General Conditions for the Provision of Goods
1 Supply of Goods
- The Supplier must supply the Goods to State Trustees in accordance with the Purchase Order and Specification and these Conditions.
- The Supplier must deliver the Goods to the Delivery Point by the Time for Delivery. Delivery will not be taken to have occurred until delivery is acknowledged in writing by State Trustees.
- State Trustees may vary, suspend or withdraw an order on giving the Supplier reasonable notice.
2 Acceptance or rejection of Goods
- The Goods must conform to the Specification and any sample provided. If in State Trustees’ reasonable opinion, the Goods do not conform, State Trustees may, without limitation to any rights State Trustees may otherwise have, reject the Goods by written notice giving reasons.
- The Supplier must at its cost collect and remove any rejected Goods as soon as practicable, unless State Trustees elects to return the Goods at the Supplier’s expense.
- State Trustees’ acceptance or rejection of the Goods does not limit its rights under the Agreement, the Australian Consumer Law or otherwise.
3 Invoicing and payment
- The Unit Price is fixed and includes all packaging, transport, insurance, loading, unloading and storage costs and any other costs incurred by the Supplier.
- The Supplier must submit to State Trustees a tax invoice for the Purchase Price following the supply of the Goods containing the information necessary to be a tax invoice for the purposes of the GST Act together with such other information as State Trustees may reasonably require. The tax invoice must be sent to the address specified in the Purchase Order.
- State Trustees will pay the invoiced amount within 30 days of receipt of an accurate invoice. If State Trustees disputes the invoiced amount it must pay the undisputed amount (if any) and notify the Supplier of the amount in dispute. The parties will endeavour to resolve the dispute promptly and in good faith in accordance with clause 14.
- Payment is not to be taken as evidence that the Goods have been supplied in accordance with the Agreement but must be taken only as payment on account.
4 Title and risk
- Title in the Goods will pass to State Trustees upon payment for the Goods. Risk in the Goods will pass to State Trustees when the Goods are delivered to the Delivery Point and State Trustees accepts the Goods in accordance with clause 2.
- The Supplier warrants to State Trustees that:
- (Title) it has the right to sell and transfer title and property in the Goods to State Trustees and State Trustees will receive the Goods free from all encumbrances;
- (Capacity) it has the power to enter into and perform its obligations under the Agreement and that it has all necessary licences, permits and consents to enter into and comply with its obligations under the Agreement;
- (IP) it is entitled to use and deal with any Intellectual Property Rights which it may use in connection with the Goods;
- (Conflict) 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 whereby duties or interests are or might reasonably be created in conflict with or might reasonably appear to be created in conflict with its obligations under the Agreement; and
- (Goods) the Goods:
- are new and fit for the purpose stated in the Specification (or, if no purpose is stated, the purpose for which the Goods would ordinarily be used);
- conform in all respects with the Specification;
- are free from defects (including defects in installation); and
- are of merchantable quality and comply with all Laws.
- The Supplier indemnifies State Trustees and each of its Personnel against any Loss that State Trustees may suffer as a result of:
- any breach of the Agreement by the Supplier, including a breach of warranty or a breach in respect of which State Trustees exercises an express right to terminate the Agreement; or
- any negligent act or omission or wilful misconduct of the Supplier or its Personnel,
except to the extent that the Loss was caused or contributed to by the negligence or contractual breach of State Trustee or its Personnel.
7 Intellectual Property Rights
- The Supplier grants State Trustees a non-exclusive, perpetual, royalty-free transferable licence to use any Intellectual Property Rights in relation to any Goods supplied to the extent necessary to allow State Trustees full use and enjoyment of those Goods. The Supplier must, on State Trustees’ request, do all things necessary to give full effect to such rights.
- The Supplier must maintain insurance cover at all relevant times for the greater of $5 million or an amount sufficient to cover any loss or costs for which the Supplier is liable in connection with the supply of the Goods, including product liability insurance to the value of the Purchase Order and, if applicable, public liability insurance. Product liability insurance must match any warranty period or 3 years after acceptance of the Goods, whichever is the greater.
- On request, the Supplier must provide State Trustees with evidence of insurance currency.
9 Confidentiality and privacy
- The Supplier and its Personnel must not use, disclose or otherwise make available any Confidential Information to any other person without State Trustees’ consent.
- The Supplier will promptly return or destroy (at State Trustees’ election) all Confidential Information and materials containing Personal Information on request or on termination or expiry of this Agreement.
- The Supplier consents to State Trustees’ publishing or otherwise making available information relating to the Supplier (and the provision of the Goods) as may be required by Laws.
- The Supplier acknowledges that it is bound by the Privacy Principles with respect to any act in connection with provision of the Goods in the same way as State Trustees would be bound had the relevant act been done by State Trustees.
- The Supplier will promptly inform State Trustees of, and cooperate in resolving, any actual or potential privacy-related breach or complaint.
- When on State Trustees’ premises of, the Supplier must use reasonable endeavours to protect people and property, prevent nuisance, act safely and lawfully and comply with State Trustees’
safety standards, directions and policies (as notified).
- The Supplier must not sub-contract any obligation in relation to the supply of the Goods without the prior written consent of State Trustees (which may be given or withheld in its absolute discretion).
- The Supplier will not, as a result of any sub-contracting arrangement, be relieved from the performance of any obligation under the Agreement and will be liable for all acts and omissions of a sub-contractor as though they were the actions of the Supplier itself.
12 Compliance with Laws
- The Supplier must, in performing its obligations under the Agreement, comply with all applicable Laws.
- The parties agree that the consumer guarantees provided under Division 1 of Part 3-2 of the Australian Consumer Law will form part of the Agreement as if State Trustees were a consumer within the meaning of that law.
- Terms used in this clause have the same meanings given to them in the GST Act.
- Unless expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with the Agreement are exclusive of GST.
- If GST is imposed on any supply made under or in accordance with the Agreement, State Trustees must pay the Supplier an amount equal to the GST payable for the taxable supply subject to receiving a valid tax invoice at or before the time of payment. Payment of the GST amount will be made at the same time as payment for the taxable supply is required to be made.
14 Dispute Resolution
- The parties must co-operate in good faith to resolve any dispute in connection with the Agreement.
- If the parties cannot resolve a dispute, it must be dealt with as follows:
- a party asserting a dispute must notify the other party in writing, with details (Notice of Dispute);
- if the dispute is not resolved within 14 days (or other agreed period), the parties must refer it to mediation by the Australian Disputes Centre (ADC) in accordance with ADC Mediation Guidelines; and
- if there is no resolution of the matter, then either party may commence legal proceedings.
- Despite any dispute, the Supplier will (unless otherwise requested in writing by State Trustees) continue to provide the Goods.
- This clause does not preclude either party from commencing legal proceedings for urgent interlocutory relief.
- The Agreement may be terminated by either party without cause on not less than 30 days’ written notice to the other party. No penalty will apply if the Agreement is terminated under this clause.
- The Agreement may be terminated by State Trustees immediately by written notice:
- if the Supplier commits a material breach and does not remedy it within 5 business days of written notice;
- if the Supplier assigns or sub-contracts the whole or part of this Agreement or there is a material change in the direct or indirect beneficial ownership or control of the Supplier, without the prior written consent of State Trustees; or
- if the Supplier becomes insolvent or if State Trustees reasonably suspects it is.
- The Supplier will be entitled to payment for the Goods provided only up to the date of termination. State Trustees may withhold any payments for Goods not supplied at the time of termination.
- Nothing in this clause limits:
- any cause of action for breach of the Agreement or otherwise which accrued to State Trustees prior to any termination; or
- any other rights and remedies available to State Trustees.
- The Agreement is governed by and is to be construed in accordance with the Laws. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and any courts with jurisdiction to hear appeals from those courts and waives any right to object to any proceedings being brought in those courts.
- Time is of the essence in relation to the supply of the Goods.
- The Agreement constitutes the entire agreement between the parties regarding its subject matter. Where the Supplier also provides services to State Trustees, these Conditions and the services conditions both apply, save that the services conditions prevail to the extent of any inconsistency.
- The Agreement may not be varied except in writing and signed by each party.
a. In these Conditions, unless the context otherwise requires:
Agreement means the agreement for the supply of the Goods of which these Conditions, the Specification and the Purchase Order form part.
Conditions means these General Conditions for the Supply of Goods.
Confidential Information means any technical, commercial, financial or other information of, or in any way related to, State Trustees, which is designated confidential or ought reasonably be considered confidential, which is disclosed, made available, or communicated to the Supplier, but excludes information:
- which is in or which subsequently enters the public domain other than as a result of a breach of these Conditions;
- which the Supplier can demonstrate was in its possession prior to the date of the Agreement;
- which the Supplier can demonstrate was independently developed by it; or
- which is lawfully obtained by the Supplier from another person entitled to disclose such information.
Delivery Point means the location(s) to which the Goods are to be delivered, as specified in the Purchase Order or as otherwise advised by State Trustees.
Goods means the goods (or any of them) specified in the Purchase Order.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights includes all present and future copyright and neighbouring rights, all proprietary rights in relation to inventions (including patents), registered and unregistered trade marks, confidential information (including 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.
Laws means any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or a local government, and includes the common law as applicable from time to time.
Loss means loss, liability, claim, costs or expenses (including legal expenses) actual or contingent.
Personal Information has the meaning set out in the Privacy Act 1988 (Cth), and includes the fact that a person may be a represented person under the Guardianship and Administration Act 1986.
Personnel means a party’s officers, employees, contractors, agents and/or other representatives.
Privacy Principles means the Australian, information and health privacy principles, set out in the Privacy Act 1988 (Cth), the Privacy and Data Protection Act 2014 (Vic) and the Health Records Act 2001 (Vic), respectively.
Purchase Order means any form of order or acceptance from State Trustees for the supply of the Goods which incorporates these Conditions, or to which they are stated to apply.
Purchase Price means the sum ascertained by multiplying the Unit Price for the applicable Goods by the number of units delivered.
Specification means the specifications to which the Goods must comply, as set out in the Purchase Order, advised by State Trustees or as otherwise incorporated in the Agreement.
Supplier means the entity supplying the Goods under these Conditions.
Time for Delivery means the date and, where relevant, the time specified in the Purchase Order (or such other date or time as may be agreed in writing) by or on which delivery of the Goods must be effected by the Supplier.
Unit Price means the price per item of each of the Goods, as specified in the Purchase Order.