1. The Contract
A Contract will be formed between the Customer and Supplier on the terms of these Basic Purchasing Conditions when the Supplier accepts a Basic Order, or provides the Goods or Services set out in a Basic Order. The Contract continues until the Goods are delivered or the Services are performed, or the expiry date specified in the Basic Order (if applicable) unless terminated earlier in accordance with this Contract.
3. Supplier to provide Goods and/or Services
The Customer appoints the Supplier to supply the Goods and/or Services. The Supplier accepts the appointment. The Supplier must provide the Goods and/or Services in accordance with this Contract and the Customer’s delivery instructions including within the time-frames specified in the Basic Order or as otherwise agreed.
The Supplier will promptly notify the Customer if it believes it will not be able to meet any delivery date or other time-frames specified in the Basic Order. If the Supplier cannot meet the time-frames specified in the Basic Order, then the Customer may terminate the Contract at no cost to the Customer.
4. Right to cancel Basic Order before delivery for convenience
The Customer has the right to cancel the Basic Order and terminate this Contract at any time prior to delivery of the Goods or completion of the Services, by written notice to the Supplier. The Supplier will promptly notify the Customer if it will incur expenses as a consequence of the cancellation, including the estimated amount. If the Customer proceeds to cancel the Basic Order, the Customer will reimburse the Supplier for its reasonable out of pocket expenses reasonably incurred as a direct consequence of the cancellation. The Supplier must take all reasonable steps to minimize the expenses associated with cancellation.
(a) The Supplier must ensure that the Goods satisfy the description in the Contract or the Basic Order, are of a high quality, and fit for their usual purpose and any other purpose disclosed by the Customer before the Contract is formed.
(b) The Supplier must ensure the highest quality of work, and provide the Services in a proper, timely and efficient manner using the standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services that are similar to the Services;
(c) If the Supplier enters the Site to deliver the Goods or provide the Services, the Supplier must comply with Customer policies, codes of conduct, rules, standards and procedures, and workplace health and safety policies, relevant to the Site. The Customer will make copies available on request.
(d) The Supplier must comply with all reasonable directions of the Customer in relation to the Supplier’s performance of the Contract.
(e) The Supplier must comply with all Laws necessary for the Supplier to perform the Contract (and provide evidence of compliance if the Customer asks), and ensure that use of the Goods by the Customer as contemplated in the Contract will comply with all Laws.
(f) If the Supplier enters the Site to deliver the Goods or provide the Services, the Supplier must maintain public liability and products insurance for a minimum amount of $1 million per claim and workers’ compensation insurance (if required by law), and any other insurance specified in writing by the Customer.
(g) The Supplier must not use or disclose or otherwise make available any Confidential Information to any person except to its Personnel on a need to know basis to perform the Contract.
(h) If the Supplier collects or has access to any Personal Information in order to perform the Contract, the Supplier must, when performing this Contract:
(i) if the Customer is an ‘agency’ for the Information Privacy Act, other than for Chapter 3 of the Information Privacy Act – comply with those parts of Chapter 2 of the Information Privacy Act which are applicable to the Customer, as if the Supplier were the Customer; or
(ii) otherwise – comply with the Australian Privacy Principles in the Privacy Act.
(i) The Supplier is fully responsible for its Personnel, including for ensuring Personnel comply with the Requirements. The Supplier is not, and Supplier Personnel are not, employees of the Customer.
6. Conflict of Interest and criminal organisations
6.1. Conflict of Interest
The Supplier warrants that it and its Personnel do not hold any office or possess any property, are not engaged in any business or activity and do not have any obligations where a Conflict of Interest is created, or might appear to be created, in conflict with its obligations under this Contract, except as disclosed in writing to the Customer.
6.2. Criminal organisation
The Supplier warrants that neither it nor its Personnel:
(a) have been convicted of an offence under the Criminal Code where one of the elements of the offence is that the person is a participant in a criminal organisation within the meaning of section 60A(3) of the Criminal Code; or
(b) are subject to an order under, or have been convicted of an offence under the Criminal Organisation Act 2009.
6.3. Warranties are ongoing
The warranties in this clause are provided as at the date of the Contract and on an ongoing basis. The Supplier warrants that it will immediately notify the Customer if it becomes aware that any warranty made in this clause was inaccurate, incomplete, out-of-date or misleading in any way when made, or becomes inaccurate, incomplete, out-of-date or misleading in any way. In addition to any other remedies available to it under Law or contract, the Customer may, in its absolute discretion, immediately terminate the Contract if it believes the Supplier has breached any warranties in this clause.
7. Invoicing, Price and payment
(a) The Supplier may invoice the Customer after delivery of Goods or Services that comply with the Requirements.
(b) The Supplier must include adequate information for the Customer to verify that the invoice is accurate, and will provide supporting documentation reasonably requested by the Customer. The Customer is not required to pay any invoice that does not comply with this clause.
(c) The Customer will pay each correctly rendered tax invoice within 30 days of receipt.
(d) The Customer may withhold payment of any amount which it disputes in good faith, until the dispute is resolved and it is determined that the amount is payable.
(e) The Price is inclusive of all charges, expenses and overheads, and all taxes and duties, except for GST.
8. GST (a) Unless expressly stated otherwise, all amounts payable under this Contract are GST exclusive.
(b) Where GST is imposed on a supply under the Contract, the recipient of the supply shall pay to the supplier an amount equal to the GST (if any) payable on the taxable supply, at the same time that it is required to make the payment for the taxable supply, provided that it receives a valid tax invoice at or before the time of payment. Terms in this clause have the same meanings as in the GST Law.
9. Liability The maximum liability of a party to the other, whether in contract, tort (including negligence) or otherwise in connection with the Contract, is an amount equal to the total of all Prices (including additional expenses and charges) payable under the Contract, multiplied by 1.5. The cap on liability does not apply to liability in relation to:
(a) personal injury, including sickness, injury or death; or
(b) loss of, or damage to, tangible property; or
(c) Willful Default, Willful Misconduct, unlawful act or omission of, or failure to comply with applicable Law by the Supplier or its Personnel; or
(d) any Claim by a third party relating to this Contract, including breach of a third party’s Intellectual Property Rights.
10. Intellectual Property Rights The Supplier grants (and must procure that relevant third parties grant) the Customer an irrevocable, unconditional, perpetual, free of additional charge, non-exclusive, worldwide and transferable (including sub-licensee) licence to exercise all Intellectual Property Rights in the Goods and Services, for any purpose of the Customer, the State of Queensland or other Queensland Government Body. The Supplier warrants that it is authorized to grant the rights in this clause.
11. Customer Data The ownership of Customer Data, including any Intellectual Property Rights in Customer Data, shall vest in the Customer on creation. The Supplier has no right, title or interest in Customer Data except as specified in this clause. The Supplier must not use, access, modify or disclose Customer Data to any person except to its Personnel on a need to know basis to perform the Contract. The Supplier must comply with clause 5(h) and all applicable Laws in relation to Customer Data which is Personal Information, and must provide reasonable assistance to the Customer on request to enable the Customer to comply with Laws, policies and standards applicable to the Customer in relation to Customer Data including (without limitation) identifying, labelling, searching, reporting, copying, retrieving and modifying Customer
Data in relation to Personal Information, public records, right to information and information standards.
12. Where Requirements not met If any Requirements for the Goods and/or Services are not met, at the request of the Customer the Supplier will promptly:
(a) resupply the relevant Goods;
(b) re-perform the relevant Services; or
(c) refund the Customer any monies paid,
and the Customer may exercise any other right or remedy that it has under this Contract or otherwise.
If the Supplier fails to comply with its obligations under this clause, the Customer may have the Goods and/or Services re-supplied or re-performed by others, and the Supplier shall pay to the Customer on demand any costs incurred by the Customer in doing so. Acceptance of the Goods and/or Services by the Customer does not relieve the Supplier of any of its obligations under the Contract.
13. General The parties agree that:
(a) (communication) they will direct all inquiries relating to the Contract to the other party’s nominated contact person, or to another person if the other party directs;
(b) (variation) the Contract may only be varied by written agreement of authorized representatives of the parties;
(c) (entire agreement) this Contract sets out all the parties’ rights and obligations relating to the subject matter of the Contract, and it replaces all earlier representations, statements, agreements and understandings except as stated otherwise in this Contract. No other terms apply;
(d) (relationship) their relationship is of principal and contractor. This Contract does not create any partnership, joint venture or employment relationship. The Supplier must not represent itself or allow anyone else to represent that the Supplier is a partner, joint venturer, officer or employee of the Customer;
(e) (manufacturer warranties) the Supplier assigns any manufacturer’s warranty to the Customer, where possible to do so, and must inform the Customer where it is not possible to do so;
(f) (delivery) the Supplier must deliver the Goods or other relevant Deliverable's to the Site in accordance with the Customer’s instructions. If the Supplier asks, the Customer will confirm in writing that the Deliverable's have been received;
(g) (packaging) the Supplier must adequately pack and protect Goods to withstand transit and storage, and provide a packing note with the Goods;
(h) (rejected Goods) if the Customer rejects Goods, and the Supplier does not repossess the rejected Goods within 30 days of notice of rejection, the Customer may sell or dispose of the Goods, at the Customer’s cost;
(i) (risk) risk will transfer to the Customer when the Goods are delivered to the delivery address specified in writing by the Customer, in accordance with the delivery instructions.
(j) (title) title in the Goods and Deliverable's will transfer on the earlier of the delivery or payment of the applicable Price;
(k) (no encumbrance) the Supplier warrants that the Goods are not (and when title passes, will not be) subject to any encumbrance or interest, except for an encumbrance or interest which arises by operation of a Law that cannot be excluded by contract; and
(l) (right to publish) the Customer may publish information about the Contract on the Government’s contract directory, where required or recommended by Government procurement policy, or as required under the Right to Information Act.
14. If Contract under SOA
(a) If this Contract is entered pursuant to a SOA the Customer may terminate the Contract for cause immediately on written notice to the Supplier if the Principal is entitled to terminate the SOA or if any customer (including the Customer) is entitled to terminate for cause any other contract entered under the SOA.
(b) Unless otherwise specified in the Basic Order, all the terms and conditions of this Contract (including this clause) will survive termination or expiry of the SOA, for any reason.