Between a Supplier under an Approved List and a Customer
CONTRACT NAME
Approved List for --- Goods/Services
When You (as Supplier approved to be on the List for the Goods and/or Services by the Principal), are making a Contract with a NSW Government Agency Customer, You do so on the terms and conditions of this document and the Order placed by the Customer on You.
The terms of the agreement between you and the Customer
“You” means the supplier that is on a Specified List for the Goods and/or Services set up by the Principal for supplying NSW Government Agencies
“”Customer” is the NSW Government Agency that places an Order for Goods and/or Services on You
“Principal” is the Government Agency that set up the List.
As a result of you being a supplier on the List for the Goods and/or Services, you can supply to NSW Government Agencies. The supply happens when a NSW Government Agency places an Order with you for the Goods and/or Services. Once the Order is placed, the NSW Government Agency becomes a Customer.
The terms and conditions that apply to a Contract made between You and a Customer when an Order is placed
A Customer can buy Goods and/or Services from You by placing an Order. When that happens, a Customer Contract is made and the terms of that Customer Contract are made up of:
the general conditions of contract that are in this document; and
the provisions in the relevant Order. The Customer can put its specific requirements in the Order – such as, for example, packaging requirements, delivery requirements, special conditions that may have to be followed for the Customer (schools have special requirements, for example).
If the Order contradicts the general conditions of contract, the general conditions of contract prevail.
What you have to do after receiving an Order
General
When you receive an Order, You must provide the Goods and/or Services as described in the Order. The Goods and/or Services must be like those that are described in the List that you joined. Also, the Goods and/or Services must comply with any added requirements and directions given to You by the Customer in the Order or that the Customer gives you separately. The added requirements may be about things that apply to the Customer, for example: the name of the person that must sign for the Goods on delivery; special checks that must be obtained for Your staff entering the Customer’s premises (such as a school or hospital etc).
Goods
As the supplier of the Goods, You must ensure that:
(i)the Goods comply with the Specifications given to you by the Customer; and
(ii)the Goods delivered are identical to the tested Goods if the Goods have to be tested for the Customer;
(iii)the Goods are properly and securely packaged so as to reach the Delivery Address in the Order in a new and undamaged condition;
(iv)the Goods have the documentation sent with the package or container (including delivery advice notes and packing lists) that the Customer has asked for (for example, the Delivery Address, contact name and contact number of the relevant Customer contact); and
You must:
(i)deliver the Goods and the necessary documentation to the Delivery Address in the Delivery Timeframe that the Customer set out in the Order; and
(ii)if required in the Order, before handing over the Goods, sight the staff identification tag, obtain the signature, and record the full name and staff number, of the Customer Representative that takes receipt of the Goods ("Proof of Delivery"). If requested by the Customer, You must provide to the Customer the relevant Proof of Delivery.
If Goods delivered by You to the Customer under a Contract:
(iii)are not the Goods requested in the Order because they are different from the Specification or different from the Tested Goods; or
(iv)do not comply with a representation or warranty that You make about the Goods,
then the Customer, whether or not it has paid for the Goods, may reject the Goods by giving You a Rejection Notice. If you get a Rejection Notice, then the Customer can ask you either :
(v)to immediately refund any moneys paid in advance for the Goods (if applicable). Usually NSW Government Agencies pay in arrears; or
(vi)to immediately replace the Goods at Your cost.
You agree that ownership or title to the Goods transfers to the Customer on delivery of the Goods to the Delivery Address. If the Goods are re-taken by You, then the risk of loss or damage of those Goods passes back to You on removal from the Customer’s premises.
Services
As the supplier of Services, You must provide:
(i)the Services to the Customer in accordance with the relevant Order; and
(ii)without additional charge, any incidental or related services that are required for the proper performance or use of the Services,
to meet the standards (if any) that the Customer asks for in the Order. Also, the Services must be in compliance with the Customer’s policies and procedures notified by the Customer to the Supplier. The Customer will set these policies and procedures out in the Order it places with You.
Conflict of interest
NSW Government Agencies must comply with laws that aim to prevent corruption and must make contracts in a fair and impartial way to achieve value for money. A part of this is ensuring that neither the NSW Government Agency staff nor Your staff have a conflict of interest.
A conflict of interest is a situation in which either the NSW Government Agency Customer staff or You, has competing professional or personal interests. Such competing interests could make it difficult for the individual to fulfil his or her duties impartially, and potentially could improperly influence the performance of their official duties and responsibilities. Conflicts of interest must be disclosed so that contracts are made fairly and impartially and on the basis of value for money.
If You find yourself in a position of a conflict of interest in supplying the Goods and/or Services to the Customer, then You must immediately notify the Customer of this conflict of interest and, the Customer and You will immediately try to manage and resolve the conflict of interest to the Customer’s reasonable satisfaction.
Standard of performance, Laws and Policies
You must perform your obligations under a Contract:
(a)in accordance with best industry practice. The Customer will rely on you, as the supplier of the Services, to know what the best industry practice is;
(b)complying with the laws and policies that apply to the supply of the Goods/Services to the Customers. You will need to know the laws that apply to the supply of the Goods/Services and the Customer will tell you about the laws and policies that you have to comply with for that Customer;
(c)with all due care, skill and diligence expected of a professional service supplier and in a proper and workmanlike manner; and
(d)in a cost effective manner consistent with the required level of quality and performance.
Your Personnel
You must:
(a)ensure each of Your Personnel is suitably qualified and experienced to supply the Goods and/or Services;
(b)remove and replace any of Your Personnel as reasonably requested by the Customer;
(c)provide the list of Your Personnel and relevant information and details of each such Your Personnel at the Customer’s request;
(d)if requested in the Order, conduct a national criminal record search or a working with children check from the relevant police force of each of Your Personnel as requested by the Customer, and provide the results of such criminal record search to the Customer;
(e)at its own expense, conduct any investigations reasonably requested by the Customer in relation to Your Personnel;
(f)not permit a person to perform work under a Contract without the Customer’s prior written consent if the search conducted under paragraph (d) above shows that the person was convicted of an offence which is or could be a Relevant Offence that the Customer tells you, in its Order, is a Relevant Offence.
Neither the Customer nor You is required to comply with paragraphs (d) to (f) if that compliance would result in a contravention of any legal requirement with which the party is required to comply.
Payments and invoices
Contract Price
The Customer will pay the Contract Price to You. The Contract Price is inclusive of GST and is the price for the Goods and/or Services either that you have agreed in the List to provide the Goods and/or Services for or the price that you have quoted the Customer.
However, You are not entitled to recover any charge or expenses additional to the Contract Price for the supply of Goods, the performance of the Services, providing any benefit or the performance of any acts, even if required to do so under the Contract, unless the Contract provides for it.
Invoices
You may only invoice the Customer for the relevant Contract Price:
(a)for Goods, on delivery of all Goods; and
(b)for Services, on completion of all Services,
under the Customer Contract you have made with the Customer.
Payment of invoices
The Customer will pay each correctly rendered invoice within 30 days of the date of its receipt of that invoice. An invoice is correctly rendered if:
(a)the invoice is a tax invoice;
(b)the Goods have been delivered or the Services completed;
(c)the amount claimed in the invoice is correctly calculated;
(d)the invoice includes the relevant Customer purchase order number, and is addressed to the person named by the Customer and set out in a manner that identifies the Contract, the Goods and/or Services which the invoice covers and itemises each amount claimed, to a level of detail asked for by the Customer (the Customer must, in asking for details, be acting reasonably); and
(e)the invoice is accompanied by documents that adequately show to the Customer the Goods supplied, the Services that were performed and the basis on which the amounts are claimed.
Contractor Statement
You must give the Customer a completed Contractor Statement within 5 Business Days of the Customer’s request. This shows that you have paid your sub contractors.
Disputed amounts
If the Customer disputes an invoice, then the Customer does not need to pay You the disputed amount until the dispute is resolved, but will pay all undisputed amounts by the due date.
Payment does not affect other rights
Payment of money by the Customer does not mean:
(a)that the Customer accepts any Goods and/or Services but can still reject them if the Customer finds out that they are not what was required in the Order;
(b)the Customer gives up any right or legal action which the Customer may have at any time against You;
(c)that You have carried out your obligations under the Contract; or
(d)proofof the value of any of the Goods and/or Services.
Amounts due to the Customer
Each amount payable by You to the Customer under an indemnity, warranty, reimbursement, rebate or refund obligation, or default event under the Contract is a debt due and payable to the Customer on demand. Any demand must be accompanied by any relevant verifying documentation and, if the amount payable is a taxable supply must be a tax invoice. At the Customer’s option You must pay or credit the amount to the Customer, within 30 days after issue of the demand or in accordance with the time otherwise set out in the Contract.
The NSW Government’s 30 day payment policy and interest for late payment
If You are a small business (that is, have an annual turnover of $2 million or less in the latest financial year), then where payment is not made on time as agreed, the Customer must pay simple interest on the unpaid amount calculated daily from the day after payment was due up to and including the day that payment is made, where interest exceeds A$20. The interest rate is determined under section 22 of the Taxation Administration Act 1996. The appropriate interest rate is available from the NSW Office of State Revenue website.
Intellectual Property Rights
Existing Intellectual Property Rights
All Intellectual Property Rights of the parties existing before the date of the Contract will be retained by the relevant party. Intellectual Property includes property such as copyright and trademarks and the meaning is set out in the Dictionary.
You Grant Licence to the Customer
For the Intellectual Property that You own, You grant to the Customer a, perpetual, royalty-free, non-exclusive, irrevocable licence:
(a)to Use Your IP to the extent necessary to receive the full use and benefit of the Goods and/or Services; and
(b)sub-licence to any person.
Indemnity for Infringement Claim
You (either directly or by procuring Your Subcontractors to do so) indemnify the Customer against all costs (including legal costs on a solicitor and own client basis), losses, damages and expenses that the Customer may sustain or incur as a result of an Infringement Claim.
Other remedies
If, as a result of any Infringement Claim, the Customer is prevented from using the Goods or the results of the Services, You must, at the Customer's option and at Your cost promptly procure for the Customer replacement goods or materials and perform the Services again which comply with the relevant Specifications.
Warranties
You represent and warrant that:
(a)the Goods:
(i)are of good quality, fit for purpose and free from defects and omissions in material, design or workmanship;
(ii)upon title passing to the Customer, will be unused and free from any charge or encumbrance; and
(iii)will comply with all laws that are related in any way to the Goods.
(b)You and Your Personnel will not infringe the Intellectual Property Rights or moral rights of any person in providing the Goods and/or Services or otherwise performing the Contract; and
(c)the Goods and/or Services and their use will not:
(i)result in a breach of any law or mandatory code of conduct;
(ii)infringe any person's rights (including Intellectual Property Rights and moral rights);
(iii)constitute a misuse of any person's confidential information.
Termination
Withdrawal of Orders
The Customer may cancel an Order for no charge beforeexpiry of 2 Business Days from the date that the Order was placed; but not if at that date the Supplier has committed substantive resources to fulfil the Order or has acquired or irrevocably committed to acquire substantive inputs from a third party in order to fulfil the Order.
Termination by either party
Either You or the Customer may immediately terminate a Contract (in whole or in part) on notice to the other if that other:
(a)breaches a material provision of the Contract and the breach is incapable of remedy;
(b)breaches a material provision of the Contract and fails to remedy it within 30 days of receiving a notice detailing the breach and requesting that it be rectified; or
(c)is Insolvent.
Legal Remedies not affected by termination
Termination of a Contract does not affect any remedies which either party may have under that Contract or otherwise.
Survival
Once the Goods and/or Services have been supplied and paid for, the Contract is at an end but if there is a claim about Infringement of Intellectual Property Rights, Warranties, Payment of Invoices or an issue with Confidential Information or personal information then these matters will be dealt with as though the Contract was not at an end.
General
Confidentiality
If You or the Customer receive Confidential Information from the other, neither must disclose the Confidential Information to any person except as required by law. Confidential Information is information that the other party describes as confidential or is by its nature information that should be treated as confidential. However, the Customer may disclose any of Your Confidential Information to other NSW Government agency Customers.
Disclosure of details of Customer contracts with the private sector
The Customer may be required to publish certain information about the Customer Contract in accordance with ss 27 – 35 of the Government Information (Public Access) Act 2009 (NSW). Noinformation which is commercial-in-confidence or could reasonably be expected to affect public safety or security will be published. You should immediately advise the Customer in writing, identifying the provisions and providing reasons so that the Principal may consider seeking to exempt those provisions from publication.
Compliance with privacy requirements
The federal Privacy Act may apply to You in your business. In making a contract with NSW Government Agency Customers, you must also comply with the Information Protection Principles in the NSW Privacy and Personal Information Protection Act. This means that you must hold the personal information and deal with it only for the purposes of the Contract and not for any other purpose.
Sub-contracting
You may subcontract the whole or part of its obligations under the Contract to any person that is qualified to perform those obligations (“Subcontractor”) and must provide the Customer with the details of each Subcontractor on request. However, You are responsible for all acts and omissions of Subcontractors as if they were Yours.
Assignment
You may not assign or novate a Customer Contract to another person without the prior written consent of the Customer (but the Customer cannot unreasonably withhold or delay that consent).
Force majeure
If a party is unable to perform or is delayed in performing an obligation under a Contract because of a significant event beyond that party’s reasonable control then that obligation is suspended but only so far and for so long as it is affected by the event. Such an event is called a Force Majeure Event. If one occurs, the party affected by it must: