General Conditions for the Provision of Services
1 Provision of Services
The Supplier must provide the Services to State Trustees in accordance with the Agreement including these Conditions, and must:
- complete the Services by the Completion Date (if any) and any other dates for delivery specified in the Service Schedule or Purchase Order and in accordance with all relevant policies and procedures of State Trustees as updated from time to time;
- provide the Services in accordance with the Service Schedule and 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;
- ensure the highest quality of work and the delivery of the Services with the utmost efficiency;
- act in good faith and in the best interests of State Trustees; and
- provide any and all equipment necessary for the performance of the Services.
State Trustees may vary, suspend or withdraw an order on giving the Supplier reasonable notice.
2 Price for the Services
The Rates or Fees applicable to the Services are set out in the Purchase Order or Service Schedule, and are fixed. No additional charges or fees are payable by State Trustees to the Supplier unless agreed in writing.
3 Invoicing and payment
- The Supplier must submit to State Trustees a tax invoice in respect of the Services once they are completed, or at such other time or times as agreed by the parties. The tax invoice must contain the information necessary for the purposes of the GST Act together with such other information as State Trustees may reasonably require, and 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 Services have been supplied in accordance with the Agreement but must be taken only as payment on account.
4 Failure to perform
- Without limiting any other available remedy, if the Supplier fails to provide any of the Services in accordance with the Agreement, State Trustees will not be required to pay for those Services (until they are provided correctly) and may require the Supplier to remedy any default or re-perform the Services within the time specified in a notice (which must be reasonable having regard to the nature of the Services).
- If the default referred to in clause 4(a) is not capable of being remedied or the Services are not capable of being re-performed, or the Supplier fails within the time specified to remedy the default or re-perform the Services, State Trustees may, without limiting any other available remedy, either have the Services remedied or re-performed by a third party or do so itself. In either case, the Supplier must pay the reasonable costs incurred by State Trustees in doing so (beyond the costs State Trustees would have paid to the Supplier for satisfactory performance of the Services).
The Supplier warrants to State Trustees that:
- (Purpose) where State Trustees has, either expressly or by implication, made known to the Supplier any particular purpose for which the Services are required, the Services will be performed in such a way as to achieve that result;
- (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; and
- (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.
- 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,
- The Supplier warrants to State Trustees that it is entitled to use and deal with any Intellectual Property Rights which may be used by it in connection with the provision of the Services.
- The ownership of any Contract Intellectual Property shall vest in State Trustees upon the time of its creation.
- All Pre-Existing Intellectual Property used by the Supplier in connection with the provision of Services or the creation of Contract Intellectual Property remains the property of the Supplier or its licensors.
- The Supplier hereby irrevocably and unconditionally grants to State Trustees, free of additional charge, a non-exclusive, worldwide licence to use, adapt, reproduce and distribute any Pre-Existing Intellectual Property to the extent that:
- it forms part of or is integral to any Contract Intellectual Property or works or other items created by the Supplier in connection with the provision of Services or the creation of Contract Intellectual Property; and
- such licence is necessary for State Trustees or its users to use the Contract Intellectual Property or works or other created items, or otherwise exercise the benefits of the Services.
- The ownership of Data, including any Intellectual Property Rights, shall vest in State Trustees upon the time of its creation, unless otherwise agreed.
- The Supplier warrants that it has or will procure a written consent from all necessary authors to State Trustees exercising its rights in the Data or Contract Intellectual Property in a manner that, but for the consent, would otherwise infringe the moral rights of those individuals.
- 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 provision of the Services including professional indemnity and, if applicable, public and product liability insurance.
- On request, the Supplier must provide State Trustees with evidence insurance currency.
- 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 Services) 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 Services 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.
- The Supplier must not sub-contract any obligation in relation to the Services 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.
- 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.
- The Supplier must, and must procure that its Personnel must, comply with all State Trustees policies provided by the relevant State Trustees representative, including but not limited to:
- Code of Conduct;
- Occupational Health and Safety Policy;
- IT Security Policy.
- The Supplier must, and must procure that its Personnel must, comply with the reasonable directions of the State Trustees representative.
- 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.
- 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 Services.
- 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 that it is.
- The Supplier will be entitled to payment for the Services provided only up to the date of termination. State Trustees may withhold any payments for Services 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 provision of the Services.
- The Agreement constitutes the entire agreement between the parties regarding its subject matter. Where the Supplier also provides goods to State Trustees, these Conditions and the goods conditions both apply, save that these Conditions prevail to the extent of the inconsistency.
- The Agreement may not be varied except in writing and signed by each party.
- 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.
The Supplier indemnifies State Trustees and each of its Personnel against any Loss that State Trustees may suffer as a result of:
except to the extent that the Loss was caused or contributed to by the negligence or contractual breach of State Trustees or its Personnel.
7 Intellectual Property Rights
9 Confidentiality and privacy
When on State Trustees’ premises, the Supplier must and must ensure that its Personnel 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 to the Supplier).
12 Compliance with Laws and Policies
14 Dispute Resolution
In these Conditions, unless the context otherwise requires:
Agreement means the agreement for the provision of the Services of which these Conditions, the Purchase Order and the Service Schedule (if any) form part.
Code of Conduct means State Trustees’ Code of Conduct, as amended from time to time.
Completion Date means the date (if any) set out in the Service Schedule by which provision of the Services must be effected by the Supplier.
Conditions means these General Conditions for the Provision of Services.
Confidential Information means any technical, commercial, financial or other information of, about or in any way related to, State Trustees, which is designated as confidential or which ought reasonably be considered confidential, which is disclosed, made available or communicated to the Supplier, but excludes information:
Contract Intellectual Property means any and all Intellectual Property Rights incorporated or comprised in any materials created by or on behalf of the Supplier in the course of providing the Services, except any Intellectual Property Rights in Data.
Data means any information, data or datasets created by or on behalf of the Supplier in the course of providing the Services.
Fees means a fixed fee payable to the Supplier for the provision of the Services.
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.
Pre-Existing Intellectual Property means any and all Intellectual Property Rights in any works, items or systems which are the property of the Supplier and which existed in substantially the same form and with substantially the same contents prior to the commencement of the provision of the Services.
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 Services which incorporates these Conditions or to which they are stated to apply.
Rates means the rates (whether charged on an hourly, daily, weekly or other time-related basis) payable to the Supplier for the provision of the Services.
Service Schedule means any form of order or acknowledgment from State Trustees for the provision of the Services which incorporates these Conditions.
Services means the services (or any of them) specified in the Service Schedule.
Supplier means the entity supplying the Services under these Conditions.