Trading+Agreement+Template

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Insert State/Territory Emblem

Trading AgreementTrading Agreement

This Trading Agreement is the GeneralThis Trading Agreement is the General Conditions of ContractConditions of Contract

Insert Name of Organisation, andGoodServicess Required - Where Applicable

Version 1.0

JuneApril 20034

Trading Agreement 1



TABLE OF CONTENTS

PART 6 DRAFT CONTRACT.........................................................................................................5

1 Recitals...........................................................................................................................................6

2 Agreed Terms: Definitions and Interpretations...........................................................................6

3 Construction.................................................................................................................................10

4 Term.............................................................................................................................................10

5 No Assignment.............................................................................................................................11

6 Survival........................................................................................................................................11

7 Stamp Duty...................................................................................................................................11

8 Supply of GoodsServices.............................................................................................................11

9 Delivery/Receipt of Goods...........................................................................................................12

109 Acceptance of GoodServicess...................................................................................................12110 Quality of ServicesGoods..........................................................................................................14

11 Ownership of Contract Material................................................................................................15

12 Ownership of Goods...................................................................................................................15

132 Warranties and Guarantees.....................................................................................................16

143 Amounts Owing To Be Deducted From Moneys Due.............................................................16

154 Code of Conduct ......................................................................................................................16

165 Payment.....................................................................................................................................16

176 Price .........................................................................................................................................17

187 Price Variations........................................................................................................................17

198 Intellectual Property Rights.....................................................................................................17

1920 Confidential Information ......................................................................................................19

2120 Reporting Against Key Performance Indicators...................................................................19

221 Conflict Of Interest...................................................................................................................19

232 Indemnity..................................................................................................................................20

243 Insurance..................................................................................................................................20

254 Publicity....................................................................................................................................20

265 Dispute Resolution....................................................................................................................22

276 Termination..............................................................................................................................22

287 Termination By The Contractor..............................................................................................23

298 Notices.......................................................................................................................................23

3029 Public Disclosure Of Contract Information .........................................................................24

310 Occupational Health And Safety.............................................................................................24

321 Force Majeure .........................................................................................................................24

332 Modification Or Amendment...................................................................................................24

343 Severance..................................................................................................................................25

Trading Agreement 2



354 Waiver.......................................................................................................................................25

365 Applicable Law.........................................................................................................................25

376 Jurisdiction Of Courts..............................................................................................................25

387 Signatories................................................................................................................................26

Trading Agreement 3



PART 6PART 6

DRAFT TRADING AGREEMENTDRAFT TRADING AGREEMENT

This agreement is the only Trading Agreement General Conditions

between the State and the supplier requiring the signature of both parties.

Contracts, Standing Offers, etc. will require formal notification

specific to the Special Conditions

only without the need for signature by both parties.

Notes to Tenderers

1 This document is DRAFT ONLY, prepared on behalf of the Contract Authority for the purposesof assisting the Contract Authority in the procurement of services. The Contract Authority willnot be legally bound by it until a final copy is signed by the parties. Any actions taken inanticipation of signing is at the risk of the party taking them.

2 The partner document to this agreement is the specific Request for Tender document, whichcontains the Special Conditions.

Trading Agreement 4



PART 6 DRAFT CONTRACT

DEPARTMENT OF (insert )

EXAMPLE 1 ONLY

THIS AGREEMENT is made the day of 2001

BETWEEN:

THE MINISTER FOR ( INSERT TITLE ) a body corporate pursuant to (add legal description)

AND

[INSERT] (A.C.N. [INSERT]) of [INSERT] (“Contractor”)

[THERE IS NO REQUIREMENT TO COMPLETE THIS FIELD AT THE TIME OF RESPONDING]

EXAMPLE 2 ONLY

THIS AGREEMENT

DATED this _______________________ Day of __________________________ 200__

BETWEEN

THE STATE OF (insert ) through the (add legal description)

AND

trading as (if applicable)

and having its Contract Authority place of business at

(in this Agreement called “the Contractor”)

___________________________________________________________________

Trading Agreement 5



1 RECITALS

a) ( Name of State Health Department/Authority) may from time to time wish to place orderson the Contractor for the supply of goods and services.

b) These parties wish to record their agreement about incorporating ( Name of State Health

Department/Authority General Conditions of Contract into certain contracts.c) The Contractor has agreed to supply the goods services in accordance with the terms and

conditions in this Trading Agreement General Conditions and those specified in the SpecialConditions.

2 AGREED TERMS: DEFINITIONS AND INTERPRETATIONS

Term Definition and Interpretation

Acceptance DateThe date on which the GoodsServices are accepted by the Contract

Authority in accordance with the relevant Special Conditions.

AgreementThis Trading Agreement General Conditions for the supply of GoodsServices between the Contract Authority and the Contractor.

ANTS GST Act The A New Tax System (Goods and Services Tax) Act 1999.

CommencementDate

The date specified in the relevant Special Conditions.

Completion Date The date specified in the relevant Special Conditions.

ConfidentialInformation

Any information or data, including Personal Information, whether or notin a material form, which is confidential to a party including confidentialinformation acquired, collected or developed for the purposes of thisAgreement or obtained during the currency of this Agreement, except thatwhich is already in the public domain otherwise than as a result of a

breach of this Agreement.

Sensitive information, of either party, not already in the public domainand not available from any other source, the publication of which couldadversely affect either party.

Contract The agreement between the Contract Authority and the Contractor.

ContractAuthority

A (insert names eg department, agency, Health Unit ), statutory authorityof the Contract Authority or other bodies as approved by the ContractAuthority from time to time.

(Each jurisdiction to provide their own legal description).

ContractAuthority’sRepresentative

The person so identified in the relevant Special Conditions.

Contractor’sRepresentative

The person so identified in the relevant Special Conditions.

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Contract Material

(i) any material forming part of or constituting a deliverable that iscreated, written or otherwise brought into existence by or on behalf of theContractor in the course of performing the Services (called “new contractmaterial”);

(ii) any material that exists at the commencement date and is incorporatedinto a deliverable (called “existing contract material”);

DefectiveGoodsContractMaterial

Any GoodsContract Material which areis found to contain defects or imperfections or any non-compliance with the Specification at any time

prior to the expiry of the Warranty Period which applies to those ContractMaterial Goods.

Force Majeure

a) An act, omission or circumstance over which a Party could notreasonably exercise control which affects the ability of that Partyto perform its obligations; and

b) In the case of the Contractor, includes any delay by a

sub-Contractor of the Contractor, but only if that delay is beyondthe reasonable control of that sub-Contractor.

Free Into Store(FIS)

No additional costs incurred above the contracted price.

Goods

Goods, supplies or requisites. Without limiting the generality of theexpression, plant, machinery, motor vehicles, tools, furniture, floor coverings, office equipment, scientific apparatus, appliances and

provisions.

GST The tax imposed under the ANTS GST Act.

GST Act A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended.

Insolvency Event

a) An administrator is appointed to the Contractor or action is takento make that appointment;

b) The Contractor resolves to be wound up;c) An application is made to a court for an order or an order is made

that the Contractor be wound up (whether on grounds of insolvency or otherwise);

d) the Contractor ceases to carry on business;

e) A receiver or a receiver and manager of property of the Contractor is appointed whether by a court or otherwise;

f) An application is made to a court for an order appointing aliquidator or provisional liquidator in respect of the Contractor or one of them is appointed, whether or not under an order;

g) The Contractor enters into a compromise or arrangement with itscreditors or a class of them; or

h) The Contractor is or states that it is unable to pay its debts as andwhen they fall due.

Trading Agreement 7




IntellectualProperty Rights

Any patent, copyright, trademark, trade name, design, trade secret, knowhow or other form of confidential information, or any right to registrationof such rights and any other form of intellectual property right whether arising before or after the execution of this Agreement.

NoticeA notice or a consent, approval or other communication required to be inwriting under this Agreement.

Price The price for the Items described in the relevant Special Conditions.

Purchase CardThe (insert card name) or other Contract Authority-nominated credit cardmade available to Purchasers from time to time through a whole of Government contract.

Related” and“Subsidiary

When used to describe a corporation, have the same meanings as in theCorporations Act 2001.

Request for Tender [RFT]

The partner document to this Trading Agreement document, that definesthe GoodsServices that the Contract Authority requires Tenderers tosupply.

Schedule A schedule to this Agreement.

SpecialConditions

Any Special Conditions stated as part and parcel of the Contract. In theevent of any inconsistency between sections, the Special Conditions

[unless the Contract otherwise provides] shall prevail.Special conditions include any contract, standing offer, purchase order or similar Special Conditions for the supply of goodsservices to the ContractAuthority by the Contractor.

SpecificationsThe specifications for the Items listed in the relevant Special Conditionsas changed (if at all) by the Contract Authority when placing an order.

Tenderer

A person, company or organisation that responds to this Request for Tender.

The person, body or company who offers to supply goodsservices whichare subject to this Contract.

Term The period referred to in Clause 4.

TGATherapeutic Goods Administration, a division of the AustralianGovernment Department of Health and Ageing

TradingAgreement

This Trading Agreement document is the General Conditions of contract.

Unacceptable use- by-date

A date by which, in the normal course of events, the GoodsContractMaterial bearing the date could not be used within the ContractAuthority’s usual stock turnover rate.

Trading Agreement 8




Warranty The period set out in Clause 4 (refer also to Clause 13).

Trading Agreement 9



3 CONSTRUCTION

3.1 Subject to any inconsistency of subject or context, the following rules of construction will be used to interpret this Agreement:

a) any word importing the plural includes the singular and vice versa;

b) any word importing a gender includes all other genders;c) a reference to a body corporate includes a reference to natural persons or other forms of

associations and vice versa;d) a reference to a Recital, Clause, Schedule or Annexure is a reference to a recital, clause,

schedule or annexure of this Agreement;e) the captions, headings, section numbers and clause numbers appearing in this Agreement

are inserted only as a matter of convenience and in no way affect the construction of thisAgreement;

f) a reference to a statute includes all statutes amending, consolidating or replacing thestatute.

3.2 Documents comprising this AgreementThis Agreement incorporates any schedule and annexure attached to it. In resolvinginconsistencies in this Agreement:

a) this Agreement (excluding its Schedules); b) Special Conditions;c) its Schedules; andd) any Annexures to the Schedules

have priority, in that order.

3.3 Relationships

a) Nothing in this Agreement should be construed to create any fiduciary relationship between the parties or any relationship of employer and employee, Contract Authorityand agent or partnership between the Contract Authority and:

• the Contractor;• the Nominee; or

• any Contractor Staff.

b) In their dealings with third parties, neither the Contract Authority, on the one hand, nor the Contractor or any Contractor Staff on the other hand, have the authority to bind the

other party in any manner whatsoever, except with the prior written approval of the other party.

4 TERM

4.1 This Agreement commences on the Commencement Date and expires on theCompletion Date unless:

a) that period is extended by agreement between the parties; or b) either party exercises its right to terminate this Agreement under clauses 27 or 28,

however that right arises; or

c) parties agree there is no completion date.

Trading Agreement 10



4.2 The Contract Authority may extend the period of operation of this Agreement for a further period (as specified in the Schedules) or part thereof by giving written notice to theContractor at any time before Completion Date. An extension of this Agreement will be onthe same terms and conditions as are contained in this Agreement except that the ContractAuthority will not have any right to extend the operation of this Agreement by a further

period unless the Contractor agrees.

5 NO ASSIGNMENT

5.1 Except with the prior written consent of the Contract Authority, the Contractor shall notassign or encumber any of its rights or obligations under this Agreement.

5.2 Unless otherwise agreed, an amendment to this Agreement will not affect any contractualarrangements entered into prior to the amendment taking effect.

6 SURVIVAL

6.1 Any obligation imposed by this Agreement in relation to Intellectual Property Rights,insurance, indemnity and publicity shall survive the expiry or termination of thisAgreement.

7 S TAMP DUTY

7.1 The Contractor shall pay all Stamp Duty, if any, in connection with the relevant SpecialConditions.

8 SUPPLY OF GOODSSERVICES

8.1 Contractor Obligations, the Contractor shall:

a) supply the GoodsServices on the terms and conditions set out in the relevant SpecialConditions and free from encumbrance;

b) have sufficient resources to provide the services in a timely manner during the currencyof the Agreementdeliver the Goods to the delivery point on or, if requested, before thedelivery date;

c) comply with all delivery timeframes specified in the relevant SpecialConditionsschedules; and

d) provide the Support Services (if any);e) install the Goods at the delivery point, if specified;

f) provide the Goods ready for use by the Commencement Date, upon the terms andconditions of the relevant Special Conditions ; and

g) provide all other material or information specified in the relevant Special ConditionsaPurchase Order .

8.2 Unfilled Orders

8.2.1 All orders placed during the period of the relevant Special Conditions shall befulfilled. The Contracting Authority reserves the right to cancel any orders notfulfilled during the period of the relevant Special Conditions.




8.3 Failure to Supply

8.3.1 Where the Contractor is unable or fails (for whatever reason) to nd provide theGoodsServices at any time or in any place the Contracting Authority may without

being liable in any way to the Contractor obtain or acquire such GoodsServices as itrequires at that time or in that place (as the case may be) from any other source,

Contractor or provider thereof. Any additional expense incurred by the ContractingAuthority by reason of its exercise of the powers conferred by this clause shall be adebt due from the Contractor to the Contracting Authority.

8.4 Removal of Goods Rejected or Delivered in Error

8.4.1 Goods rejected by the Contracting Authority or delivered in error are to be removed by and at the expense of the Contractor within seven days of notification. TheContracting Authority may arrange the removal of such goods should the Contractor fail to do so and charge the Contractor with all expenses incurred in such removal.

8.5

4 Intellectual Property Terms and Conditions

8.5

4.1 The terms and conditions specified in the relevant Special Conditions applywhenever the Contractor grants to the Contracting Authority a licence to useIntellectual Property Rights under this Agreement.

9 DELIVERY/RECEIPT OF GOODS

9.1 The Contractor shall deliver all Goods ordered FIS to the delivery points specified at thetime of placing the order. No liability to pay for Goods delivered shall arise until the

Goods are received and accepted by the Contracting Authority in good order and condition.

9.2 Delivery time shall be as tendered and stated in the Notification of Acceptance if applicableor as otherwise agreed between the Contractor and the Contracting Authority at the time of

placement of an order.

10 9 ACCEPTANCE OF GOODSERVICE S S

109.1 The completion of Servicesdelivery and receipt of Goods shall not of itself constitute acceptance of the GoodsServices by the Contracting Authority.

10.2 The risk of any damage, deterioration, theft or loss of the Goods after delivery but prior toacceptance shall remain with the Contractor until the Goods have been accepted. TheContract Authority undertakes to take appropriate measures to ensure the integrity of goodsup to the time of acceptance.

10.3 The Contracting Authority may within (Insert Number) Business Days following theDelivery Date, or as specified in the relevant Special Conditions, perform such AcceptanceTests, as the Contracting Authority deems necessary to ensure that the Goods conform tothe requirements of the Specifications.

109.42 The Contracting Authority will provide notice in writing to the Contractor of any

failure to provide the ServicesDefective Goods or non-compliances.




10.5 If the Contracting Authority is unable to complete any Acceptance Test due to a Defect inany Good:

a) the Contracting Authority will provide notice of the Defect and the ContractingAuthority’s inability to complete the Acceptance Testing; and

b) the period of time in which Acceptance Testing must be completed will be extended asnecessary for the Contracting Authority to complete all Acceptance Tests which theContracting Authority deems necessary.

10.6 The Contractor must rectify any defect within the period specified in therelevant Special Conditions.

10.7 If the contractor fails to rectify the defects in accordance with sub clause 9.6:

a) The Contracting Authority may seek authorisation to appropriately rectify such defectsitself or contract with any other person to rectify the defects; and

b) The Contractor shall reimburse the Contracting Authority for all costs incurred inrectifying the defects.

10.8 The Contracting Authority may repeat the Acceptance Tests and requirerectification work to be carried out by the Contractor as many times as is necessary inorder to ensure that the Goods conform to the Specifications.

109.93 The Contracting Authority will accept the ServicesGoods by providing notice inwriting to the Contractor once the Contracting Authority is satisfied that the ServicesGoodsconform to the Specification. The date specified in the notice is the Acceptance Date.

109.10

4 Acceptance of the GoodsServices by the Contracting Authority does not relieve theContractor of its obligations or warranties under this Agreement.

10.11 If the Goods are not accepted by the Contracting Authority for failure to conform to theSpecification, then the Contractor must forthwith upon request by the Contracting Authorityremove the Goods from the delivery point. If the Contractor fails to comply with suchrequest, then the Contracting Authority may at the Contractor’s cost:

a) return the Goods to the Contractor; or b) move them to another place for storage,

109.125 If the Contracting Authority does not accept the ServicesGoods, theContractor must within (the period specified in) the relevant Special Conditions, supplyGoodsServices that comply with this Agreement, or the Contracting Authority mayterminate this Agreement at its option.

10.13 The Contracting Authority shall be deemed to have accepted the Goods when theContracting Authority notifies the Contractor that the Goods have been accepted, or when,after the lapse of (the period specified in) the relevant Special Conditions from the date of delivery of the Goods, the Contracting Authority retains the Goods without notifying theContractor that the Goods have been rejected.




11 0 QUALITY OF SERVICESGOODS (Identical to RFT Clause 31).

10.1 All Services supplied shall be to a standard acceptable to the Contracting Authorityand shall conform to the Specification and the standards specified in the SpecialConditions or to samples supplied.

10.2 Where no standards are specified in the Special Conditions, the Services shallcomply with the appropriate and current standard of the Standards Association of Australia and if there is no such standard then such other standard as the ContractingAuthority may consider appropriate.

10.3 If no standards are applicable the Services supplied shall be of the best of their several kinds and materials, standards of construction and capacity for performance,as the case may be, and shall be of a kind which is suitable for their purpose asstated in the Agreement and which is consistent with the nature and character of Services fully capable of the intended use to which the Services are to be put.

10.4 Where applicable the Contractor is obliged to ensure the conduct of all quality

control testing of products is in accordance with the appropriate requirements -TGA’s Code of Good Manufacturing Practice, uniform recall procedures for therapeutic goods, or other applicable standards required by legislation prior toreleasing them for sale. Where requested, the Contractor is to provide a copy of theanalytical report to accompany the specific batch of the product supplied.

10.5 For therapeutic goods provided as part of the Services, the Contractor shall berequired to comply with the TGA’s Uniform Recall Procedures for TherapeuticGoods.

10.6 All Contract Material supplied as part of the Services shall be in new and unusedcondition and of recent origin, unless the Special Conditions specifies otherwise.

Such Contract Material shall not be of inferior quality or improper description. If this condition is not satisfied the Services may be rejected and the SpecialConditions repudiated at the discretion of the Contract Authority.11.1 AllGoods supplied shall be to a standard acceptable to the Contracting Authority andshall conform to the Specification and the standards specified in the SpecialConditions or to samples supplied.

11.2 Where no standards are specified in the Special Conditions, the Goods shallcomply with the appropriate and current standard of the Standards Association of Australia and if there is no such standard then such other standard as the Contracting

Authority may consider appropriate.

11.3 If no standards are applicable the Goods supplied shall be of the best of their several kinds and materials, standards of construction and capacity for

performance, as the case may be, and shall be of a kind which is suitable for their purpose as stated in the Agreement and which is consistent with the nature andcharacter of Goods fully capable of the intended use to which the Goods are to be

put.

11.4 Where applicable the Contractor is obliged to ensure the conduct of all quality

control testing of products is in accordance with the appropriate requirements -TGA’s Code of Good Manufacturing Practice, uniform recall procedures for therapeutic goods, or other applicable standards required by legislation prior to




releasing them for sale. Where requested, the Contractor is to provide a copy of theanalytical report to accompany the specific batch of the product supplied.

11.5 For therapeutic goods the Contractor shall be required to comply with theTGA’s Uniform Recall Procedures for Therapeutic Goods.

11.6 All Goods supplied shall be in new and unused condition and of recentorigin, unless the Special Conditions specify otherwise. Goods shall not be of inferior quality or improper description. If this condition is not satisfied the Goodsmay be rejected and the Special Conditions repudiated at the discretion of theContract Authority.

11.7 If the Goods are not accepted by the Contracting Authority for failure to conform tothe Specification, then the Contractor must forthwith upon request by theContracting Authority remove the Goods from the delivery point. If the Contractor fails to comply with such request, then the Contracting Authority may:

return the Goods to the Contractor; or

move them to another place for storage, at the Contractor’s cost.

1 1 OWNERSHIP OF CONTRACT MATERIAL

11.1 Title to and ownership of the Contract Material shall pass to the ContractingAuthority upon acceptance of the Contract Material, or upon payment for the

Services, if such payment is made prior to acceptance of the Services. Payment shallinclude credit by way of set-off.

12 OWNERSHIP OF GOODS

12.1 Title to and ownership of the Goods shall pass to the Contracting Authorityupon acceptance of the Goods, or upon payment for the Goods, if such payment ismade prior to acceptance of the Goods. Payment shall include credit by way of set-off.




13 2 WARRANTIES AND GUARANTEES

132.1 The Contractor shall guarantee the GoodsServices, and all options andaccessories, against faulty workmanship and materials for twelve months or for the

period of warranty offered by the manufacturer of the Goods, whichever is the longer ,except as otherwise specified in the Special Conditions.

13.2 Defective Goods shall be returned to the Contractor at the Contractor’s expense, and shall be replaced by the Contractor within seven days unless alternative arrangements are agreedto, in writing, between the parties.

14 3 AMOUNTS OWING TO BE DEDUCTED FROM MONEYS DUE

143.1 All damages, losses, charges or expenses incurred by the Contract Authority,which are chargeable to or recoverable from the Contractor, may be deducted frommoneys due or to become due to the Contractor and shall be a debt due from theContractor to the Contract Authority, and may be recovered from the Contractor in

any Court of competent jurisdiction.

143.2 The costs of repairing, replacing or making good all or any damage caused by theContractor or the Contractor’s employees to the property of the Contract Authority shall be

borne by the Contractor.

15 4 CODE OF CONDUCT (Refer to Special Conditions - Jurisdictions will insert own clause, or delete).

15

4.1 The Contract Authority’s employees are bound by a “Code of Conduct ” that requires probity in all dealings including those conducted with Contractors. The Contract Authority

has adopted the Code to ensure that functions are undertaken efficiently, impartially andwith integrity.

15

4.2 Contractors agree to report any reasonably held suspicion of fraudulent activity against theContract Authority, arising out of or connected with this Contract, to the ContractAuthority.

16 5 PAYMENT

165.1 Subject to this clause, the Contract Authority (or an entity approved by the ContractAuthority) is liable to pay the prices for GoodsServices supplied and accepted in accordance

with this Agreement and the relevant Special Conditions within within (the specified number of ) days of valid Tax Invoice.

165.2 The Contract Authority (or an entity approved by the Contract Authority) is not obliged tomake any payment under this Agreement unless the ContractorSupplier has provided acorrectly rendered Tax Invoice in respect of that payment.

165.3 The Contract Authority (or an entity approved by the Contract Authority) may deduct anyamount owed to the Contractor by the Contract Authority (or an entity approved by theContract Authority) or any other Contract Authority under this Agreement.




17 6 PRICE

17

6.1 Fixed prices are required for the term of the contract unless otherwise agreed between the parties in the relevant Special Conditions, and in relation to price variations in Clause 18.

17

6.2 Any charge not stated in the Special Conditions as being additional, will not be allowed as a

charge against any transaction under the Special Conditions.

18 7 PRICE VARIATIONS

187.1 This clause shall only apply if the Contractor’s tender has been accepted by the ContractAuthority on the basis that Contract prices are variable.

187.2 The Contractor shall advise the Contract Authority in writing of any decrease in the costs of the Servicesgoods being supplied and shall pass on those cost reductions within 14 days of

becoming aware of those cost decreases. Reductions shall be notified to the ContractAuthority in writing.

187.3 Applications for increases in Contract rates shall be submitted in writing to the ContractAuthority, along with documentary evidence to justify the variation (eg cost of materials,direct labour, overheads, profit), as far in advance as practicable of the date from which thevariation is to be claimed. Variations may only be allowed for price movements which areoutside the control of, and which could not have been known for certain by, the Contractor at the time of tendering. Any increase granted shall operate not less than 14 days from thereceipt of satisfactory documentary evidence. The Contract Authority may not consider applications for retrospective increases.

187.4 The Contract Authority reserves the right, upon receipt of any application, to grant or refuse

it in whole or in part in its absolute discretion or to suspend or terminate the Agreement and purchase from another source without infringement of the Agreement whilst the applicationis being considered.

19 8 INTELLECTUAL PROPERTY RIGHTS

198.1 Subject to this clause, the Contract Authority will own all Intellectual Property Rights in allthings produced by the Contractor arising out of, or in respect of, this Agreement.

198.2 The Contract Authority does not own:

a) the Contractor’s Intellectual Property Rights in existence at, or prior to, the date of thisAgreement; or

b) copyright in existing publications or other work produced by or on behalf of theContractor prior to, or otherwise than in, the course of performing its obligations under this Agreement.

198.3 The Contractor must not infringe the intellectual property rights of any person in performing its obligations under this Agreement.




198.4 The Contractor shall indemnify and keep indemnified the Contract Authority against allcosts, expenses and liabilities whatsoever arising out of, or in connection with, any claimthat the provision of the GoodsServices by the Contractor infringes the Intellectual PropertyRights of any person.

198.5 If it is determined by any independent tribunal of fact or law, or if it is

agreed between the parties to a dispute, that an infringement of Intellectual PropertyRights has occurred, the Contractor must at its own expense:

a) obtain for the Contract Authority the right to continue using the Contract MaterialGoods; b) modify or replace the Contract MaterialGoods (without detracting from their overall

performance) so as to avoid the infringement, and compensate the Contract Authority for the amount of any direct loss or damage sustained or incurred by the Contract Authorityduring, or as a result of, such modification or replacement); or

c) if the solutions in either of the two preceding paragraphs cannot be achieved onreasonable terms:

• remove the Contract MaterialGoods from the delivery point;

•refund the moneys paid for the GoodsContract Material; and

• pay to the Contract Authority the amount of any direct loss or damage sustained as aresult of such removal;

provided that the Contract Authority, in its sole discretion, may determine that it isnecessary to retain and continue to use the GoodsContract Material and any paymentsrequired to be made to a third party as a consequence of this action shall be reimbursed bythe Contractor to the Contract Authority.

198.6 The Contractor shall effect and maintain insurance against the risks referredto in this clause and will on request by the Contract Authority produce to the Contract

Authority written evidence of the currency of such insurance.

198.7 For the purposes of this Clause, “infringement” includes unauthorised acts which would, but for the operation of the Section 163 of the Patents Act 1990 (Cth), Section 40A of theDesigns Act 1906 (Cth) and Section 183 of the Copyright Act 1968 (Cth) constitute aninfringement.

198.8 In the event of any claim being made or brought against the Contract Authority in respect of any of the matters stated in this clause, the Contractor shall be immediately notified thereof.The Contractor shall, with the assistance if required of the Contract Authority, but at theContractor’s sole expense, conduct all negotiations for the settlement of the same or any

litigation that may arise therefrom and in the event of the failure by the Contractor so to do,the Contract Authority shall have the power to suspend payment of any money due to theContractor under the Agreement until such claim has been satisfied, settled or withdrawn.Any such claim which has not been satisfied or withdrawn at the date when the Agreementwould otherwise have been completed shall be a debt due by the Contractor to the ContractAuthority.




19 20 CONFIDENTIAL INFORMATION

2019.1 If the Contract Authority discloses Confidential Information to theContractor, the Contractor must not use or disclose the Confidential Informationwithout first obtaining the Contract Authority’s written consent.

2019.2 There will be no breach of obligations by the Contractor if the ConfidentialInformation is legally required to be disclosed or permitted to be disclosed by thisAgreement.

2019.3 The Contractor may disclose Confidential Information to its Personnel if:

a) the Personnel need to know the information for the performance of duties under thisAgreement;

b) the Contractor first makes the Personnel aware of the confidential nature of theConfidential Information; and

c) the Contractor requires the Personnel to treat the information confidentially.

2019.4 When the Contractor is aware of any steps being taken, or considered, tolegally compel the Contractor or the Personnel to disclose Confidential Information,the Contractor shall:

a) to the extent legally permitted, defer and limit the disclosure with a view to preservingthe confidentiality of the Confidential Information as much as possible;

b) promptly notify the Contract Authority; andc) do anything reasonably required by the Contract Authority including the institution and

conduct of legal proceedings at the Contract Authority’s direction and expense to opposeor restrict that disclosure.

2019.5 The Contractor acknowledges that the Contract Authority may discloseConfidential Information:

a) to Parliament, the Governor, Cabinet or a Parliamentary or Cabinet committee or sub-committee;

b) to any agency, authority, instrumentality, Minister or officer of the State to whom it iscustomary for the Contract Authority to disclose the Confidential Information (whether or not the Contract Authority is legally obliged to do so); or

c) for the purposes of prosecuting or defending any legal proceedings.

21 20 REPORTING AGAINST K EY PERFORMANCE INDICATORS

210.1 The Contractor must comply with any Key Performance Indicators (KPIs) contained in therelevant Special Conditions.

210.2 Either Party may request a review of the KPIs at any time during the Term,and the Parties must negotiate in good faith to amend the KPIs.

210.3 If the Parties are unable to agree to amend the KPIs, then the KPIs described in the relevantSpecial Conditions will prevail.

210.4 The Contractor must provide the reports described in the relevant Special Conditions.

22 1 CONFLICT OF INTEREST




221.1 The Contractor must disclose in writing to the Contract Authority all actualand potential conflicts of interest that exist, arise or may arise (either for theContractor or any Contractor Staff) in the course of performing the Services as soonas practical after it becomes aware of that conflict.

23 2 INDEMNITY

232.1 The Contractor must indemnify and keep the Contract Authority indemnifiedfrom and against any cost, loss, expense, claim, demand, expense or liability of anykind in respect of:

a) loss of life, personal injury or disability; b) loss of or damage to property; or c) any other loss

arising directly or indirectly in relation to the supply of GoodsServices, except to the extentthat the loss is caused, or contributed to, by the Contract Authority or the Contract

Authority’s employees, agents or contractors. The indemnity shall be a continuingindemnity and shall survive the termination of the Agreement.

24 3 INSURANCE

243.1 The Contractor shall maintain in force at its own expense during the Termand with insurers satisfactory to the Contract Authority:

a) Public and Products liability insurance in the name of the Contractor, but also namingthe Contract Authority, for not less than (the amount specified in the relevant Special Conditions) for any one event (and in the aggregate for Products Liability in any one

policy period) or such other amount as the Contract Authority may reasonably require; b) Professional Indemnity insurance in the name of the Contractor for not less than (the

amount specified in the relevant Special Conditions) for any one event (and in theaggregate in any one policy period) or such other amount as the Contract Authority mayreasonably require.

c) Worker’s Compensation insurance in the name of the Contractor in relation to an yemployees of the Consultant for not less than (the amount specified in the relevant Special Conditions), including liability under statute and at common law

243.2 The Contractor will ensure that the insurance policy referred to in Clause(insert no,) is renewed and maintained until termination of this Agreement.

243.3 Before commencing work or the delivery of goods Services under this Agreement theContractor shall provide the Contract Authority with insurance certificates of currency for the insurances required in 24.1 and 24.1 .

243.4 The Contract Authority in specifying levels of insurance in this Agreement accepts noliability for the completeness of their listing, the adequacy of the sum insured, limit of liability, scope of coverage, conditions or exclusions of those insurances in respect to howthey may or may not respond to any loss, damage or liability.

243.5 The Contractor acknowledges and agrees that it is the Contractor’s responsibility to assess

and consider the risks and scope of insurances required under this Agreement.

25 4 PUBLICITY




25

4.1 The Contractor must not make or permit to be made a public announcement or mediarelease about any aspect of this Agreement or the Special Conditions without the ContractAuthority’s prior written consent.




26 5 DISPUTE RESOLUTION

265.1 Disputes in relation to this Agreement or the Special Conditions must be resolved inaccordance with this clause.

265.2 Either party may, in a case of genuine urgency, seek immediate interlocutory relief or aninterim remedy.

265.3 Subject to sub-clause 26.2 all disputes must be resolved as follows:

a) Each party must submit the dispute to one of its senior officers who has not previously been involved in the dispute (“Negotiators”) within 14 days of the dispute arising.

b) The Negotiators must meet as soon as practicable to resolve the dispute.c) If the Negotiators cannot resolve the dispute within [14] days of its reference to them,

each Negotiator must prepare a written summary of his or her attempts to resolve thedispute and immediately refer that summary to their Executive Negotiator as specified in

this Agreement or in the Special Conditions.d) The Executive Negotiators must meet as soon as practicable to resolve the dispute, but in

any case within [7] days of its reference to them. Each party must authorise and informits Executive Negotiator sufficiently so that he or she can undertake that meeting withoutdetailed reference to another person.

265.4 Notwithstanding the existence of a dispute each party must continue to perform its obligations under this Agreement.

265.5 This clause survives any expiry or termination of this Agreement.

27 6 TERMINATION

27

6.1 The Contract Authority may terminate the Agreement in whole or in part if the Contractor:

a) fails to deliver the ServicesGoods within the time specified in the Special Conditions or when ordered;

b) fails to provide GoodsServices that perform in accordance with the Contractrequirements and specification;

c) is in breach of any other term of the Special Conditions and has failed to remedy such breach within 30 days of being notified of details of the breach in writing by theContract Authority;

d) assigns its rights under, or sub-contracts the whole or part of, the Special Conditionswithout the written consent of the Contract Authority;

e) (if an individual) becomes bankrupt; or f) (if a corporation) goes into voluntary or compulsory liquidation or is placed under

official management or goes into receivership;g) makes an assignment of its estate for the benefit of its creditors, or makes an

arrangement or composition with its creditors;h) is convicted of any offence, which in the opinion of the Contract Authority is relevant to

the discharge of its obligations under the Contract; or i) commits a breach of the Code of Conduct and/or Ethics, where appropriate.




27

6.2 In the event that the Agreement is terminated pursuant to Clause 27.1:

a) all losses that have been incurred by the Contract Authority as a result of the terminationshall be recoverable by the Contract Authority from the Contractor;

b) the Contract Authority will not be liable to pay any compensation to the Contractor;c) the Contract Authority may cease to make any payments to the Contractor under that

Contract;d) the Contract Authority may recover from the Contractor all sums paid for undelivered

GoodsServices and/or Contract Material.

28 7 TERMINATION B Y THE CONTRACTOR

287.1 The Contractor may terminate the Agreement by notice to the Contract Authority if:

a) the Contract Authority has failed to make a payment in breach of clause 16, except withrespect to any payment or portion that the Contract Authority disputes under clause 26;and

b) the breach in clause 28.1 (a) is not remedied within thirty (30) days of receipt of a noticefrom the Contractor.

29 8 NOTICES

298.1 A notice must be in writing and signed by or on behalf of the sender,addressed to the recipient and:

a) delivered by hand to the recipient’s address; b) sent by pre-paid mail to the recipient’s address;c) delivered by courier to the recipient’s address;

d) transmitted by facsimile to the recipient’s address; or e) transmitted by email to the recipient’s email address.

298.2 A notice given to a person in accordance with this clause is treated as having been given and received:

a) on the day of delivery if delivered before 5.00pm on a business day, otherwise on thenext business day;

b) if delivered by courier and evidence is produced to that effect, at the time of delivery;c) if sent by pre-paid mail, in due course of the post;d) if transmitted by facsimile and a correct and complete transmission report is received on

the day of transmission, on that day if the report states that transmission was completed before 5.00pm on a business day, otherwise on the next business day; or

e) if transmitted by email at the time received by the recipient’s computer.

298.3 The address, facsimile number and email address of a person are those setout below that person’s name in the relevant Special Conditions.

298.4 A person may from time to time change its address or facsimile number bygiving written notice to the other party.




30 29 PUBLIC DISCLOSURE OF CONTRACT INFORMATION

3029.1 (Each jurisdiction insert own clause).

31 0 OCCUPATIONAL HEALTH AND SAFETY

310.1 To ensure compliance with the highest health and safety standards theContractor must ensure that:

a) the Contract MaterialGoods areis safe and without risk to health when properly used; b) the risks associated with manual handling of the GoodsContract Material during

delivery, transfer, use and disposal must, as far as possible, be minimised;c) the risks posed by the GoodsContract Material in association with exposure to blood and

other body fluids (either from needle-stick or other cutting injuries, or from splashing onto skin or muscular surfaces) are, as far as possible, minimised.

310.2 The contractor must provide, with the Contract MaterialGoods, all available

information regarding:

a) the purpose for which the Goods Contract Material areis designed; b) the results of any tests carried out on the GoodsContract Material;c) any conditions (i.e. environmental or procedural) necessary to ensure that, when put to

correct use, the Goods Contract Material will be safe and without risks to health; andd) instructions for correct use (including storage, use and disposal).

32 1 FORCE MAJEURE

321.1 Either party may terminate the Agreement by giving ten Business Days

notice to the other party where the performance of that party's obligations has becomeimpossible due to Act of God meaning for the purpose of the Agreement any naturalevent not being within the power of man to prevent or an event of Force Majeure

being for the purposes of the Agreement any event beyond the control of the partyseeking to rely on it and which renders it impossible for that party to performincluding fire, explosion, accident, industrial dispute, civil commotion or impossibility of obtaining materials but not an obligation to pay money.

321.2 If the Agreement is so terminated the Contract Authority shall only be liable to make payments pursuant to the provisions of clause 16 for Goods Services supplied before theeffective date of termination. The Contract Authority shall not be liable to make any other

payments whatsoever.

33 2 MODIFICATION OR AMENDMENT

332.1 Any modification of or amendment to this Agreement and/or the Special Conditions shall be in writing and signed by both parties.




34 3 SEVERANCE

343.1 If any provision or part of a provision of this Agreement is invalid or unenforceable in any jurisdiction:

a) the provision shall be read down for the purposes of the operation of that provision in

that jurisdiction, if possible, so as to be valid and enforceable; or b) if the provision:

• cannot be read down; and

• is capable of being severed without affecting the validity of this Agreement and/or theSpecial Conditions;

then the parties shall consult in good faith to determine whether any amendment or substituted provision is required.

35 4 WAIVER

35

4.1 A waiver of any provision of this Agreement and/or the Special Conditionsis ineffective unless it is in writing and signed by the party waiving its rights.

35

4.2 A waiver by either party in respect of a breach of a provision of this Agreement and/or theSpecial Conditions by the other party is not a waiver in respect of any other breach of thator any other provision.

35

4.3 The failure of either party to enforce at any time a provision of this Agreement and/or theSpecial Conditions shall not be interpreted as a waiver of such provision.

36 5 APPLICABLE LAW

365.1 This Agreement will be governed by, and construed in accordance with the law for the time being in force in (insert name of State or Territory), and the parties submit non exclusive tothe jurisdiction of the courts of that State.

37 6 JURISDICTION OF COURTS

37

6.1 The courts of (insert name of State or Territory) have exclusive jurisdiction to determineany proceeding in relation to this Agreement and/or the Special Conditions.

37

6.2 Any proceeding brought in a Federal Court must be instituted in the ( Insert name of State

or Territory) Registry of that Federal Court.

37

6.3 The Contractor undertakes not to apply to transfer any proceedings to another registry of the Federal Court.




38 7 SIGNATORIES

Example Only

The parties have executed this Agreement as follows –

SIGNED for and on behalf of the )

STATE/TERRITORY OF ( Insert name of State or Territory) by ))

)

)

) (Signature)

this day of , 200___ )

)

in the presence of : )

)

)

(Signature)

SIGNED for and on behalf of )

)

)

(Full Name of Contractor) ) by )

)

) __________________

(Full Name of Signatory) ) (Signature)

)

)

)

(Designation) )

)

who certifies that he/she has authority to so sign, )

)

this day of , 200___ )

)

in the presence of : )

)

)

(Signature)




EXECUTED AS AN AGREEMENTTHE COMMON SEAL of THE )

)MINISTER FOR (INSERT NAME) )

)was affixed here by ( Insert Name), Chief Executive of the )

of ( Insert Name of Contract Authority), who is duly authorised )in that regard: )

...........................................................................................Witness[Print Name: ]

THE COMMON SEAL of [INSERT](A.B.N [INSERT]) )

)was affixed here by . . . . . . . . . . . . . . . . . . . . . . . . . , )

)a duly authorised person in that regard, )

)in the presence of: )

[THERE IS NO REQUIREMENT TO COMPLETE THESE FIELDS AT THE TIME OF RESPONDING]

...........................................................................................Director

[Print Name: ]

...........................................................................................Director/Secretary[Print Name: ]


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