or bicycle, the
Contractor must ensure that
the motorcycle or bicycle is
equipped
with
a
secure
weatherproof container and
wherever practicable, ensure
that the motorcycle or bicycle
is not left unattended or out of
the Contractor’s sight.
The Contractor must examine all
Articles being carried and if it appears
that any seal, fastening or bag has
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
been tampered with, the Contractor
must inform Australia Post of this
immediately.
S4. Times for Performing
Services
The Contractor acknowledges that Services may be
required to be provided (without further cost to
Australia Post in addition to the Contract Fee) as
from time to time directed by Australia Post
including:
(a)
(b)
(c)
(save only to the extent otherwise specifically
directed by the Australia Post Manager in any
particular instance) to ensure consistent and
seamless performance of the Services.
S7. Communication with
Customers
For the purposes of ensuring that Australia Post can
communicate effectively and in a timely manner with
its Customers, the Contractor must immediately
inform the Australia Post Manager of:
during peak periods (for example in
December and prior to Mother’s Day
in each year):
(i)
7 days per week; and
(ii)
24 hours per day;
on public or otherwise gazetted
holidays or, if a public holiday is taken
by the Contractor with the approval or
direction of the Australia Post
Manager, on the next following
Business Day even if not a specified
working day under the relevant
Specification
applying
to
the
Contractor;
on the Australia Post Authorised
Holiday (being the day nominated by
Australia Post each year on which its
employees are granted an additional
day of holiday leave).
(a)
any delays in performing Services; or
(b)
any Vehicle breakdown; or
(c)
heavy loads, extra bags or extra
pickup or Delivery Points; or
(d)
any problems at pickup or Delivery
Points; or
(e)
any changes to any Services
requested by any Customer; or
(f)
any changes made by a Customer in
its procedures including changes in
Customer representatives dealing
with the Contractor; or
(g)
any other relevant matters.
S8. Personnel
The Contractor must ensure that all Personnel:
(a)
are experienced, prompt, efficient,
professional, courteous and helpful in
all dealings with Customers, members
of
the
public,
Australia
Post
employees, licensees, agents and
other Australia Post contractors;
(b)
provide the Services within the time
frame agreed with the Customer by
Australia Post and work the hours
required to meet the Performance
Requirements;
(c)
carry and be contactable by
communication equipment at all times
while performing Services;
(d)
do not engage in any unlawful
discrimination against or harassment
of any Person;
(e)
are
always
neat,
tidy
and
appropriately attired (in approved
work attire if so required by Australia
Post) and maintain a high standard of
personal hygiene and presentation
generally
consistent
with
and
appropriate to the professional
standard of service expected by
Customers;
S5. Material Handling Aids
Tools of Trade will include any material handling
equipment (such as hand trolleys, lifting aids [eg.
plastic tubs], etc) reasonably required or directed by
the Australia Post Manager for the purpose of
assisting the Contractor’s Personnel in providing the
Services in accordance with all applicable Work
Health and Safety requirements. Prior to the
Contractor’s Personnel using any items of material
handling equipment on Australia Post’s premises,
the Contractor must have each item checked and
approved by the Australia Post Manager or its
delegate to ensure that it meets operational
requirements. The Contractor is fully responsible for
ensuring that all Tools of Trade are safe, fit for
purpose and adequately maintained.
S6. Customer Instructions
The Contractor must note specific pick up and
delivery instructions (eg enter via side entrance) and
ensure that all such instructions are incorporated
into the Contractor’s system and followed implicitly
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AUSTRALIA POST
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
(f)
(g)
display any identification provided by
Australia Post which must be visible at
all times while the Personnel is on site
or providing the Services;
wear security passes in Australia Post
premises
where
Australia
Post
requires the passes to be worn;
(h)
do not engage in any conduct which
would result in a lack of ability or
suitability to provide the Services
and/or adversely affect the goodwill
and/or reputation of Australia Post;
(i)
accurately and promptly complete all
paperwork required in respect of the
Services; and
(j)
without cost to Australia Post, attend
when requested, briefing sessions and
“safety talks” conducted by or on
behalf
of
Australia
Post
and
participate
in
any
emergency
evacuation
drills
or
similar
procedures.
S10. Vehicles
The Contractor warrants that, unless otherwise
agreed in writing by Australia Post, all Vehicles will:
S9. Training
(a)
(b)
The Contractor will provide, at its cost,
all necessary training for all Personnel
to ensure that the Services are
performed in accordance with the
Performance Requirements and best
industry practice.
Without limiting the requirements of
paragraph (a) the Contractor will be
responsible
for
conducting
or
arranging training sessions at its own
cost prior to the commencement of
new Personnel in the provision of
Services and as further required
during the Term to take account of
any
variations
in
Performance
Requirements or otherwise, and must
ensure such training includes:
(i)
Page | 30
an overview of this Agreement
and
the
Contractor's
obligations in respect of
Services under this Agreement
including Customer service
requirements;
(ii)
the details of the engagement
or arrangement between the
Contractor
and
such
Personnel;
(iii)
for any Personnel who drive
Vehicles,
general
driver
induction; and
(iv)
the Australia Post contractor
induction program.
AUSTRALIA POST
(a)
be presented to the Australia Post
Manager for inspection to determine
that the vehicle is compliant with the
terms of this clause S10 prior to being
used in the performance of the
Services. Where
the Contractor
intends replacing or changing the
Vehicles in its fleet, the proposed new
Vehicle/s must first be approved by
Australia Post prior to the Contractor
procuring them;
(b)
be not more than five years old at the
Commencement
Date
unless
otherwise
specified
in
the
Specifications and is capable of being
secured;
(c)
be of sufficient capacity
otherwise
suitable
for
performance of the Services;
(d)
be locked at all times
performance
of
Services
unattended;
(e)
be equipped with a mobile telephone
or other approved communication
device, which must be on at all times
while
the
Services
are
being
performed;
(f)
be in a safe and good condition, clean
(both
outside
and
inside
if
appropriate) and free of dents,
damage, rust and signage or marks
reasonably deemed by the Australia
Post Manager to be offensive or
inappropriate or damaging to the
Goodwill or the image or reputation of
Australia Post;
(g)
receive immediate professional repair
of any damage sustained as soon as
possible thereafter or a replacement
Vehicle used;
(h)
comply with the Relevant Laws,
Relevant
Standards
and
the
requirements
of
all
Authorities,
including all special registration and
Vehicle identification requirements;
and, in respect of Vehicles that are
not motor cycles, will:
(i)
and
the
during
when
be equipped with a trolley and
an operative fire extinguisher
(if a fire extinguisher is
specified as being required in
the Mail Service Specifications
of the tender documentation
provided to the Contractor by
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
Australia Post prior to entry
into this Agreement) of at least
1.5kg DCP capacity or other
size as specified in the Mail
Service Specifications and
complying
with
Relevant
Standards and Relevant Laws;
(i)
display such signage (if any) as
required by clause 36.2(b); and
(j)
be white in colour, unless specifically
agreed otherwise in writing by the
Australia Post Manager.
not display any other signage or
advertising, unless specifically agreed
otherwise in writing by Australia Post.
(k)
will be performed) and a Contingency Plan
(demonstrating how the Contractor will deal with
disruptions that may occur to its “normal” daily
arrangements).
Each such plan must be in writing and address as a
minimum the following issues respectively:
(a)
S11. Reporting
(a)
(b)
(c)
The Contractor will provide to
Australia Post Data and other
information regarding performance of
the Services on a daily basis in a
medium and form and in such detail
as Australia Post may from time to
time require in order for Australia Post
to correctly invoice its Customers.
The Contractor must advise Australia
Post immediately of any noncompliance with any Performance
Requirements including any time
requirements
attaching
to
any
particular
task
or
tasks.
The
Contractor must provide a written
summary of each incident of noncompliance within 24 hours of
occurrence.
The Contractor must make available
its Contractor’s Representative to
meet with Australia Post at least
monthly (or such other interval as
Australia
Post
may
reasonably
require) to review the Contractor's
performance of the Services and the
Contractor’s compliance with the
WH&S Management Plan.
S12. Operational and
Contingency Plans
In order to demonstrate that the Contractor will be
able to satisfactorily perform its obligations under
the Agreement throughout the Term, the Contractor
must, prior to commencing performing Services
under this Agreement, and again as often as
required
to
accommodate
any
changed
circumstances, provide to Australia Post, an
Operational Plan (demonstrating how the Services
Page | 31
AUSTRALIA POST
(b)
The Operational Plan must set out:
(i)
the number and nature of the
runs or rounds necessary in
performance of the Services;
(ii)
the number of Contractor’s
Personnel and hours proposed
to be engaged in performance
of the Services;
(iii)
whether
the
Contractor’s
Personnel will be/are engaged
as
employees
or
subcontractors;
(iv)
the estimated commencement
and finishing times for all
Contractor’s
Personnel for
each shift; and
(v)
The number and type of
Vehicles to be used in
performance of the Services.
The Contingency Plan must set out:
(i)
the arrangements that will be
in place to deal with any
temporary
inability
of
Contractor’s
Personnel
to
perform the Services whether
due to illness, incapacity or
any other reason;
(ii)
the arrangements that will be
in place to accommodate
unavailable
Vehicles,
Equipment or Tools of Trade
due
to
breakdown
or
maintenance of any Vehicles,
Equipment or Tools of Trade;
(iii)
the arrangements that will be
in place to accommodate
periods of increased demand
for Services during peak
periods;
(iv)
how
relevant
WH&S
information and training will
be provided to those Personnel
the Contractor may engage to
perform the Services during
any contingency period.
SAMPLE CONTRACT
VERSION 1 2013
Mail Contractor Agreement
S13. Supplier Code of Conduct
that builds good relations and achieves a positive
impact.
For the purposes of this schedule S.13 the term
‘Supplier’ shall have the same meaning as
‘Contractor’.
Impact on Environment
Code of Conduct
Suppliers are expected to:
Australia Post takes care in selecting suppliers of
goods and services and expects them to operate to
recognised national and/or international standards
and appropriate codes of practice.
While our
suppliers are independent entities, their business
practises and actions may impact upon Australia
Post’s reputation. For this reason our suppliers are
expected to work to the following ethical, social and
environmental standards of conduct:
• have an environmental management plan which
takes responsibility for goods and services
throughout their lifecycle and minimises the impact
of activities on the environment.
Suppliers are expected to:
Suppliers are expected to:
comply with all local and national laws and
regulations on bribery, corruption and prohibited
business practises,
•
conduct business in an ethical, fair and courteous
manner,
•
be able to report on social, ethical and
environmental performance,
•
promote timely and balanced disclosure of
material matters concerning the goods or
services provided by the company to Australia
Post,
•
• conduct their business operations in a way that
protects and sustains the environment,
Risk Management
Corporate Governance and Ethical Business
Practices
•
• comply with all relevant local and national laws
and regulations relating to the environment,
adhere to acceptable business practises with
their own suppliers, including providing for timely
payment and reasonable contractual conditions.
• have a risk management framework which
incorporates social, ethical and environmental risks
into their risk management processes,
• have a business continuity plan to minimise
business impacts in the event of major disruption
including an emergency response plan to minimise
harm to employees, the local community and
environment in the event of a site disaster
__________________________________________
____
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END OF DOCUMENT.
Management Practices which Respect the Rights
of Employees and Local Community
Suppliers are expected to:
• demonstrate a commitment to human rights and
fair employment practises in accordance with
existing international standards such as the UN
Universal Declaration of Human Rights, the
International Covenant on Civil and Political Rights,
the ILO Declaration on Fundamental Rights at Work,
and the UN Convention on the Rights of the Child,
• provide a safe and healthy workplace for all
employees,
• provide a workplace that is free of discrimination,
harassment or bullying,
• show responsibility to the local communities in
which they operate by conducting business in a way
Page | 32
AUSTRALIA POST
SAMPLE CONTRACT
VERSION 1 2013