1. CONTRACT LENGTH
1.1 This Agreement commences on the Commencement Date and continues until either OSIT or the Supplier terminates the agreement in writing.
2. SUPPLY OF GOODS (if applicable)
2.1 If Goods are being supplied under this Agreement then the Supplier must:
(a) supply the Goods in accordance with this Agreement;
(b) sell the Goods without encumbrance;
(c) deliver the Goods to the agreed location on or before the required date;
(d) comply with OSIT’s reasonable directions and delivery instructions;
(e) if requested by OSIT, provide OSIT with material safety data sheets with respect to the Goods delivered;
(f) provide test evidence for the Goods if required; and
(g) if indicated in a quote or proposal, install the Goods on or before the agreed date.
2.2 If the Supplier cannot comply with any of its obligations under clause 2.1, the Supplier must notify OSIT in writing immediately.
3. INSPECTION AND ACCEPTANCE OF GOODS (if applicable)
3.1 The OSIT may inspect the Goods to determine whether to accept or reject the Goods.
3.2 OSIT must accept the Goods if they conform with the requirements as set out in the quote or proposal.
3.3 Subject to clause 3.4, the Goods are deemed to be accepted either:
(a) on delivery, if the OSIT notifies the Supplier that it accepts the goods; or
(b) if no notice is issued by the OSIT, then 5 Business Days after delivery of the Goods to the Delivery Point.
3.4 If the Goods are consumable products and the Goods are found to be defective when first used, then the OSIT may reject the Goods under clause 3.5.
3.5 If the OSIT rejects the Goods due to non-conformity with the requirements of this Agreement, then the OSIT must notify the Supplier as soon as possible and require the Supplier at its sole cost, and at the OSIT’s election to either:
(a) resupply the Goods and remove the non-conforming Goods from the Delivery Point; or
(b) repair the Goods.
3.6 Acceptance of the Goods does not relieve the Supplier of any of its obligations under this Agreement.
3.7 The Supplier bears the risk in the Goods until delivery to the Delivery Point. Title in the Goods will pass to the OSIT upon the OSIT’s acceptance of the Goods.
4. WARRANTY PERIOD (if applicable)
4.1 If during the Warranty Period the Goods fail to comply with the warranties in clause 8.1 then the OSIT may in its absolute discretion require that the Supplier at its expense:
(a) replace the Goods within 10 Business Days of notification by the OSIT (or such other time as is agreed); or
(b) refund the Price.
5. SUPPLY OF SERVICES (if applicable)
5.1 If Services are being supplied under this Agreement then the Supplier must ensure that the Supplier’s Personnel provide the Services described in specific proposal or quote in accordance with the terms and conditions of this Agreement.
5.2 The Supplier must ensure that Services are delivered:
(a) to a standard that meets or exceeds the Service Levels;
(b) in accordance with the warranties in clause 8.4; and
(c) by any Milestone Dates.
5.3 OSIT’s remedies for the Supplier’s failure to meet a Service Level or for a breach of a warranty, includes resupply of the Services, a reduction of the price, termination, rebates or any other remedy deemed fair and appropriate by OSIT.
6. REPORTS AND MANUALS (if applicable)
The Supplier must provide those reports, manuals or other materials as specified in specific proposal or quote.
7. SERVICE VARIATION (if applicable)
7.1 If the OSIT wishes to vary the scope of the Services (“Variation”), it must issue a written request to the Supplier and the Supplier must within 5 Business Days (or such other period as agreed) provide a written quote (“Quote”) setting out:
(a) any impacts on the timing of or completion of tasks;
(b) the varied price and payment arrangements; and
(c) any changes to the terms that apply to the performance of the Services.
7.2 The Parties must negotiate in good faith to agree on the price and other terms applicable to the Variation.
7.3 If the Parties agree in writing to the terms of the Variation then:
(a) the Supplier must perform the Services as varied by the Variation;
(b) the OSIT must pay the varied price;
(c) the terms and conditions of the Agreement are varied by the terms of the Variation.
8. SUPPLIER’S WARRANTIES
8.1 If Goods are being supplied under this Agreement then the Supplier warrants that it has good and unencumbered title to the Goods and the Goods:
(a) conform with any description applied and any sample provided by the Supplier;
(b) are new (unless otherwise specified);
(c) are free from defects in materials, manufacture and workmanship;
(d) conform to any applicable Australian Standards or other standards nominated in this Agreement;
(e) conform to the Specifications and any technical Specifications provided by the Supplier;
(f) are of merchantable quality;
(g) are installed correctly (if the Supplier is responsible for installation);
(h) are fit for their intended purpose; and
(i) are manufactured and supplied without infringing any person’s Intellectual Property Rights.
8.2 The Supplier must ensure that OSIT receives the full benefit of any manufacturer’s warranties in respect of the Goods.
8.3 During any Warranty Period any defects in the Goods must be rectified at the Supplier’s expense.
8.4 If Services are being supplied under this Agreement then the Supplier warrants that the Services will:
(a) comply with the description of the Services in specific proposal or quote;
(b) be provided with due care and skill;
(c) be provided in a timely and efficient manner;
(d) be provided in accordance with the best practices current in the Supplier’s industry;
(e) be supplied without infringing any person’s Intellectual Property Rights;
(f) be performed by the Supplier and/or the Supplier’s Personnel; and
(g) be supplied in the most cost effective manner consistent with the required level of quality and performance.
9. SUPPLIER'S PERSONNEL
9.1 The Supplier, if required by OSIT, must give its consent to and procure the consent of the Supplier’s Personnel, to the conduct of a police check or any Additional Personnel Checks.
9.2 If OSIT gives the Supplier notice in writing requiring those persons to be withdrawn from supplying the Goods or providing the Services, then the Supplier must immediately comply with the notice and provide replacement Personnel acceptable to OSIT.
10. PRICE AND PAYMENT
10.1 In consideration for the supply of the Goods and/or the Services, OSIT will pay the Price.
10.2 Unless otherwise expressly stated the Price is inclusive of GST.
10.3 The Supplier is entitled to invoice OSIT for payment in respect of the Goods and/or Services, when the Goods have been supplied and accepted under clause 4, and the Services have been supplied in accordance with this Agreement.
11.1 Subject to clause 11.2 the Supplier represents that:
(a) the ABN shown on any proposal, quote or invoice is the Supplier’s ABN; and
(b) it is registered under the A New Tax System (Australian Business Number) Act 1999 (Cth),
11.2 If the Supplier is not registered for GST, then GST must not be charged on supplies made under this Agreement.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Nothing in this Agreement affects the ownership of Intellectual Property Rights created before the Commencement Date.
12.2 The Supplier grants to OSIT a perpetual, irrevocable, royalty free, fee free licence to use, copy, modify and adapt any Intellectual Property Rights in any reports or manuals required to be supplied under this Agreement.
13.1 The Supplier must effect and maintain the following policies of insurance:
(a) Public liability
(b) Professional indemnity
(c) Worker’s compensation
13.2 The policies of insurance referred to in clause 13.1 must be held in order for a Purchase Order to be issued by OSIT to the Supplier.
14.1 The Supplier shall indemnify OSIT against:
(a) any claim against OSIT arising out of or based on the death or bodily injury of any person or loss, destruction or damage of any personal property caused by the conduct of the Supplier, its employees or agents;
(b) any claim against OSIT arising out of or based on any claim or action or allegation that OSIT has caused third party losses while acting within OSIT’s authority pursuant to the Agreement; and
(c) all loss (including legal fees and disbursements) incurred by OSIT as a result of a breach of the terms of the Agreement by the Supplier, its employees or agents.
15. CONFIDENTIAL INFORMATION
15.1 Subject to this clause 15, neither Party may disclose any Confidential Information belonging to the other Party except as genuinely and necessarily required for the purpose of this Agreement.
15.2 A Party may disclose Confidential Information belonging to the other Party:
(a) to an employee, agent or adviser of that Party, on a “need to know” and confidential basis;
(b) as required by law or a court order;
(c) in accordance with any Parliamentary or constitutional convention;
(d) to the Australian Competition and Consumer Commission (ACCC) if the party reasonably suspects, or is notified by the ACCC that it reasonably suspects, that there is Cartel Conduct or unlawful collusion in connection with the supply of Goods or Services under this Agreement; or
(e) for the purposes of prosecuting or defending proceedings.
15.3 The Parties may mutually agree to disclose Confidential Information.
Any claim OSIT may have against the Supplier may be set off against monies owed to the Supplier under this Agreement.
17. DISPUTE RESOLUTION
17.1 Subject to clause 17.4 a Party may not commence legal proceedings without first referring the dispute to the other Party under this clause.
17.2 Either Party may give the other a notice in writing (“dispute notice”) setting out the details of the dispute.
17.3 Within 5 Business Days or such other period as may be agreed by the Parties, representatives must meet and use reasonable endeavours to resolve the dispute.
17.4 A Party may seek immediate interlocutory relief or other interim remedy in case of genuine urgency.
18. ENDING THIS CONTRACT
18.1 Either party may terminate this Agreement immediately upon giving notice in writing.
18.2 Once terminated, any outstanding Goods and/or Services will need to be cancelled. All in progress work will need to be ceased.
18.3 OSIT will pay any outstanding monies to the Supplier while taking into account Goods and / or services that have not been delivered.
19. EFFECT OF ENDING THIS CONTRACT
19.1 Any termination of this Agreement by either Party does not affect any accrued right of either Party.
19.2 Despite termination or completion of this Agreement, this clause 19 and clauses 8, 12, 13, 14, 15, 16 shall survive.
20.1 The Supplier must not engage any subcontractor without the prior written permission of OSIT.
20.2 The Supplier remains responsible for obligations performed by the Subcontractors to the same extent as if such obligations were performed by the Supplier.
21. CONFLICT OF INTEREST
21.1 The Supplier must disclose in writing to the OSIT all actual and potential conflicts of interest that exist, arise or may arise (either for the Supplier or the Supplier’s Personnel) in the course of performing its obligations under this Agreement as soon as practical after it becomes aware of that conflict.
22. COMPLIANCE WITH LAWS
The Supplier must comply with the laws in force in the jurisdiction it operates in while performing its obligations under this Agreement.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement is governed by the laws in the State of Western Australia.
23.2 The courts of the State of Western Australia have exclusive jurisdiction in connection with this Agreement.
24. ENTIRE AGREEMENT
The Agreement constitutes the entire agreement between the Parties in respect of the matters dealt with in this Agreement and supersedes all prior agreements, understanding and negotiations in respect of the matters dealt with in this Agreement.
25. NO ASSIGNMENT
25.1 The Supplier must not assign, encumber or otherwise transfer any of its rights or obligations under this Agreement without the written approval of the OSIT which approval shall not be unreasonably withheld.
25.2 Subject to any contrary legislative intention, the Parties agree that if there is any Machinery of Government Change, this Agreement is deemed to refer to the new entity succeeding or replacing OSIT and all of OSIT’s rights and obligations under this Agreement will continue and will become rights and obligations of that new entity.
No addition to or modification of any provision of this Agreement will be binding upon the Parties unless made by written instrument signed by the Parties.
27.1 Each word, phrase, sentence, paragraph and clause of this Agreement is severable.
27.2 Severance of any part of this Agreement will not affect any other part of this Agreement.
This Agreement may be executed in any number of counterparts each of which is taken to be an original. All of those counterparts taken together constitute one (1) instrument. An executed counterpart may be delivered by email.
29. WORK HEALTH & SAFETY
29.1 The Supplier must comply with appropriate work health and safety laws at all times, regardless of whether OSIT issues direction in that regard or not.
29.2 If all or part of the work under this Agreement is to be provided on the premises of OSIT and under the direction of OSIT, the Supplier must comply with the OSIT’s work health and safety policies, procedures and instructions. If the Supplier becomes aware of any potentially hazardous situation on OSIT’s premises, the Supplier must immediately bring it to OSIT’s attention.
30. ACTING ETHICALLY
The Supplier must conduct itself in a manner that does not invite, directly or indirectly, OSIT’s officers, employees or agents to behave unethically, to prefer private interests over OSIT’s interests.
31.1 Defined terms are set out in the Glossary of Defined Terms.
31.2 In this Agreement (unless the context requires otherwise):
(a) a reference to any legislation includes:
(i) all legislation, regulations and other forms of statutory instrument issued under that legislation; and
(ii) any modification, consolidation, amendment, re-enactment or substitution of that legislation;
(b) a word in the singular includes the plural and a word in the plural includes the singular;
(c) a reference to two or more persons is a reference to those persons jointly and severally;
(d) a reference to dollars is to Australian dollars;
(e) a reference to a Party includes that party’s administrators, successors and permitted assigns.
32.1 During the period that the Supplier provides Goods or Services to OSIT or its clients under this Agreement and up to 24 months thereafter, the Supplier shall not directly or indirectly through any associated company enter into any agreement with, for the provision of Services, either as a consultant or independent contractor, or offer any Goods to any of OSIT’s employees, partners or clients without prior written approval from OSIT.
32.2 The Supplier acknowledges that any breach of this provision will result in substantial damage to OSIT and the Supplier agrees that in the event of breach of this provision the Supplier will pay to OSIT by way of liquidated damages, and not as a penalty, a sum of $50,000 per breach.
In this Agreement:
(a) “Acceptance Date” means the date that the Goods are accepted by the OSIT;
(b) “Approved Subcontractors” means those subcontractors who were approved by OSIT in writing;
(c) “Business Day” means any day that is not a Saturday or Sunday or a public holiday in Western Australia;
(d) “Cartel Conduct” means conduct by two or more parties who are competitors (or would be but for the conduct) who enter into a contract, arrangement or understanding that involves price fixing, output restrictions, allocating customers, suppliers or territories, or bid-rigging, as defined in s44ZZRD of the Competition and Consumer Act2010 (Cth);
(e) “Confidential Information” means information which is identified either as confidential information (if disclosed by the OSIT) or proprietary information (if disclosed by the Supplier), but does not include this Agreement;
(f) “Consultancy Services” means services provided by Consultants;
(g) “Delivery Date” means the date and time agreed to by OSIT and the Supplier for delivery of the Goods;
(h) “Delivery Point” means the location(s) agreed to by OSIT and the Supplier, where the Goods and/or Services will be delivered;
(i) “Goods” means the goods specified in any proposal, quote or invoice;
(j) “GST” means the tax imposed by the GST Law;
(k) “GST Law“ has the meaning attributed in the A New Tax System (Goods and Services Tax) Act 1999 (Cth);
(l) “Installation Date” means the date agreed to by OSIT and the Supplier for the installation of the Goods;
(m) “Intellectual Property Rights” means all intellectual property rights, including but not limited to:
(i) patents, copyright, registered designs, trademarks, know-how and any right to have Confidential Information kept confidential; and
(ii) any application or right to apply for registration of any of the rights referred to in paragraph (a),
but for the avoidance of doubt excludes moral rights and performers’ rights;
(n) “Milestone Dates” means dates by which Services must be delivered as agreed to by OSIT and the Supplier;
(o) “OSIT” means Office Solutions IT Pty Ltd.
(p) “Party” means a party to this Agreement;
(q) “Personal Information” means information or an opinion, whether true or not, relating to a natural person or the affairs of a natural person whose identity is apparent, or can reasonable be ascertained, from the information or opinion;
(r) “Purchase Order” means an order for Goods and/or Services submitted by OSIT to the Supplier;
(s) “Price” means the price payable under this Agreement specified in proposal, quote or invoice and includes any price varied under clause 7;
(t) “Service Levels” means the service levels (if any) specified in the Specifications;
(u) “Services” means the services specified in proposal or quote;
(v) “Specifications” means the detailed description of the Goods/Services in proposal, quote or invoice;
(w) “Supplier” means any entity supplying goods or providing services to OSIT under this Agreement.
(x) “SupplierPersonnel” means any Approved Subcontractors, employees, agents and any other person employed or engaged by the Supplier to perform this Agreement;
(y) “Term” means the period commencing on the Commencement and ending upon termination of the Agreement and;
(z) “Warranty Period” means the period specified in proposal or quote.