Department of Treasury and Finance

Agreement for the supply of Goods

(Sole Entity Multiple Purchase)

[Instructions for use of this document: wherever brackets [ ] appear within this document complete instruction or delete if not applicable – including these instructions. Note that all contractual variables are contained in the Schedules.]

[Organisation name]

Version 1.1

Agreement for the supply of Goods 1

Department of Treasury and Finance

Table of Contents

Parties 1

Background 1

Agreed Terms and Conditions 1

Interpreting this Agreement 1

1. Definitions and Interpretation 1

1.1 Definitions 1

1.2 Interpretation 6

1.3 Headings 6

Requesting the Goods 6

2. Standing offer to supply the Goods 6

3. Ordering Goods 7

3.1 The Organisation may issue a request for Goods 7

3.2 Purchase Order 7

3.3 Formation of a Purchase Order Contract 7

3.4 Terms incorporated into a Purchase Order Contract 7

3.5 Inconsistency 7

Supplying the Goods 8

4. Title in and risk to Goods 8

5. Supply and delivery of Goods 8

5.1 Supplier’s obligations 8

5.2 Delivery of Goods 8

5.3 Unloading of Goods 8

5.4 Testing of Goods 8

5.5 Acceptance of Goods 9

5.6 Rejection of Non-conforming Goods 9

5.7 Manufacturer’s warranty 9

5.8 Co-operation with third parties 10

6. Delays and failure to perform 10

6.1 Late delivery 10

6.2 Liquidated damages payable for failing to meet required dates 11

7. Variations 11

8. Access and safety 11

8.1 Access to premises 11

8.2 Obligations 12

9. Specifications 12

9.1 The Specifications 12

9.2 Variation of Specifications 12

Pricing and payments 13

10. Price for the Goods 13

11. GST and other taxes 13

11.1 Definitions 13

11.2 Consideration is exclusive of GST 13

11.3 GST Gross Up 13

11.4 Reimbursement 13

11.5 Adjustment Event 14

11.6 CPI Reviews 14

11.7 Other taxes 14

12. Invoicing and payment 14

12.1 Invoicing 14

12.2 Payment of invoices 14

12.3 Fair payment 15

Governance and relationship management 15

13. Contract management 15

13.1 Parties’ Representatives 15

13.2 Responsibility Chart 16

13.3 Service Level Requirements 16

13.4 Progress report 16

13.5 Contract management review 16

14. Sub-contracting 17

15. Compliance with Law and Policy 17

15.1 General Law and Policy 17

15.2 Victorian Public Sector Commission Code of Conduct 17

15.3 Supplier Code of Conduct 18

15.4 Employment policy 18

15.5 Victorian Industry Participation Policy (VIPP) 18

15.6 No unlawful inducements 18

16. Conflict of Interest 18

17. Change in Control 19

18. Disputes 19

18.1 Parties to meet 19

18.2 Mediation 19

18.3 Arbitration or litigation 20

18.4 Performance during Dispute resolution 20

18.5 Interlocutory relief 20

19. Notices 20

19.1 Giving a communication 20

19.2 Time of delivery 20

19.3 After hours communications 21

Information and intellectual property 21

20. Access to records 21

20.1 Supplier to retain records 21

20.2 Right to access and audit 21

21. Intellectual Property Rights 22

21.1 Licence by the Supplier to the Organisation 22

21.2 No assignment 22

22. Data 22

23. Confidentiality, privacy and data protection 22

23.1 Use of Confidential Information 22

23.2 Exceptions to the Supplier’s obligations of confidentiality 23

23.3 Prevention of use or disclosure of Confidential Information 23

23.4 Disclosure by Supplier required by Law 23

23.5 Supplier’s consent to disclosure of information 24

23.6 Return of Confidential Information by the Supplier 24

23.7 Privacy 24

23.8 Data protection 25

Liability 26

24. Liability 26

Representations and warranties 27

25. Warranties 27

26. Insurance 28

27. Accident compensation 29

Term and termination 29

28. Term 29

28.1 Initial Term 29

28.2 Extension 29

29. Termination 29

29.1 Termination for cause 29

29.2 Termination without cause 30

29.3 Grounds for termination by the Supplier 30

29.4 Consequences of termination or expiry 30

29.5 Survival 31

Other miscellaneous terms 31

30. General 31

30.1 Legal costs 31

30.2 Amendment 31

30.3 Waiver and exercise of rights 31

30.4 Severability 31

30.5 Rights cumulative 31

30.6 Set off 32

30.7 Time of the essence 32

30.8 Governing law and jurisdiction 32

30.9 Assignment or transfer of rights and obligations 32

30.10 Counterparts 32

30.11 Entire understanding and order of precedence 32

30.12 Relationship of parties 33

Schedule 1 - Contract variables 34

Schedule 2 - Goods and Unit Price 37

Schedule 3 - Service Level Requirements 38

Schedule 4 - Victorian Industry Participation Policy (VIPP) 39

Schedule 5 - Specifications 40

Annexure A – Form of Purchase Order 43

Agreement for the supply of Goods (Sole Entity Multiple Purchase) i

Department of Treasury and Finance

Parties

Date: [insert date]

[Organisation name]

of [Insert address of Organisation] (Organisation)

and

[Supplier name]

Australian Business Number: [insert]

of [Insert registered address] (Supplier)

Background

(a)  The Supplier wishes to supply the Goods to the Organisation.

(b)  The Organisation has agreed to engage the Supplier to make a standing offer to supply the Goods in accordance with this Agreement.

(c)  The Parties agree to work together throughout the Term in accordance with the terms of this Agreement to continuously improve the supply of Goods under this Agreement for the benefit of both Parties.

Agreed Terms and Conditions

Interpreting this Agreement

1.  Definitions and Interpretation

1.1  Definitions

In this Agreement:

ADC has the meaning given to that term in clause18.2(a).

Agreement means this agreement for the supply of the Goods, including the Schedules and any annexures to the Schedule or items incorporated by reference.

Business Day means a day which is not a Saturday, Sunday or public holiday (being a public holiday appointed as such under the Public Holidays Act 1993 (Vic)) in Melbourne.

Change in Control Notice has the meaning given to that term in clause17(a).

Code of Practice means a code of practice as described in, and approved under, the PDP Act.

Commencement Date means the date from which the Supplier’s standing offer to provide the Goods will commence, as specified in Item 1 of Schedule 1.

Commissioners means the Privacy and Data Protection Deputy Commissioner appointed under the PDP Act and the Information Commissioner and the Public Access Deputy Commissioner appointed under the Freedom of Information Act 1982 (Vic).

Completion Date for a Purchase Order Contract, means the date the Supplier is required to complete the delivery of all Goods required under the Purchase Order Contract as specified in Item 1 of Schedule 1 or as otherwise specified in a Purchase Order.

Confidential Information means any technical, scientific, commercial, financial or other information of, about or in any way related to, the Organisation, including any information designated by the Organisation as confidential, which is disclosed, made available, communicated or delivered to the Supplier in connection with this Agreement, but excludes information which:

(a)  is in or which subsequently enters the public domain (and confidential information will not be deemed to be in the public domain merely because it relates to other information which may be in the public domain), other than as a result of a breach of an obligation of confidentiality;

(b)  the Supplier can demonstrate was in its possession before the date of this Agreement;

(c)  the Supplier can demonstrate was developed by it independently of any disclosures previously made by the Organisation; or

(d)  is lawfully obtained by the Supplier on a non-confidential basis from a person who is not bound by a confidentiality agreement with the Organisation or otherwise prohibited from disclosing the information to the Supplier.

Contract Publishing System means the system of the Victorian Government for publication of details of contracts entered into by some Victorian Public Entities, including any replacement or amended system.

Control means, in relation to the Supplier, the ability of any person to, directly or indirectly, exercise effective control over the Supplier (including the ability to determine the outcome of decisions about the financial operating and other policies of the Supplier) by virtue of the holding of voting shares, units or other interest in the Supplier or by any other means.

Data means all data, information, text, drawings, statistics, analysis and other materials embodied in any form which is:

(a)  supplied by or on behalf of the Organisation in connection with this Agreement (Input Data); or

(b)  generated, placed, stored, processed, retrieved, printed, accessed or produced utilising the Input Data or in the course of delivering the Goods.

Delivery Point means the location or address to which the Goods are to be delivered as specified in Item 3 of Schedule 1, or as otherwise specified in the relevant Purchase Order.

Dispute has the meaning given to that term in clause 18.1(a).

Dispute Notice has the meaning given to that term in clause 18.1(a).

Expiry Date means the date set out in Item 1 of Schedule 1.

Goods means the goods offered by the Supplier pursuant to this Agreement as specified in Item 1 of Schedule 2, and in relation to a Purchase Order Contract means the specific Goods to be supplied as set out in the relevant Purchase Order.

Guidelines has the meaning given to that term in clause18.2(a).

Health Privacy Principles means the health privacy principles set out in the Health Records Act 2001 (Vic).

IBAC means the commission established under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) and includes any other organisation that may, from time to time, perform the functions of the commission.

Indemnified Party has the meaning given to that term in clause 24(a).

Index has the meaning given to that term in clause11.6(a).

Information Privacy Principles has the meaning given in the PDP Act.

Initial Insurance has the meaning given to that term in clause26(d).

Insolvency Event means, in relation to the Supplier, any of the following:

(a)  anything that reasonably indicates that there is a significant risk that the Supplier is or will become unable to pay debts as they fall due, including:

(i)  execution or distress being levied against any income or assets of the Supplier;

(ii)  a meeting of the Supplier's creditors being called or held;

(iii)  a security becoming enforceable or being enforced in relation to any of the Supplier's assets or undertakings;

(iv)  a step being taken to make the Supplier bankrupt or to wind the Supplier up;

(v)  the appointment to the Supplier of a controller or administrator as defined in section 9 of the Corporations Act 2001 (Cth);

(vi)  the Supplier entering into any type of agreement, composition or arrangement with, or assignment for the benefit of, all or any class of its creditors; or

(vii)  the Supplier being made subject to a deed of company arrangement,

(b)  a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the Supplier or any of its assets; or

(c)  the Supplier ceasing, or indicating that it is about to cease, carrying on business.

Intellectual Property Rights means all intellectual property rights at any time recognised by law, including all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, trade secrets and know-how, registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Invitation means the documents published by the Organisation inviting the market place to submit offers to supply the Goods pursuant to this Agreement.

IPR Claim has the meaning given to that term in clause24(e).

Laws means:

(a)  any statute, regulation or subordinate legislation of the Commonwealth of Australia, the State of Victoria or local or other government in force in the State of Victoria, irrespective of where enacted; and

(b)  lawful requirements of any government or government department or other body or a governmental, semi-governmental, judicial, municipal, statutory or public entity or authority (including a statutory authority or a State-owned enterprise), a self-regulatory authority established under statute or a stock exchange (wherever created or located) or a person (whether autonomous or not) who is charged with the administration of a law.

Losses has the meaning given to that term in clause 24(a).

Mediation has the meaning given to that term in clause 18.1(c).

Milestone means a milestone specified in Item 2 of Schedule 2 or a Purchase Order (as relevant).

Milestone Date, for a Milestone, means the date specified in Item 2 of Schedule 2Schedule 2 or a Purchase Order (as relevant) by which the Supplier must perform the Milestone.

Model Litigant Guidelines means the guidelines regarding the conduct of litigation by the State, as updated from time to time.

Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth) and includes a right of a similar nature that is conferrable by statute, and that exists or comes into existence anywhere in the world.

Non-conforming Goods has the meaning given to that term in clause5.6(a).

Offer means the documentation and any supporting materials lodged by the Supplier in response to the Invitation containing an offer to supply Goods in the form finally accepted by the Organisation.

PDP Act means the Privacy and Data Protection Act 2014 (Vic).

Personal Information has the meaning given to that term in the PDP Act and also includes, for the purposes of this Agreement, health information, as that term is defined in the Health Records Act 2001 (Vic).

Personnel of a party includes the officers, employees, agents, contractors and sub-contractors of that party.

Privacy Obligations has the meaning given to that term in clause23.7(a).

Protective Data Security Standard means any standard issued under Part 4 of the PDP Act.

Public Sector Employee has the same meaning as in the Public Administration Act 2004 (Vic).

Purchase Order means an order for Goods submitted by the Organisation to the Supplier that is in, or substantially in, the form set out in Annexure A.

Purchase Order Contract means a contract for the supply of Goods which is formed between the Organisation and the Supplier in accordance with clause 3.3.

Purchase Price means the sum calculated by multiplying the Unit Price for the applicable Goods by the number of units delivered under a Purchase Order Contract.

Reimbursable Expense has the meaning given to that term in clause11.4.