1 SUPPLY OF GOODS AND SERVICES
- Supplier must, in relation to the supply of goods, deliver the goods detailed in the Purchase Order by the date specified by SCS, to the address notified by SCS, and, if applicable, by the methods and delivery instructions specified by SCS, all in accordance with the terms of this Agreement.
- Supplier is responsible for payment of all costs (including any levies, duties or taxes) associated with the manufacture, importation, packaging, storage, transportation, delivery and installation (if required by SCS), of goods supplied.
- Supplier must ensure that each packaging slip, bill of lading and invoice bears the applicable purchase order number (or other identification) issued by SCS and the location at which goods are to be delivered or services provided.
- Supplier must, in relation to the provision of services to SCS detailed in the Purchase Order, perform those services in a professional manner and in accordance with any standards or requirements notified by SCS.
2 GENERAL SUPPLIER OBLIGATIONS
- comply with any reasonable directions given by SCS from time to time in respect of the nature and scope of goods and services to be supplied;
- observe all applicable SCS policies and procedures, including the Catholic Archdiocese of Sydney’s Guide for Business Practice, as provided to the Supplier from time to time;
- ensure that it does not engage in any conduct or activity that:
- will harm, or is likely to harm, the name or reputation of SCS or its related associations;
- is offensive, corrupt or disreputable;
- may bring SCS or its related associations, into disrepute, contempt, scandal or ridicule; or
contravenes or is contrary to the requirements, principles standards notified by SCS
- ensure that all employees, agents and contractors engaged to provide goods and services (collectively, the Personnel) are competent and have the skills and experience required to provide the goods and services to the standard required by
- ensure that all Personnel consent to any routine background checks and where requested by SCS, remove any Personnel who, in SCS’s opinion, are not suitable to provide the goods or services and replace such Personnel with a person acceptable to SCS
- assume responsibility for the acts or omissions of the Personnel in respect of the supply of goods and services to SCS and
- (where the Supplier is providing services to SCS at a site (the Site)):
- ensure that it complies with any Site conditions that are notified by including conditions relating to access, safety, Site control, working hours;
- provide SCS with a list of all major equipment which it proposes to use on Site and ensure that such equipment complies with all applicable Australian standards and safety requirements;
- ensure that any necessary licences and permits are obtained in order to provide the services, including of any vehicle or equipment used in of the services; and
- rectify any damage to the Site caused by the provision of the services.
- All prices and fees for provision of goods and services are fixed as specified in the Purchase order unless SCS agrees in writing to a price variation.
- Subject to anything in the contrary in the Purchase Order, it is at SCS’ discretion as to whether it pays the invoices upfront or makes payment within 30 days after receipt of a valid tax invoice or within 30 days of the end of the month in which the goods or services are delivered, provided that:
- the goods or services are satisfactory to SCS;
- the valid tax invoice is issued after the delivery of the goods or after the provision of the services; and
- delivery of the goods, provision of the services and the amounts invoiced are in accordance with this Agreement or other written instructions issued by or on behalf of SCS.
- Payments may be made by direct deposit and Supplier will provide SCS with full details of its bank account for this purpose.
4 WORK HEALTH AND SAFETY
- The Supplier warrants that it is familiar with and has the capability and resources to comply with all work health and safety laws applicable or relevant to the provision of goods and services, and to the extent applicable, will comply with its obligations under the Work Health and Safety Act 2011 (NSW) (WHS Act) and the Work Health and Safety Regulation 2011 (NSW) (WHS Regulation) as a supplier of goods and services, and as a designer, manufacturer, importer, installer, constructor or commissioner of the goods.
- The Supplier will comply with and ensure that all its contractors engaged in provision of the goods or services comply with all work health and safety laws applicable or relevant to the provision of goods and services. The Supplier must, on reasonable request by or on behalf of SCS, demonstrate compliance with those requirements including providing evidence of measures taken to achieve such compliance.
- The Supplier must
- ensure, so far as is reasonably practicable, that all goods supplied by it are without risks to the health and safety of persons:
- (A) who, at a workplace, use the goods for a purpose for which the goods were designed or manufactured;
- (B) who handle, store or construct the goods at a workplace;
- (C) who carry out any reasonably foreseeable activity at a workplace in relation to (as applicable):
- the assembly or use of goods for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant;
- the use of the goods for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance;
- the assembly or use of the goods for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or
- (D) who are at or in the vicinity of a workplace and who are exposed to the goods at the workplace or whose health or safety may be affected by a use or activity referred to in clause 4(c)(i)(A) to (C) above;
- carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by clause 4(c) or ensure that the calculations, analysis, testing or examination have been carried out;
- give adequate information to SCS concerning:
- (A) each purpose for which the goods was designed or manufactured;
- (B) the results of any calculations, analysis, testing or examination referred to in clause 4(c)(ii) including, in relation to a substance, any hazardous properties of the substance identified by testing; and
- (C) any conditions necessary to ensure that the Goods are without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity referred to in clause 4(c).
- comply with its obligation under the work health and safety laws to consult, cooperate and coordinate activities with all other persons who have a work health and safety duty in relation to the same matter;
- Where the Supplier is performing work on sites which are not SCS premises, the Supplier must:
- cooperate with SCS in order to maintain consistent safety practices on the site; and
- cooperate with SCS to enable SCS to comply with its obligations under all work health and safety laws applicable or relevant to the goods and services.
- Where the Supplier is performing work on and will have control of sites that are not SCS premises the Supplier must perform all relevant functions and fulfil all relevant duties under work health and safety laws (including notification of incidents) of a person with management or control of the workplace, and a person conducting a business or undertaking in relation to the provision of the goods or services.
- The Supplier acknowledges that other than when goods or services are being supplied to or performed on SCS premises, SCS does not control or influence health and safety matters concerning the supply of the goods or services.
- Any breach by the Supplier of this clause entitles SCS at its option to suspend the whole or part of the provision of the goods or services and any payment for such goods or services until the breach is rectified and the Supplier must bear any costs it incurs as a result of the suspension.
4A CHILD PROTECTION
Where the Supplier is a company
- To the extent the following legislation is applicable to the Supplier, it undertakes it has complied with and will continue to comply with all relevant provisions of the:
- Child Protection (Working with Children) Act 2012 (NSW) and Child Protection (Working with Children) Regulation 2012 (NSW), in particular the requirement to verify the Working with Children Checks (WWCC) of any persons required to hold a WWCC;
- Ombudsman Act 1974 (NSW) and Ombudsman Regulation 2011 (NSW), in particular the requirements to keep child protection systems and report matters to the Ombudsman; and
- Children and Young Persons (Care and Protection) Act 1998 (NSW) and Children and Young Persons (Care and Protection) Regulation 2012 (NSW), in particular the requirements relating to mandatory reporters.
- The Supplier must, on reasonable request by or on behalf of SCS, demonstrate compliance with those requirements including providing evidence of measures taken to achieve such compliance.
- In providing the goods and/or services under this Agreement, the Supplier must comply, and must procure that its employees, volunteers and contractors comply, with the child protection policies and procedures of SCS as notified to the Supplier from time-to-time
- In the event a child protection matter arises, each of the Supplier’s employees, volunteers and contractors agree to provide reasonable cooperation with any investigation or other queries relating to that matter, and consent to use of their personal and confidential information during any such investigations or queries, including in any final report that is prepared in respect of the matter.
Where the Supplier is an individual
- To the extent the Supplier is required to obtain a Working with Children Check (WWCC), he/she must provide details of his/her full name, date of birth and WWCC or WWCC application number to the relevant Parish Priest (or Parish Administrator) or agency head to verify, and acknowledges that if the WWCC cannot be verified, he/she will not be engaged to provide the goods and/or services to be supplied.
- In providing the goods and/or services under this Agreement, the Supplier must comply with the child protection policies and procedures of SCS as notified to the Supplier from time-to-time.
- In the event a child protection matter arises, the Supplier agrees to provide reasonable cooperation with any investigation or other queries relating to that matter, and consent to use of his or her personal and confidential information during any such investigations or queries, including in any final report that is prepared in respect of the matter.
- In this clause 5:
- words and expressions which are not defined in this Agreement but which have a defined meaning in GST Law have the same meaning as in the GST Law; and
- GST Law has the meaning given to that expression in the A New Tax System (Goods and Services Tax) Act 1999.
- Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under this Agreement are exclusive of GST.
- If GST is payable by a supplier or by the representative member for a GST group of which the supplier is a member, on any supply made under this Agreement, the recipient will pay to the supplier an amount equal to the GST payable on the supply.
- The recipient will pay the amount referred to in clause 5(c) in addition to and at the same time that the consideration for the supply is to be provided under this contract.
6 OVERSUPPLY AND EARLY SUPPLY
- SCS bears no responsibility for goods delivered or services provided in excess of written instructions by SCS. Deliveries in excess of those authorised by SCS may be returned to the Supplier and the Supplier must pay SCS for all packaging, removing, handling, sorting and transportation expenses incurred in connection with such deliveries.
- SCS is not obliged to accept early delivery of goods and the Supplier is responsible for holding and storing the goods until the time of delivery.
7 WARRANTY AND INSPECTION
Without limitation to any other terms implied by statute, common law, equity or otherwise:
- Supplier represents and warrants that:
- all goods and services supplied to SCS:
(A) conform to the specifications, drawings, samples, SCS, packaging and environmental considerations as notified by SCS from time to time, or other descriptions furnished by SCS;
(B) are fit and sufficient for the purpose intended;
(C) are free from defect or default of any kind;
(D) are free from any charge or other encumbrance; and
(E) comply with all applicable laws, regulations, local requirements and other applicable Australian standards and industry regulations.
- The Supplier must rectify any damage to the delivery site (or any fixtures, fittings or equipment at the delivery site) caused by the provision of services by or on behalf of the Supplier or, if directed by SCS, pay for the cost of repair.
- A claim that the goods or services are below the requisite standards may be made by SCS on delivery. Acceptance on delivery of the goods or services or payment by SCS does not constitute an agreement that the services meet the requisite standards.
- If SCS reasonably determines that goods or services provided by Supplier are defective in material or workmanship (including any installation requirements of SCS) or otherwise fail to meet SCS’ requirements, SCS may at its discretion and without limitation to any other right or remedy:
- reject those goods or services and the Supplier must repay on demand all moneys paid by SCS to Supplier for those goods or services; or
- elect to accept those goods or services and recover from Supplier damages suffered by reason of Supplier’s failure to provide goods or services in accordance with SCS’ requirements.
- Supplier will be liable for all expenses incurred by SCS in returning, correcting or replacing defective or faulty goods or services.
9 INTELLECTUAL PROPERTY, ADVERTISING RIGHTS AND CONFIDENTIAL INFORMATION
- Supplier must not advertise or promote its supply of goods or services to SCS or any relationship with SCS, or release any such materials bearing, containing or referring to any marks, logos or devices of SCS (or any SCS agencies).
- Supplier warrants that the goods and services supplied to SCS will not infringe any patent, trade mark, copyright or other intellectual property rights or moral rights of any person.
- Supplier must not give any interviews or assist a media entity in relation to the writing or broadcasting of any story concerning the provision of goods or services to SCS or otherwise concerning SCS.
- Supplier must ensure that the Supplier, its officers, employees and agents:
- keep confidential all information of SCS that it receives which it knows or reasonably know is confidential, including the fact that the Supplier has provided SCS with the services and has entered into an agreement with SCS; and
- do not use or disclose such confidential information to any person without SCS’s prior written approval.
10 INDEMNITY AND INSURANCE
- Except where the Loss is caused by the negligence of SCS, the Supplier indemnifies SCS, including its respective directors, executive members, officers, employees, volunteers, agents and contractors from and against all claims, liabilities, losses, damages and costs (including the cost of complying with product recall, loss of profits and legal costs and expenses calculated on a solicitor client basis) and/or liability to any third party arising out of or incidental to a breach of this Agreement by Supplier, any warranty given by Supplier under this Agreement being incorrect or misleading in any way, or any loss or damage (including damage to property or injury to person) which arises from the provision of defective goods or services by the Supplier under this Agreement and/or any act or omission (including negligence or unlawful or wilful conduct) by Supplier or any of its directors, executive members, officers, employees, contractors, agents or advisers relating to the supply of goods or the provision of services under this Agreement (“Loss”).
- If requested by SCS, Supplier must provide and maintain (and if requested by SCS, provide SCS with a certificate of insurance verifying compliance) the following insurances on an occurrence basis:
- public liability insurance with a minimum insurance coverage of $20 million (with no deductible) for each occurrence of bodily injury and property damage including contractual liability, product liability, cross liability coverage, personal injury and property damage;
- workers compensation;
- insurance of the goods or full replacement value of the goods; and
- insurance for all equipment and materials used by Supplier (if any) for installation of the goods or for provision of the services.
11 LIMITED LIABILITY
- To the extent permitted by law, neither SCS nor any entity on whose behalf it has entered into this Agreement, is liable for, and no measure of damages will, under any circumstances, include, special, indirect, consequential, incidental or punitive damages or economic loss, loss of profits, revenue, goodwill, bargain, anticipated savings or loss or corruption of data, whether in an action in contract, tort (including without limitation negligence and product liability), statute or otherwise, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.
- The liability under this Agreement of SCS and any other entity on whose behalf SCS has entered into this Agreement is limited to the total value of all payments made by SCS to the Supplier for goods and services supplied under this Agreement.
12 TITLE AND RISK
- In the SCS of purchase of goods by SCS, title to the goods will pass to SCS upon payment by SCS and responsibility for any loss or damage to the goods will pass to SCS on delivery of such goods to the address notified by SCS.
- Where Supplier conducts any repair and/or maintenance activities in respect of the goods, the Supplier will be responsible for any loss of or damage to the goods as a result of such maintenance or repair.
- Unless otherwise agreed by the parties in writing, SCS may terminate this Agreement at any time by giving 30 days prior written notice to Supplier.
- In addition, SCS may terminate this Agreement immediately in whole or in part by written notice if:
- the Supplier fails or refuses to make delivery of the goods or provision of the services in accordance with this Agreement;
- the Supplier becomes insolvent, bankrupt or enters into liquidation;
- there is a substantial change in shareholder control or ownership of the Supplier, which in the reasonable opinion of SCS adversely affects the Supplier’s ability to perform the obligations; or
- the Supplier engages in conduct which, in the reasonable opinion of SCS, reflects unfavourably on the good name, goodwill, reputation or image of SCS.
CONSEQUENCES OF TERMINATION
- Upon termination or expiration of this Agreement, the Supplier must immediately discontinue the supply of goods and the provision of services to SCS.
- If SCS terminates this Agreement for a reason other than breach by, or insolvency of, the Supplier or the negligence, unlawful or wilful conduct of the Supplier, then SCS must pay Supplier those costs incurred which are properly allowable or apportionable under generally accepted accounting principles for the goods or services consumed by SCS as at the date of termination.
- Clauses 7 will survive the expiry or termination of this Agreement to the extent necessary to effect the intent of the parties and to protect the rights of SCS.
15 FORCE MAJEURE
- A party will not be liable for delays or failures in performing their obligations due to causes which are, in SCS’s reasonable opinion, beyond the control and without the fault or negligence of the respected parties and provided that, in the case of the Supplier, it has used its best endeavours to minimise any delays or failures.
- Supplier must notify SCS immediately of any anticipated delays or failure to perform its obligations.
- In the event of an excusable delay or failure of performance by Supplier due to an event described in clause 15(a), SCS will be entitled to obtain elsewhere, for the duration of such delay or failure, the goods or services ordered and to reduce proportionally, and without any obligation to Supplier, the quantity of goods or services ordered from Supplier under this Agreement and accordingly reduce proportionally the amount payable under this Agreement.
The individual remedies reserved in this Agreement are cumulative and additional to any other or further remedies provided in law or equity. No waiver of any breach of any provision of this Agreement will constitute a waiver of any other breach, or other such provision.
17 ENTIRE AGREEMENT
- Subject to clause 17(b), these terms contain the entire Agreement between the parties and supersede all prior negotiations, representations, Agreements and understandings, written or oral concerning the subject matter of these terms. Where terms and conditions offered in either the Supplier’s quotation or the Supplier’s invoice conflict with the terms and conditions of these terms, these terms will prevail.
- These terms may not be modified except in writing and signed by SCS’s authorised representative.
18 RELATIONSHIP BETWEEN THE PARTIES and ASSIGNMENT
- Nothing in this Agreement creates a partnership, joint venture, relationship of employment, agency or similar relationship between the parties.
- Unless express written consent is given by SCS, this Agreement is not assignable by Supplier.
19 COMPLIANCE WITH LAWS
This Agreement will be governed by and interpreted in accordance with the laws of New South Wales and the parties submit to the jurisdiction of the courts of that State.
- Subject to paragraph (b), the Existing Party hereby notifies and the supplier agrees that from 1 January 2018, Sydney Catholic Schools Limited ACN 619 137 343 as trustee for the Sydney Catholic Schools Trust (ABN 26 159 447 082) (New Entity), will conduct the existing operations of the Existing Party and, from 1 January 2018, the parties agree that this Agreement is novated to the New Entity and:
- the New Entity replaces the Existing Party as the party under this Agreement;
- a reference to the Existing Party in this Agreement must be read as a reference to the New Entity;
- the New Entity obtains all rights of the Existing Party, and assumes all obligations of the Existing Party under the Agreement; and
- the Supplier shall continue to perform its obligations in accordance with this Agreement notwithstanding the substitution of the New Entity.
- Notwithstanding clause (a) above, before 1 January 2018, the Existing Party may notify the Supplier in writing that this Agreement will be novated on a date later than 1 January 2018, or that it will not be novated, in which case the Existing Party will remain bound by the provisions of this Agreement as if this clause did not exist.