Panel Contract between Brisbane City Council and {insert name of Contractor}
for the provision of {insert title of Goods and Services} - Contract No. {insert no.}
DATED: DAY OF20
BRISBANE CITY COUNCIL
AND
{INSERT NAME OF CONTRACTOR}
ACN
ABN
PANEL ARRANGEMENT FOR THE PROVISION OF
{INSERT TITLE OF GOODS AND SERVICES}
INDEX
CLAUSE NO.CLAUSE
1.INTERPRETATION OF CONTRACT
1.1Definitions
1.2Interpretation
1.3Language of Contract
1.4Measurement
2.TERM
3.PLACING OF ORDERS, EFFECT OF THE SPECIFICATIONS
AND PANEL ARRANGEMENT
3.1Placing of Orders
3.2Form and Content of Orders
3.3Obligations of the Contractor
3.4Terms and conditions of an Order and Order of Precedence
3.5Specifications applicable to an Order
3.6Effect of the Specifications
3.7Panel Arrangement - Council not bound to order from the Contractor
4.PROVISION OF THE GOODS/SERVICES
4.1General Conditions in relation to the provision of Goods/Services
4.2Specific Conditions in relation to the provision of Goods
4.3Specific Conditions in relation to the provision of Services
4.4Compliance with Legislative Requirements
4.5Skill of Contractor’s Staff
4.6Responsibility for Contractor’s Staff
4.7Acceptance
4.8Title
4.9Quality Assurance System {Optional – delete if not required}
4APERSONAL INFORMATION
5.VARIATIONS TO THE SPECIFICATIONS OR GOODS/SERVICES
6.ACCESS TO COUNCIL PREMISES AND SYSTEMS
7.PRICE AND PAYMENT
7.1Contract Prices
7.2Invoices
7.3Disputed Services
7.4Goods and Services Tax and other taxes
7.5Recovery of Amounts due to Council
8.NEGATION OF EMPLOYMENT AND AGENCY
9.RELEASE OF INFORMATION
10.INTELLECTUAL PROPERTY RIGHTS
11.INDEMNITY
12.INSURANCE
13.DISPUTES
14.TERMINATION
14.1Termination by the Council without notice
14.2Termination for Default
14.3Contractor’s obligations upon receipt of Termination Notice
14.4Effect of Termination
14.5Council’s liability upon Termination
14.6Council’s rights upon Breach
14.7Suspension
14.8Force Majeure
15.CONTRACT MANAGEMENT AND NOTICES
15.1Council’s Contract Authority
15.2Notices
16.GENERAL
16.1Entire Agreement and Variation
16.2Waiver
16.3Assignment and Subcontracting
16.4Severability
16.5Rights and Remedies
16.6Applicable Law
SCHEDULES:
AGeneral Requirements
BContract Price Schedule
C Schedule of Goods/Services
Brisbane City Council - Contracts and Risk Management
Goods and Services worth 250k or more Panel Contract – version 8 – 10 September 2010
Panel Contract between Brisbane City Council and {insert name of Contractor}
for the provision of {insert title of Goods and Services} - Contract No. {insert no.}
THIS CONTRACT is made on the day of20 .
BETWEEN:
BRISBANE CITY COUNCIL a body corporate pursuant to the City of Brisbane Act 2010 and whose principal offices are situated at 266 George Street, Brisbane 4000 (“the Council”)
AND:
{INSERT NAME OF CONTRACTOR}ACN {insert ACN}ABN {insert ABN} whose principal offices are situated at {insert business address of Contractor here}(“the Contractor”)
RECITALS:
A.The Council requires the provision of the Goods/Services through a panel arrangement.
B.The Contractor has offered to provide the Goods/Services to the Council. The Council has accepted this offer upon the terms and conditions of this Contract.
IT IS AGREED AS FOLLOWS:
1.INTERPRETATION OF CONTRACT
1.1Definitions
In this Contract and each Order, except where the context otherwise requires:
(a)“Additional Period” means the period(s) specified in Item 1(b) of Schedule A;{Instruction: to be deleted if Option 1 is chosen for clause 2}
(b)“Authorised Persons” means persons who are authorised by the Council’s Contract Authority pursuant to clause 3.2;
(c)“Business Day” means Monday to Friday inclusive excluding days which are public holidays in Brisbane;
(d)“Claim” means any:
(i)costs, losses, damages or any liability of any kind directly or indirectly suffered or incurred by the Council or its employees, agents, contractors or sub-contractors; and/or
(ii)any claim, demand, action, suit or proceeding that may be made or brought by any person against the Council, its employees, agents, contractors or sub-contractors;
(e)“Commencement Date” means the date specified in Item 1(a) of Schedule A;
(f)“Contract Price” means in relation to the prices, rates, charges and expenses for the provision of the Goods/Services under an Order – such prices, rates, charges and expenses which are calculated in accordance with clause 7;
(g)"Contractor's GST Liability" means the GST the Contractor is required by the GST Laws to pay or remit in relation to the supply of the Goods/Services (including Disputed Services) to the Council under this Contract or any Order;
(h)“Contractor’s Staff” means each and every employee, agent, contractor or sub-contractor of the Contractor who is used by the Contractor to supply, provide or deliver the Goods/Services;
(i)“Council Premises” means any buildings, land, structural assets and any other facility which is owned, occupied or controlled by or on behalf of the Council and includes all locations or sites at which the Goods/Services are to be supplied, delivered or provided pursuant to this Contract and any Order;
(j)“Council’s Contract Authority” means the person who from time to time occupies or acts in the position specified in Item 3 of Schedule A and who is authorised to administer this Contract pursuant to clause 15.1;
(k)“Deliverable” means each and every outcome or deliverable of the Services (including all Documentation) which the Contractor is required to produce or contribute to as part of the provision of the Services under this Contract and/or an Order and which are more particularly described in the Specifications;
(l)“Details” means in relation to an Order, the details in relation to such matters as is determined from time to time pursuant to clause 3.2, and in the absence of such determination, shall be the details to be included in that Order in relation to the following matters:
(i)type of Goods/Services to be provided under the Order;
(ii)the Specifications pursuant to clause 3.5;
(iii)time period or times for the supply, provision or delivery of the Goods/Services;
(iv)the place at which the Goods/Services are to be supplied, provided or delivered; and
(v)the Contract Price for the provision of the Goods/Services under that Order;
(m)“Disputed Services” is as defined in clause 7.3;
(n)“Documentation” means any document, record, system, program or other material (irrespective of the form in which such information is written, embodied, stored and/or reproduced whether by electronic means (including encryption or encoding) or in any handwritten form (including notes and drafts)) which the Contractor is required by the Specifications, this Contract and/or any Order to produce or contribute to as a result of the provision of the Goods/Services;
(o)“Expiry Date” means the date specified in Item 1(b) of Schedule A;
(p)“Goods” means in relation to Goods ordered under an Order - such items of Goods set out in Schedule C as are specified in that Order (including any Variation to such Goods) and includes any Documentation to be provided with the Goods such as manuals, instructions and material safety data sheets (“MSDS”) that are applicable to each item or type of Goods together with any warranty requirements specified and/or described in the Specifications in relation to such Goods;
(q)“Goods/Services” means the Goods and/or Services ordered from time to time pursuant to an Order;
(r)“GST” means the tax on the provision or supply of goods and services (or similar tax) imposed under the GST Laws;
(s)“GST Laws” means the GST law (as defined by A New Tax System (Goods and Services Tax) Act 1999 of the Commonwealth) together with all associated legislation and any additional or substituted legislation:
(i)providing for any value added tax, consumption tax, retail sales tax or other goods or services tax; or
(ii)dealing with price exploitation and excessive profit taking prohibited by such laws;
(t)“Intellectual Property Rights” means all forms of patent, copyright, trade mark, trade name, trade secret, know-how, discovery, invention, secret process, design, improvement in procedure, innovation and any rights to register or claim any type of intellectual property right (irrespective of whether created before, on or after the date of an Order);
(u)“Legislative Requirements” means all laws, local laws, by-laws, licences, industrial awards, permits and all other lawful requirements that from time to time are applicable to the proper provision of the Goods/Services by the Contractor or the Contractor’s Staff (including, but not limited to, the Environment Protection Act 1994 (Qld) and the Workplace Health and Safety Act 1995 (Qld));
(v)“Maximum Term” means the period specified in Item 1(b) of Schedule A;{Instruction: to be deleted if Option 1 is chosen for clause 2}
(w)“Order” means any order placed by the Council in accordance with clause 3 and includes any Variation to that Order;
(x)“Quality Assurance System” means the Contractor’s system (as specified in Item 4 of Schedule A) which establishes the qualities and performance of the Goods/Services (including without limiting the generality of this term, all quality manuals, plans and all other quality documentation such as inspection and test plans, management structures and responsibility statements, techniques for identification and management of non-conforming Goods/Services or Disputed Services, audit and other critical issues relating to quality assurance); {Instruction: this definition is only to be used if clause 4.9 is used. If clause 4.9 is deleted, delete this definition}
(y)“Renewal Date” means the date(s) determined by Item 1(b) of Schedule A; {Instruction: to be deleted if Option 1 is chosen for clause 2}
(z)“Services” means in relation to Services ordered under an Order - such Services set out in Schedule C as are specified in that Order (including any Variation to such Services) and includes any Deliverables and Documentation required to be created, provided or produced (either in whole or in part) by the Contractor as part of the provision of the Services;
(aa)“Specification” means the Specifications for the provision of the Goods/Services by the Contractor under an Order and which are determined pursuant to clause 3.5;
(bb)“Term” means in relation to this Contract, the period determined by clause 2 and in relation to an Order, means the time period specified in the Details for the supply, provision or delivery of the Goods/Services;
(cc)“Variation” is as defined by clause 5.
1.2Interpretation
(a)Unless the context otherwise requires, the singular includes the plural and vice versa. The clause headings of this Contract (or any Order) shall not in any way affect their interpretation. Any one gender includes all genders.
(b)All references to “dollars” and “$” are to Australian dollars.
(c)All references to “Contractor” shall also include the Contractor’s successors and assigns and all references to “Council” shall also include the Council’s successors and assigns.
(d)References to a “document” includes but is not limited to, any drawing, specification, material, record or any other means in which information can be stored or reproduced.
(e)All references to any information or material in an Order includes all information or material that is expressly incorporated in that Order and/or referred to by that Order and/or attached to that Order.
1.3Language of Contract
All information delivered as part of the Goods/Services supplied under this Contract and any Order shall be written in English. Where any such Documentation is a translation into English, such translation shall be accurate and as is agreed by Council.
1.4Measurement
Measurements of physical quantity shall be in Australian legal units of measurement as prescribed under the National Measurement Act 1960, or if any of the Goods/Services are imported and do not conform to such legal units, such other unit of measurement as is agreed by Council.
2.TERM
{Instruction: where the Term is for a fixed period with no option to extend, insert the following Option 1:}
This Contract shall commence on the Commencement Date and shall expire on the Expiry Date unless terminated earlier in accordance with this Contract.
{Instruction: where the Term of the Contract is for an initial term with one or more options to extend, insert the following Option 2:}
2.1The Term of this Contract shall commence on the Commencement Date and shall expire on the Expiry Date unless the Term is extended pursuant to clause 2.2 or is terminated in accordance with this Contract.
2.2From and including a Renewal Date, the Term of this Contract can be extended for an Additional Period PROVIDED THAT:
(a)at least three (3) months before the relevant Renewal Date, both parties have agreed to such extension by written notice or agreement;
(b)any such extension shall be on the same terms and conditions of this Contract (including this clause 2); and
(c)nothing in this clause shall enable this Contract to be extended beyond the Maximum Term.
3.PLACING OF ORDERS AND EFFECT OF THE SPECIFICATIONS
3.1Placing of Orders
(a)When the Council requires the provision of any Goods/Services, it shall place an Order with the Contractor and shall agree the Details of any such Order with the Contractor prior to the provision of the Order provided always that such Details are in accordance with the provisions of this clause 3 and any variations to the Specifications are in accordance with clause 3.5.
(b)Where the parties are unable to reach agreement in relation to the Details referred to in paragraph (a), there is no contract between the parties in relation to that Order.
(c)Provided an order placed by the Council with the Contractor for the provision of the Goods/Services is made in accordance with this clause 3, it shall be an Order for the purposes of this Contract irrespective of whether the order is identified as an “Order” for the purposes of this Contract.
(d)Notwithstanding any other provision in this Contract, if the Contractor is requested to provide Council with Goods/Services under an Order, the Contractor shall use its best endeavours to agree the Details of that Order. If the Contractor is not able to do so, it must provide the Council’s Contract Authority with a written reasonable explanation as to the circumstances which prevent the Contractor from agreeing such Details and do so within fourteen (14) days of the date on which Council first places the Order under clause 3.1(a).
3.2Form and Content of Orders
The Council’s Contract Authority may, from time to time during the Term, determine the:
(a)form of an Order, the matters to be addressed by the Details and manner in which such Orders can be placed by the Council with the Contractor under this Contract; and
(b)persons who are authorised to place such Orders with the Contractor (“Authorised Persons”).
Any determination in relation to the matters referred to in paragraph (a) shall be made following consultation with the Contractor. Any such determination in relation to the matters referred to in paragraphs (a) and (b) shall have force and effect from the date the Council’s Contract Authority provides the Contractor with written notification of the Council’s Contract Authority’s determination.
3.3Obligations of the Contractor
(a)Where an Order is placed with the Contractor, the Contractor shall provide the Goods/Services in accordance with the terms and conditions of that Order.
(b)The Contractor shall not provide any Goods/Services where it receives an Order that is placed by a person who is not an Authorised Person. If the Contractor does so, the Council is not under any obligation (whether legal or equitable) to pay for such Goods/Services.
3.4Terms and conditions of an Order and Order of Precedence
Each Order placed under this Contract will constitute a separate contract between the Council and the Contractor and the terms and conditions of each such Order shall be:
(a)the same as the conditions of this Contract (except clause 2);
(b)the Details;
(c)the Specifications; and
(d)any other document attached to or referenced by the Order;
and in the event of any conflict or inconsistency between any of the above provisions, then the above descending order of precedence applies to the extent of the conflict or inconsistency.
3.5Specifications applicable to an Order
In respect of any Goods/Services ordered under an Order, the Specifications applicable to those Goods/Services shall be:
(a)the description (if any) of the qualities and other requirements as contained in Schedule C in relation to those Goods/Services. Where an Order placed by the Council does not seek any such variation to these Specifications in relation to the Goods/Services ordered, the Contractor must provide the Goods/Services in accordance with the applicable Specifications and any other requirements of that Order; and/or
(b)such other additional or substituted requirements as the parties agree will be the Specifications for the purposes of an Order.
3.6Effect of the Specifications
Where the Specifications:
(a)require the Contractor to perform its obligations under this Contract and/or any Order in any particular manner – those requirements of the Specifications shall be deemed to be contractual obligations of the Contractor under that Order and this Contract; and
(b)provide the Council with any obligation, right or entitlement in respect of the provision of the Goods/Services by the Contractor under this Contract and/or any Order – those provisions of the Specifications shall be deemed to be contractual obligations, rights or entitlements of the Council under that Order and this Contract;
provided always that in accordance with clause 3.4, where there is any conflict or inconsistency between the requirements of the Specifications and the provisions of this Contract, then the provisions of this Contract shall apply to the extent of the conflict or inconsistency.
3.7Panel Arrangement - Council not bound to order from the Contractor
(a)This Contract is part of a panel arrangement established by the Council whereby a number of panel participants (such as the Contractor) have signed contracts similar to this Contract to provide the Council with such Goods/Services as the Council may from time to time require and obtain through the placement of an order with a panel participant (including the Contractor).
(b)It is a condition of this Contract (and each Order) that the Council:
(i)is not providing any guarantee, promise or undertaking (whether legal or equitable) that it will acquire any Goods/Services from the Contractor during the Term of this Contract; and
(ii)may at any time place an order for the provision of Goods/Services from:
A.another panel participant; or
B.from any third party;
where either the Council is of the opinion that none of the panel participants can provide the Goods/Services in question as and when required by the Council or where, an Order has been placed with a panel participant and the Council is exercising its rights pursuant to clause 14.6 (or any other provision) of this Contract or that Order.
4.PROVISION OF THE GOODS/SERVICES
4.1General Conditions in relation to the provision of Goods/Services
It is a condition of this Contract and each Order for Goods/Services that the Contractor shall: