Preferred Supplier Arrangement Deed (Goods and Services) GPO Box 2693

GPO Box 2693
Adelaide South SA 5001
Phone:
Fax:
08 8224 2013
08 8232 6336
RFT Release Date:
RFT Title:
Contract Number:
2nd of April, 2011.
Corporate Wardrobe (Goods and Services)
NPN 2.11
Preferred Supplier Arrangement Deed
(Goods and Services)
LGCS PTY LTD
ACN 094 805 964
ABN 90 602 350 622
and
Geminex Pty Ltd
T/A Totally Workwear Richmond
ABN 70 090 580 760
ACN 090 580 760
NPN 2.11 Preferred Supplier Deed (Corporate Wardrobe)
Page 1
Table of Contents
1.
DEFINITIONS & INTERPRETATION.................................................................... 6
1.1
1.2
2.
SUPPLY UNDER A PREFERRED SUPPLIER ARRANGEMENT FOR THE TERM10
2.1
2.2
2.3
3
Administration Fee..................................................................................... 22
Management Fee ....................................................................................... 23
Reporting .................................................................................................. 23
PERFORMANCE MONITORING .......................................................................... 25
8.1
8.2
9
Request for Quotations.............................................................................. 20
Orders ....................................................................................................... 21
ADMINISTRATION FEE, MANAGEMENT FEE AND REPORTING .................... 22
7.1
7.2
7.3
8
Contractor to fulfil all Orders ..................................................................... 16
Conflict of Interest..................................................................................... 17
Contractor to inform itself ......................................................................... 17
Obligation to supply Deliverables at Prices set out in Price Schedule ......... 18
Minimum insurance requirements .............................................................. 18
Evidence of Insurances.............................................................................. 18
Compliance with laws and standards ......................................................... 18
Canvassing ................................................................................................ 18
Non-collusion............................................................................................. 19
General Indemnity ..................................................................................... 19
REQUEST FOR QUOTATION AND ORDERING PROCESS ................................ 20
6.1
6.2
7
Suspension of Contractor .......................................................................... 14
Suspension for Legitimate Business Reasons ............................................. 15
Suspension by the Principal ....................................................................... 16
SPECIFIC OBLIGATIONS OF THE CONTRACTOR ............................................ 16
5.1
5.2
5.3
5.4
5.5
5.6
5.7
5.8
5.9
5.10
6
Variation to Description of Deliverables ..................................................... 11
Acquisition of Additional Goods, Materials or Services ............................... 11
Prices for Deliverables ............................................................................... 12
Price Adjustment ....................................................................................... 12
Best Price .................................................................................................. 13
Maximum Ceiling Price .............................................................................. 14
Price Audit ................................................................................................. 14
Regional Representation............................................................................ 14
SUSPENSION ....................................................................................................... 14
4.1
4.2
4.3
5
Preferred Supplier Arrangement ................................................................ 10
Term ......................................................................................................... 10
Conflict ...................................................................................................... 11
DELIVERABLES AND PRICING .......................................................................... 11
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
4
Interpretation .............................................................................................. 6
Definitions ................................................................................................... 7
Monitoring of performance ........................................................................ 25
Exchange of Contractor information .......................................................... 25
TERMINATION ..................................................................................................... 25
NPN 2.11 (Corporate Wardrobe – Goods and Services)
Page 2
9.1
9.2
9.3
9.4
9.5
10
DISPUTE RESOLUTION ....................................................................................... 26
10.1
10.2
11
Confidentiality ........................................................................................... 27
Intellectual Property .................................................................................. 28
Privacy....................................................................................................... 28
Right to Information .................................................................................. 28
NO LIABILITY ...................................................................................................... 29
12.1
13
Procedure for Resolving Dispute ................................................................ 26
Continuing Obligations & Injunctive Relief ................................................. 27
CONFIDENTIALITY, INTELLECTUAL PROPERTY, PRIVACY & RIGHT TO
INFORMATION..................................................................................................... 27
11.1
11.2
11.3
11.4
12
Termination for cause ............................................................................... 25
Effect of Termination for cause by Principal .............................................. 25
Termination at Will .................................................................................... 26
Effect of Termination on Customer Contract and Rights and Obligations of
Parties ....................................................................................................... 26
Clauses which Survive Expiry or Termination............................................. 26
No Liability ................................................................................................ 29
GENERAL .............................................................................................................. 29
13.1
13.2
13.3
13.4
13.5
13.6
13.7
13.8
13.9
13.10
13.11
13.12
13.13
13.14
13.15
13.16
13.17
13.18
13.19
13.20
13.21
Amendment ............................................................................................... 29
Entire Understanding ................................................................................. 29
Further Assurance ..................................................................................... 29
Security/Performance Guarantee ............................................................... 29
Force Majeure ........................................................................................... 30
No Assignment or Novation ....................................................................... 30
Subcontracting .......................................................................................... 30
Marketing and Promotion .......................................................................... 30
Financial Viability ....................................................................................... 31
Notices ...................................................................................................... 31
Supplier Transition .................................................................................... 31
Meetings and Reporting............................................................................. 31
Legal Costs and Expenses ......................................................................... 31
GST ........................................................................................................... 31
Stamp Duty ............................................................................................... 32
Waiver and Exercise of Rights ................................................................... 32
Survival of Indemnities .............................................................................. 32
Enforcement of Indemnities ...................................................................... 32
No Merger ................................................................................................. 32
Negation of Employment Agency ............................................................... 32
Governing Law and Jurisdiction ................................................................. 33
SCHEDULE A ...................................................................................................................... 35
Deed Details............................................................................................................ 35
SCHEDULE B ...................................................................................................................... 36
Price Schedule......................................................................................................... 36
SCHEDULE C ...................................................................................................................... 37
Customers (in New South Wales) ............................................................................ 37
Customers (in Queensland) ..................................................................................... 37
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Page 3
Customers (in South Australia)................................................................................ 37
Customers (Victoria) ............................................................................................... 38
SCHEDULE D ...................................................................................................................... 39
Standard terms of Contract between a Customer and the Contractor ..................... 39
SCHEDULE E ....................................................................................................................... 50
Deliverables Specification ........................................................................................ 50
SCHEDULE F ....................................................................................................................... 68
Regional Representation ......................................................................................... 68
SCHEDULE G ...................................................................................................................... 69
Special Conditions ................................................................................................... 69
NPN 2.11 (Corporate Wardrobe – Goods and Services)
Page 4
Preferred Supplier Arrangement
DATE
/
/2011
BETWEEN
LGCS PTY LTD AS TRUSTEE FOR THE LGCS TRUST NO. 1 AND TRADING AS
LOCAL GOVERNMENT CORPORATE SERVICES
ACN 094 805 964
ABN 90 602 350 622
OF 16 HUTT ST, ADELAIDE SA 5000
(PRINCIPAL)
AND
Geminex Pty Ltd
T/A Totally Workwear Richmond
ABN 70 090 580 760
ACN 090 580 760
Registered Address: Unit 2A, 240-356 South Road, Richmond, SA. 5033.
(Contractor)
RECITALS
A.
The Principal issued the Request for Tender for the supply of the Deliverables.
B.
The Contractor submitted the Tender that was accepted by the Principal.
C.
The Principal and the Contractor have agreed to enter into a Preferred Supplier
Arrangement for the supply of the Deliverables on the terms set out in this Deed.
Page 5
Richmond)_SA.docx
NPN 2 11 Preferred Supplier Deed (Totally Workwear
THIS DEED WITNESSES
1.
DEFINITIONS & INTERPRETATION
In this Deed unless expressed or implied to the contrary:
1.1
Interpretation
1.1.1
1.1.2
1.1.3
1.1.4
A reference to a party to the Deed includes:
1.1.1.1
in the case of a natural person, that person and his/her
personal representatives and assigns (transferees); and
1.1.1.2
in the case of a corporation, the corporation, its successors
and assigns (transferees).
Where a party is composed of 2 or more persons, each item of agreement
by the party binds:
1.1.2.1
all of those persons collectively; and
1.1.2.2
each of them as an individual.
A reference to:
1.1.3.1
the singular includes the plural, and vice versa;
1.1.3.2
a gender includes each other gender;
1.1.3.3
a person includes a corporation, a firm, and a voluntary
association;
1.1.3.4
an Act includes an Act that amends, consolidates or replaces
the Act and any subordinate legislation;
1.1.3.5
a section or other provision of an Act includes a section or
provision that amends, consolidates or replaces the section or
provision;
1.1.3.6
money is a reference to Australian dollars and cents;
1.1.3.7
a time of day is a reference to Australian Eastern Standard
Time;
1.1.3.8
a document includes, but is not limited to, any drawing,
specification, material, record or other means by which
information can be stored or reproduced; and
1.1.3.9
the words ‘include’, ‘included’ or ‘including’ when those words
are used, will be interpreted as if they were preceded by the
further words ‘but not limited to’ or the appropriate
grammatical derivative;
No rule of construction or interpretation of the Deed shall apply to either
Principal’s or the Customer’s disadvantage solely because the Principal
prepared the Deed or either of them rely on a provision of the Deed.
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Page 6
1.1.5
Clause headings exist for convenience only and are to be disregarded
when interpreting the Deed.
1.1.6
All information delivered as part of the Deliverables supplied under this
Deed must be written in English. Where any document is a translation
into English, the translation must be accurate.
1.1.7
If a provision of the Deed is void, voidable, illegal or unenforceable, the
provision will be deemed deleted from the Deed.
1.2
Definitions
Administration Fee means the administration fee set out as Item 9 in Schedule A
payable by the Contractor to the Principal in accordance with clause 7.
Authorised Officer means an authorised officer of the Principal (or in the case of
an Order, the Customer) whose details may be updated from time to time by
written notice to the Contractor.
Business Day means Monday to Friday excluding public holidays in New South
Wales, Queensland, South Australia and Victoria.
Commencement Date means the commencement date set out in Item 4 of
Schedule A.
Confidential Information means in relation to a party, information that:
(a)
is by its nature confidential;
(b)
is designated by that party as confidential; or
(c)
the other party knows or ought to know is confidential.
Consideration means consideration payable under this Deed in return for a
Taxable Supply, but does not include any amount on account of GST.
Contract Number means the contract number set out in Item 1 of Schedule A.
Contract Price means the total amount payable by the Customer to the Contractor
for the Deliverables ordered under a Customer Contract and calculated in
accordance with the relevant provisions under Schedule D.
Contractor’s Representative means the Contractor’s authorised representative
for the purposes of this Deed and any Customer Contract whose details may be
updated from time to time by written notice.
Customer means any entity listed in Schedule B as amended from time to time,
and such other councils, persons or entities which the Principal may from time to
time, in its discretion, determine by notification to the Contractor, including the
Principal acting in its own capacity.
Customer Contract means the contract that is made between the Contractor and
a Customer when the Customer places an Order, on the terms set out in Schedule
D, as provided for in clause 5.2.2 or as otherwise varied by agreement between the
parties in a manner permitted by this Deed.
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Customer Data means information held by the Principal (including electronically)
about the Contractor which is made available to Customers.
Deed means this document, including any attachments and Schedules.
Deliverables means the goods and/or services to be supplied by the Contractor in
accordance with this Deed and itemised in the Specification and the Price Schedule
as amended from time to time in accordance with this Deed.
Expiry Date means the expiry date set out in Item 4 of Schedule A.
Force Majeure Event means any occurrence or omission outside a party’s
reasonable control, by which the party relying on the event is prevented from or
delayed in performing its obligations under this Deed other than:
(a)
a payment obligation;
(b)
an industrial dispute involving the Contractor’s own staff or subcontractors staff; or
(c)
a change in the law which could have reasonably been anticipated prior
to the commencement date specified in Item 4 of Schedule A (including
for the avoidance of doubt any carbon trading scheme or emissions tax).
GST Act means A New Tax System (Goods and Services Tax) Act 1999 (as
amended from time to time).
GST has the same meaning given to that term in the GST Act.
Insolvent means in relation to a party means that it has:
(a)
a petition presented against it (that is not discharged or withdrawn within
10 Business Days of its presentation), an order made, a resolution passed
or a meeting summoned or convened to consider a resolution for its
winding up;
(b)
a receiver appointed over its assets or undertaking or any part of them;
(c)
ceased to pay its debts or suspended payment generally or became
insolvent or unable to pay its debts as and when they become due and
payable;
(d)
an official manager, trustee, voluntary administrator, liquidator or
provisional liquidator appointed for all or any part of its assets or
undertaking;
(e)
ceased to trade;
(f)
been wound up or struck off;
(g)
entered into or resolved to enter into an arrangement, composition or
compromise with or assignment for the benefit of its creditors generally
or any class of creditors or proceedings are commenced to sanction such
an arrangement, composition or compromise other than for the purposes
of a bona fide scheme of solvent reconstruction or amalgamation.
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Management Fee means the management fee payable by the Contractor to the
Principal in accordance with clauses 7.2 and 7.3.
Month means a calendar month.
NPN Lead Agency means Local Buy Pty Ltd (ACN 090 446 487) of Level 1, 25
Evelyn Street, Newstead, QLD 4006 which has been designated as the lead agency
for this National Procurement Network (NPN) Preferred Supplier Arrangement.
Order means a written request by a Customer to the Contractor for the supply of
any or all of the Deliverables which incorporates the Customer Contract, RFQ and
the Contractor’s RFQ response (subject to any written variations agreed between
the parties) and Ordered has a corresponding meaning.
Preferred Supplier Arrangement means a continuing offer by the Contractor to
supply the Deliverables pursuant to the terms of this Deed during the Term, on the
Order of any Customer.
Price means the price payable for a Deliverable as set out in the Price Schedule and
includes the price expressed as a lump sum or a rate per unit of quantity, or if
applicable, means that price less any agreed discount or plus any agreed margin.
Price Schedule means the documents referred to or set out in Schedule B as
updated from time to time in accordance with clause 3.
Regional Representation Schedule means the regional representation schedule
set out in Schedule F.
Reporting Period means the reporting period set out in Item 10 of Schedule A.
Request for Quotation or RFQ means a document inviting price quotations from
the Contractor which defines the criteria of service, quality and delivery for the
Deliverables required by a Customer.
Request for Tender means the request for tender issued by the Principal and
described in Item 1 of Schedule A.
Security means the security in the amount and form specified by the Principal in its
discretion and set out in Item 8 of Schedule A.
Special Conditions means the special conditions set out in Schedule G which
apply to this Deed.
Specification means the detailed description of the Deliverables as set out in
Schedule E.
Supply has the same meaning given to that term in the GST Act.
Suspension means a temporary postponement of the Contractor’s right to supply
the Services to Customers under this Deed for a period of time and ‘Suspend’ has a
corresponding meaning.
Taxable Supply has the same meaning given to that term in the GST Act.
Tender means the Contractor's tender to the Principal in response to the Request
for Tender, which tender has been accepted by the Principal.
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Term means the period of this Deed specified in clause 2.2.1 subject to any
extension in accordance with clause 2.2.2.
2.
SUPPLY UNDER A PREFERRED SUPPLIER ARRANGEMENT FOR THE TERM
2.1
Preferred Supplier Arrangement
2.1.1
The Contractor must supply the Deliverables to a Customer (which
includes the Principal), on a non-exclusive basis, upon the terms of this
Deed and the relevant Customer Contract, at any time during the Term,
upon the receipt of an Order from that Customer.
2.1.2
The Contractor acknowledges and agrees that the obligation by the
Contractor under clause 2.1.1 constitutes a Preferred Supplier
Arrangement which is capable of acceptance by any Customer at any time
during the Term.
2.1.3
The Contractor acknowledges that this Deed does not:
2.1.4
2.2
2.1.3.1
imply that the Contractor is the exclusive provider of the
Deliverables to a Customer;
2.1.3.2
guarantee any particular volume of purchases or level of
Customer spend; or
2.1.3.3
oblige a Customer to place an Order for the Deliverables with
the Contractor.
The Contractor must make its pricing and terms under this Deed available
to any pre-existing Customer of the Contractor. Upon the written request
of the Customer, the Contractor will promptly terminate any pre-existing
contractual arrangements between them and enable that Customer to
access the Deliverables under the terms of this Deed. There will be no
penalty, fees or costs imposed on the Customer for this transition. The
change-over date between the contracts will be the first day of the next
calendar month unless otherwise stipulated by the Customer.
Term
2.2.1
Subject to clause 2.2.2, this Deed commences on the Commencement
Date and expires on the Expiry Date, unless earlier terminated in
accordance with this Deed.
2.2.2
The Principal may in its sole discretion extend this Deed for the period or
periods specified as the extension period in Item 4 of Schedule A.
2.2.3
Notwithstanding the expiry or termination of this Deed, the terms of this
Deed will continue to apply to all Customer Contracts and related Orders
entered into during the Term which remain ongoing past the expiry or
termination of this Deed until such time as the relevant Customer
Contract and related Order is itself terminated or expires.
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2.3
Conflict
2.3.1
3
3.1
2.3.1.1
Special Conditions;
2.3.1.2
Deed;
2.3.1.3
Specification;
2.3.1.4
Request for Tender; and
2.3.1.5
Tender.
2.3.2
Where the Contractor becomes aware of any inconsistency or ambiguity
in the documents which constitute this Deed, the Contractor shall
immediately bring the inconsistency or ambiguity to the attention of the
Principal who will issue instructions consistent with the order of
precedence set out in clause 2.3.1.
2.3.3
Once issued, the Principal’s instructions pursuant to clause 2.3.2 shall be
binding on the parties with respect to that inconsistency or ambiguity.
DELIVERABLES AND PRICING
Variation to Description of Deliverables
3.1.1
The Contractor must notify the Principal in writing as soon as practicable
of any proposed variation to the description of a Deliverable offered under
this Deed.
3.1.2
A variation under clause 3.1.1 may include a variation to the description
of the item number, name or Specification of the Deliverable, but
excludes a variation:
3.1.3
3.2
Where any inconsistency or ambiguity arises between the different
documents which constitute this Deed, the order of precedence to resolve
the inconsistency or ambiguity shall be (listed in order of descending
importance):
3.1.2.1
to the Price of the Deliverable;
3.1.2.2
that modifies or upgrades the Deliverable; or
3.1.2.3
that introduces a new Deliverable to the Price Schedule.
The Principal will notify the Contractor of its acceptance or rejection of
the proposed variation to the description of the Deliverable. If the
proposed variation is accepted by the Principal, the Price Schedule and
the Specification will be deemed to be amended to reflect, to the extent
agreed by the Principal, the proposed variations, as from the date of
notification of acceptance.
Acquisition of Additional Goods, Materials or Services
3.2.1
During the term of this Deed, the Contractor must:
3.2.1.1
notify the Principal in writing from time to time as soon as
practicable of any proposed variations to the range of existing
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Deliverables offered under this Deed, or of any proposed new
goods/materials/services that the contractor commences
producing or sourcing and wishes to offer under this Deed
during the term that at the time of the relevant notice are not
included in the Specification; and
3.2.1.2
3.3
3.4
at the same time provide to the Principal the amended Price
Schedule incorporating any changes under clause 3.2.1.1.
3.2.2
The Principal will notify the Contractor of its acceptance or rejection of
the proposed variation to the range of the Deliverables. If the proposed
variation is accepted by the Principal, the Price Schedule and the
Specification will be deemed to be amended to reflect, to the extent
agreed by the Principal, the proposed variations, as from the date of
notification of acceptance.
3.2.3
Without limiting the operation of clause 3.2.1, the changes or additions
may eventuate as a result of superseded or discontinued products,
additional or complementary products, development and improvements,
new technologies, revised or amended standards.
3.2.4
Prior to exercise of the Principal’s right under clause 3.2.2 to accept a
proposed variation, the Principal will provide other contractors under the
initial Request for Tender in relation to Deliverables with an option to
supply the same, amended or new goods, materials or services.
3.2.5
This clause 3.2 shall only apply to proposed variations which do not
materially deviate from the Specification and the basis on which the
Contractor’s Tender was accepted.
Prices for Deliverables
3.3.1
Subject to clauses 3.4, 3.5 and 3.6, the price of the Deliverable to be
supplied under the Customer Contract shall be the Price for that
Deliverable, less any applicable discount or plus any applicable margin.
3.3.2
Clause 3.3.1 does not prevent the Contractor from offering, or the
Contractor and Customer from negotiating to reduce the Price or margin
or increase the discount for a particular Deliverable provided that the
Price, margin or discount, is consistent with clause 3.5 of this Deed.
Price Adjustment
3.4.1
The Contractor:
3.4.1.1
must not vary the Price or discount of a Deliverable during the
first six month period of the Term;
3.4.1.2
may vary the Price or discount of a Deliverable after the first
six month period of the Term:
3.4.1.2.1
if the variation of the Price or discount of a
Deliverable was specifically set out in the Tender
(and accepted by the Principal); or
3.4.1.2.2
otherwise in accordance with this clause 3.4.
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3.5
3.4.2
After the first six month period of the Term, but no more than once
during each six month period, the Contractor may apply in writing to the
Principal to vary the Price or discount of a Deliverable. Any such
application must include written substantiation for the Price or discount
variation.
3.4.3
The Principal may approve or reject the proposed variation in Price or
discount for the Deliverable by written notification to the Contractor. The
Principal is entitled to accept or reject a Price or discount variation
application in its absolute discretion. Where the Price or discount price
variation is accepted by the Principal, the Price Schedule will be deemed
to be amended to the extent agreed by the Principal, to include the varied
Price or discount and such variation will take effect from the date
specified by the Principal.
3.4.4
Without limiting clause 3.4.3, the Principal reserves the right to delete a
Deliverable from the Price Schedule or terminate this Deed if it considers
a Price or discount variation application to be unreasonable.
3.4.5
The Contractor is to notify the Principal of any decrease in the Price (or
improvement of discounts offered). The Contractor is to provide such
notification in writing as soon as possible. Upon receipt of such
notification, any decrease to the Price (or improvement of discounts
offered) will have immediate effect. An application can be submitted via
letter in writing addressed to the NPN Lead Agency.
3.4.6
An application to increase the Price of a Deliverable shall not exceed 5%
unless the circumstances set out in clause 3.4.7 apply in which case the
application to increase the Price of a Deliverable shall not exceed 10%.
3.4.7
Where extraordinary market circumstances have adversely affected the
Contractor’s ability to continue to provide the Deliverables at the agreed
Price under the Contract, an application to vary the Price or discount may
be submitted by the Contractor to the NPN Lead Agency. Any such
Application must be made in writing, and must be submitted to the NPN
Lead Agency as soon as practicable.
3.4.8
All requests for Price adjustments by the Contractor must be submitted to
the NPN Lead Agency who will respond, following discussions with other
NPN members, on behalf of all parties to the Request for Tender. The
NPN Lead Agency’s decision is final and where the Price or discount price
variation is accepted by the Principal, the Price Schedule will be deemed
to be amended to the extent agreed by the Principal, to include the varied
Price or discount and such variation will take effect from the date
specified by the Principal.
Best Price
3.5.1
The Contractor represents that the Price, margin or discount for a
Deliverable will be no less favourable than the Price, margin or discount
applicable to any other public sector purchasers of substantially similar
goods and/or services or quantities of goods and/or services (the Similar
Deliverables) of the Contractor.
3.5.2
The Contractor agrees that where it offers a more favourable Price,
margin or discount to any other public sector purchaser of Similar
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Deliverables, it will make the more favourable Price, margin or discount
available to all Customers entitled to the benefit of this Deed. The
Contractor agrees that a failure to comply with this clause 3.5 will entitle
the Principal to terminate this Deed in accordance with clause 9.1.
3.6
Maximum Ceiling Price
The Contractor acknowledges and agrees that:
3.7
3.6.1
the Price for each Deliverable in the Price Schedule is a maximum ceiling
price which cannot be exceeded without the Contractor applying for a
price variation under clause 3.4 of this Deed.
3.6.2
the discount for each Deliverable in the Price Schedule is a minimum
discount which cannot be reduced without the Contractor applying for a
discount variation under clause 3.4 of this Deed.
3.6.3
where it offers a temporary or periodic price or discount special that is
lower than a Price, or greater than a discount respectively, specified in
the Price Schedule it will make available that lower Price or greater
discount, to all Customers and will promptly notify the Principal of such
temporary or periodical Price or discount special.
Price Audit
Where the Price incorporates a discount or margin, the Principal, upon giving the Contractor
reasonable notice, has the right to inspect and audit the Contractor's cost and Price structure
at any time throughout the Term.
3.8
Regional Representation
Where the Contractor wishes to supply the Deliverables pursuant to this Deed to any
territories not set out in the Regional Representation Schedule the Contractor shall prior to
commending such supply advise the NPN Lead Agency of such change.
4
4.1
SUSPENSION
Suspension of Contractor
4.1.1
A Suspension is based upon an expectation by both the Contractor and
the Principal to resume the Deed after the period of Suspension, providing
the cause giving rise to the Suspension is resolved to the Principal’s
satisfaction.
4.1.2
The Suspension period will form part of the defined Term of the Deed.
4.1.3
During the Suspension period, the Contractor and the Principal are
required to keep in regular contact about the prospects and timeframe for
resuming the Deed.
4.1.4
The Deed resumes at the end of the Suspension period. However, if both
the Contractor and the Principal agree in writing, the Contractor can
resume the Deed prior to the end date of the Suspension period.
4.1.5
During the Suspension period, the Principal will immediately notify any
existing or inquiring prospective Customers(s) of the Contractors
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Suspension, and will provide reasons for the Contractor’s Suspension to
any existing or inquiring prospective Customers(s).
4.1.6
During the Suspension period, the Principal may remove, amend or alter
the Contractor’s Customer Data.
4.1.7
The Contractor may be suspended under the following circumstances:
4.1.8
4.2
4.1.7.1
where the Contractor has legitimate business reasons
affecting the Contractor’s ability to supply the Deliverables
(“Suspension for legitimate business reasons”); or
4.1.7.2
where, in the reasonable opinion of the Principal, the
Contractor has breached or is likely to breach the Deed or a
Customer Contract (“Suspension by the Principal”).
During the Suspension period, the Contractor must not accept any new
Orders for the supply of the Deliverables from any Customer without the
prior written approval of the Principal.
Suspension for Legitimate Business Reasons
4.2.1
An application for Suspension may be made by the Contractor only for
legitimate business reasons affecting the Contractor’s ability to supply the
Deliverables. Legitimate business reasons may include, but are not limited
to, business re-location or a Force Majeure Event.
4.2.2
An application for Suspension by the Contractor for a legitimate business
reason must be an action of last resort.
4.2.3
An application for Suspension by the Contractor must be made in writing.
The Contractor must provide the Principal with evidence that the
Contractor has used their best endeavours to avoid the need for a
Suspension.
4.2.4
Within five (5) business days of receipt of an application for Suspension
for legitimate business reasons, the Principal will advise the Contractor in
writing of whether the Suspension application has been accepted or
declined.
4.2.5
During the period of Suspension approved for a legitimate business
reason, the Contractor must use their best endeavours to avoid the need
to request an extension of the Suspension period. If the Contractor needs
to extend the initial Suspension period for legitimate business reasons,
then the Contractor must provide the Principal with reasons in writing as
to why an extension of the Suspension period is required.
4.2.6
The maximum period for Suspension of the Contractor for a legitimate
business reason is thirty (30) days. However, if the Contractor has
submitted a request for an extension of the Suspension period to the
Principal, the Suspension period may be extended by the Principal upon
consideration of all the circumstances, including the best endeavours used
by the Contractor during the initial Suspension period, together with the
evidence provided by the Contractor to support an extension of the initial
Suspension period.
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4.2.7
4.3
Suspension by the Principal
4.3.1
The Principal may, by written notice, suspend the Contractor at any time
on terms and conditions specified by the Principal if, in the reasonable
opinion of the Principal, the Contractor has breached or is likely to breach
the Deed or a Customer Contract or as otherwise set out in this Deed.
4.3.2
The Principal will notify the Contractor in writing of their Suspension from
the Deed (a “Suspension Notification Form”). The Suspension Notification
Form must be signed by the Principal. The Suspension Notification Form
will contain:
5.1
4.3.2.1
the reason(s) for the Suspension; and
4.3.2.2
a review or expiry date for the Suspension.
4.3.3
The Contractor shall remain liable for the delivery of the Deliverables
Ordered prior to the Suspension date, as well as for all charges due
throughout the Suspension period.
4.3.4
If the Contractor has been suspended under this clause 4.3, it will be at
the sole discretion of the Principal to resume the Deed. If the Principal
agrees to resume the Deed, the Principal will require:
4.3.5
5
Within five (5) business days of receipt of a request for an extension of
the Suspension period, the Principal will advise the Contractor whether
the application for an extension of the initial Suspension period has been
accepted or declined.
4.3.4.1
payment in full from the Contractor of any outstanding
amounts of money the Contractor is required to pay under the
Deed within seven (7) business days; and
4.3.4.2
payment of a reactivation fee of $550.00 (inclusive of GST)
within thirty (30) days.
The Principal is under no obligation to provide the Contractor with a copy
of the Customer Data if the Principal has suspended the Contractor under
this clause 4.3. However, at the Contractor’s request the Principal may
agree to provide the Contractor with a copy of their Customer Data, and if
so the Principal is entitled to charge a reasonable fee for service.
SPECIFIC OBLIGATIONS OF THE CONTRACTOR
Contractor to fulfil all Orders
5.1.1
The Contractor must fulfil all Orders which are accepted by it during the
Term in accordance with this Deed (including the Specification and the
Pricing Schedule) and the Customer Contract.
5.1.2
The Contractor acknowledges and agrees that a Customer may place an
Order with the Contractor for any one type or item of the Deliverables
either at one time or in instalments or in such quantity as may be
required from time to time.
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5.2
5.3
5.1.3
If the Contractor does not agree to any additional conditions specified by
the Customer in an Order, the Contractor must promptly contact the
Customer to negotiate in good faith the application of any additional
conditions to the Order. Subject to the terms of this Deed, the Contractor
acknowledges that no additional condition may derogate from the
provisions contained in this Deed, including the terms set out in Schedule
D which will apply to each Customer Contract. To the extent that any
additional condition derogates from the terms of this Deed including the
terms set out in Schedule D, such additional condition will be void and will
have no effect.
5.1.4
If the Principal so requests, the Contractor must provide the Principal with
a copy of each Order, in its final form, within 14 days after agreeing the
form of the Order with the Customer.
Conflict of Interest
5.2.1
The Contractor warrants that, to the best of its knowledge, no conflict of
interest of the Contractor, its employees, agents or subcontractors exists
or is likely to arise in the performance of its obligations under this Deed.
5.2.2
The Contractor must:
5.2.2.1
notify in writing, and consult with, the Principal immediately
upon becoming aware of the existence or possibility of a
conflict of interest; and
5.2.2.2
comply with any direction given by the Principal in relation to
those circumstances design to manage that conflict of
interest.
5.2.3
For the purposes of this clause 5.2, "conflict of interest" includes
engaging in any activity, or obtaining any interest, likely to conflict with
the performance by the Contractor of, or to restrict the Contractor in
performing, its obligations under the Deed.
5.2.4
The Principal may immediately terminate the Deed or Suspend the
Contractor in accordance with clause 4.3 if in its view a conflict of interest
exists which prevents the proper performance of the Deed.
Contractor to inform itself
The Contractor will be deemed to have:
5.3.1
examined carefully and to have acquired actual knowledge of the
contents of all of this Deed and any other information made available in
writing by the Principal to the Contractor for the purposes of the Request
for Tender and this Deed; and
5.3.2
satisfied itself as to the correctness and sufficiency of its response to the
Request for Tender and that the prices in the Price Schedule cover the
costs of complying with all of its obligations under the Deed and of all
matters and things necessary for the proper performance and completion
of the Deed.
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5.4
Obligation to supply Deliverables at Prices set out in Price Schedule
The Contractor must supply the Deliverables at such Prices as specified in the Price
Schedule, as may be varied in accordance with clause 3.4, except where otherwise agreed
with the Principal in accordance with this Deed. The Prices, except as specifically provided,
are inclusive of all the costs, expenses, levies, taxes, duties and other fees that the
Contractor incurs in the supply of the Deliverables unless otherwise set out in the
Specification, the Pricing Schedule or Order.
5.5
Minimum insurance requirements
The Contractor must hold and maintain the following broad form liability policies of insurance
for the Term, or for such other period as may be specifically required by this Deed for the
particular policy:
5.6
5.7
5.5.1
public liability insurance for at least the amount specified in Item 5(a) of
Schedule A in respect of each claim; and
5.5.2
products liability insurance for at least the amount specified in Item 5(b)
of Schedule A for the total aggregate liability for all claims arising out of
the Contractor's products for the period of cover; and
5.5.3
workers compensation insurance in accordance with applicable legislation
for the Contractor's employees; and
5.5.4
any other type of policy of insurance the Contractor would reasonably be
expected to hold by a prudent operator of a similar business as that of
the Contractor.
Evidence of Insurances
5.6.1
The Contractor must, at reasonable request by the Principal, produce to
the Principal certified true copies of certificates of currencies, policies of
insurance and receipts showing that all premiums in respect of the
insurances referred to in clause 5.5 have been paid and such insurances
are in place.
5.6.2
The Principal will organise access for the Contractor to the World Wide
Web based contract compliance system “mycontractor.com.au” which
unless otherwise requested, will be used as the method for lodgement of
the documents required in clause 5.6.1.
Compliance with laws and standards
The Contractor must in carrying out this Deed comply with:
5.8
5.7.1
all applicable statutory requirements; and
5.7.2
all applicable codes, policies, guidelines and Australian Standards
including those notified in writing by the Principal to the Contractor.
Canvassing
The Principal may immediately terminate the Deed or Suspend the Contractor in accordance
with clause 4.3 if in its view the Contractor, to solicit support for this Preferred Supplier
Arrangement or otherwise seek to influence an outcome of this Preferred Supplier
Arrangement, or a Customer Contract:
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5.9
5.8.1
offers any inducement, fee or reward to any director or employee of the
Principal, any member or officer of a Customer or any person acting as an
advisor for the Principal; or
5.8.2
canvasses, lobbies or petitions any of the persons referred to in
paragraph 5.8.1; or
5.8.3
contacts any director or employee of the Principal about the Preferred
Supplier Arrangement or any process relating thereto, except as
authorised or contemplated by this Preferred Supplier Arrangement
including (but without limitation) for the purposes of discussing the
possible transfer to the employment of the Contractor of such director or
employee.
Non-collusion
The Principal may immediately terminate the Deed or Suspend the Contractor in accordance
with clause 4.3 if in its view the Contractor:
5.10
5.9.1
seeks to vary a Price under this Deed in accordance with an agreement or
arrangement with any other contractor which is a party to a similar
Preferred Supplier Arrangement with the Principal; or
5.9.2
enters into any agreement or arrangement with any other contractor that
it shall refrain from entering a Customer Contract unless certain additional
conditions apply; or
5.9.3
causes or induces any person to enter such agreement as is mentioned in
either paragraph 5.9.1 or 5.9.2 above; or
5.9.4
canvasses, lobbies or petitions any of the persons referred to in
paragraph 5.9.1 or 5.9.2 above in connection with this Deed or the
outcome of this Preferred Supplier Arrangement, or a Customer Contract;
or
5.9.5
offers or agrees to pay or give or does pay or give any sum of money,
inducement or valuable consideration directly or indirectly to any person
for doing or having done or causing or having caused to be done in
relation to any other similar Preferred Supplier Arrangement or proposed
similar Preferred Supplier Arrangement any act or omission; or
5.9.6
communicates to any person other than the Principal the amount of any
Price variation (except where such disclosure is made in confidence in
order to obtain quotations necessary for the preparation of the
documents substantiating the price variation).
General Indemnity
5.10.1
The Contractor is liable for and indemnifies and must keep indemnified,
the Principal and its officers, employees and agents against any claim,
loss or expense (including a claim, loss or expense arising out of personal
injury, death or damage to property) which any of them suffers, incurs or
is liable for (including reasonable legal costs on a solicitor and client
basis) (together the Loss) as a result of:
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6
6.1
5.10.1.1
the defective or negligent supply or non-supply of any
Deliverables;
5.10.1.2
any unlawful, negligent, reckless or deliberately wrongful act
or omission of the Contractor (or its employees, agents or
subcontractors or their employees) in the performance of this
Deed; or
5.10.1.3
any breach by the Contractor of this Deed.
5.10.2
The Contractor's liability in respect of the indemnity given under this
clause 5.10 shall be reduced proportionately to the extent that any
unlawful, negligent, reckless, or deliberately wrongful act or omission of
the Principal, its officers, employees or agents caused or contributed to
the Loss.
5.10.3
Despite clause 5.10.1 and 5.10.2, the Contractor will not be liable for any
special, indirect, incidental or consequential damage arising out of or in
connection with this Deed.
REQUEST FOR QUOTATION AND ORDERING PROCESS
Request for Quotations
6.1.1
A Customer may submit a RFQ with further information and specifications
of their requirements and/or required accessories, spare parts,
maintenance and training services.
6.1.2
Where the Contractor wishes to submit a quotation, the Contractor must
respond to a Customer RFQ in writing in the manner and within the
period set out in the Customer’s RFQ or as otherwise agreed with the
relevant Customer.
6.1.3
If the Contractor is unable to meet any of the requirements of a specific
RFQ, this should clearly be noted in the Contractor’s RFQ response.
6.1.4
Any free services which the Contractor nominates to supply, additional to
those specified and which the Contractor accepts, shall be carried out in
accordance with the details supplied by the Contractor at a time and place
approved by the Customer.
6.1.5
Customers are not bound to accept a RFQ response received from the
Contractor or any other supplier even where such RFQ is the lowest in
price.
6.1.6
If the Contractor’s RFQ response is selected following the RFQ process,
the Customer shall accept the Contractor’s offer by issuing an Order
pursuant to clause 6.2 below.
6.1.7
For the avoidance of doubt, Customers may use an electronic process (eg
Local Buy Vendor Panel) to issue RFQs. Where a Customer makes use of
an electronic RFQ process, the Contractor must (if submitting a response)
respond via the same electronic process.
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6.1.8
6.2
Neither the Principal nor a Customer accept any liability whatsoever
arising from a Contractor’s technical inability to receive or respond to
electronic RFQ requests.
Orders
6.2.1
6.2.2
Each Order placed by a Customer with the Contractor shall incorporate
(and any inconsistency or ambiguity shall be resolved in the following
order of precedence - listed in order of descending importance):
6.2.1.1
the Customer Contract;
6.2.1.2
the requirements of the Order;
6.2.1.3
the requirements of the relevant RFQ;
6.2.1.4
the Contractor’s RFQ response; and
6.2.1.5
the Specification.
Where the Contractor receives an Order from a person other than a
notified Authorised Officer or which does not list the Principal’s relevant
Contract Number, the Contractor must:
6.2.2.1
not supply the Deliverables identified in the Order; and
6.2.2.2
refer the Order to the relevant Authorised Officer.
6.2.3
A Contractor must not supply other categories of goods and/or services
other than those tendered and appointed for under the Deed without the
prior written approval of the Principal.
6.2.4
Subject to clauses 6.2.5 and 6.2.6, the terms and conditions of each
Order will be those terms set out in Schedule D to this Deed. The
Contractor acknowledges that no amendments to the terms set out in the
Schedule D of this Deed may be agreed between the Customer and
Contractor without prior consent of the Principal.
6.2.5
Where a Customer is bound to use its own standard terms and conditions,
that Customer may require that the Contractor comply with those
standard terms and conditions. Where this occurs, the Contractor is not
bound to accept the Order. Where the Contractor does accept the Order,
the Customer’s standard terms and conditions shall apply to that Order
and take precedence to the extent of any conflict over the terms and
conditions set out in Schedule D.
6.2.6
Subject to clause 6.2.7, a Customer may include special conditions in an
Order which add to the Customer Contract terms and conditions. These
special conditions will only be valid should both the Customer and
Contractor agree to them. For the avoidance of doubt, the Contractor
shall be deemed to have agreed to such special conditions where the
special conditions are clearly set out in an RFQ issued by the Customer
and the Contractor commences provision of the Deliverables pursuant to
a resulting Order.
6.2.7
Where the special conditions are likely to constitute a material change to
the Customer Contract (determined by the parties acting reasonably and
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in good faith), the parties must seek the approval of the Principal prior to
the Order being issued. Until such time as the Principal has approved the
use of the special conditions, any resulting Order shall not constitute a
valid exception to the Customer’s mandated tendering processes.
7
6.2.8
The Principal may at any time request a copy of the standard terms and
conditions referred to in clause 6.2.5, special conditions referred to in
clause 6.2.7, an Order, RFQ and/or RFQ response (and/or associated
information) from the Contractor and the Contractor shall provide the
Principal with such documentation and/or information within 7 days of the
request (or such other time period as may be agreed between the
parties).
6.2.9
If the Principal finds that any documents constituting an Order (including
for the avoidance of doubt the Customer’s own standard terms, RFQ
and/or special conditions) substantially conflict with the terms and
conditions of the Deed or the Customer Contract, the Principal shall
consult the Customer and Contractor to resolve the matter.
6.2.10
If the matter cannot be resolved as set out 6.2.9 above, the Principal may
at its discretion deem the relevant Order as being non-compliant with the
terms of the Deed and as such not constituting a valid exception to the
Customer’s mandated tendering processes.
ADMINISTRATION FEE, MANAGEMENT FEE AND REPORTING
The Contractor must pay to the Principal an Administration Fee and a Management Fee in
accordance with this clause.
7.1
Administration Fee
7.1.1
The initial Administration Fee set out in Item 9 of Schedule A shall be paid
by the Contractor to the Principal within 7 days of execution of this Deed.
7.1.2
On the first anniversary of the Commencement Date and subsequent
anniversaries, the annual Administration Fee set out in Item 9 of Schedule
A becomes owing and payable.
7.1.3
If the Principal elects to extend this Deed for further one year terms (or
part thereof) following the initial term, the annual Administration Fee set
out in Item 9 of Schedule A becomes owing and payable for each such 12
month period (or part thereof).
7.1.4
Where the Contractor has outstanding Administration Fees under this
Deed or another contract with the Principal, the Principal shall invoice the
Contractor for the sum owing.
7.1.5
The Contractor shall pay an invoice issued pursuant to clause 7.1.4 within
30 days of the invoice date.
7.1.6
The Principal shall be entitled to immediately suspend or terminate this
Deed where the Contractor has failed to comply with clause 7.1.5 and
recover any unpaid Administration Fees as a debt due and owing to the
Principal.
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7.2
Management Fee
7.2.1
7.3
The Management Fee is calculated at the end of each Reporting Period
during the Term, by multiplying:
7.2.1.1
the total (GST-exclusive) amount invoiced in the relevant
Reporting Period to all Customers in relation to the supply of
the Deliverables during that Reporting Period (based on the
Prices in the Pricing Schedule); and
7.2.1.2
the percentage shown in Item 6 of Schedule A.
7.2.2
The amount of the Management Fee will not under any circumstances be
shown as a separate charge in any quote or invoice to a Customer.
7.2.3
The Contractor agrees that the Principal may treat all purchases of
Deliverables by Customers as Orders under this Deed, whether or not the
Contract Number is quoted, unless the Contractor can provide evidence,
to the satisfaction of the Principal, that the purchase was made under
some other validly tendered contract between the Customer and the
Contractor.
7.2.4
The Contractor agrees that the Management Fee payable has been
allowed for in the Prices specified in the Price Schedule together with all
costs associated with the calculation and proving payment of the
Management Fee.
Reporting
7.3.1
Within 14 days after the end of each Reporting Period, the Contractor
shall provide to the Principal a Report (the Sales Report) via the
Principal’s online reporting system [or other manual system] which
reports the:
7.3.1.1
total amount, exclusive of GST, which all Customers are liable
to pay in respect of all items invoiced by the Contractor during
that Reporting Period in respect of the Deed (or if no sales
have occurred, a ‘nil’ return); and
7.3.1.2
the sales information as set out in Item 7 of Schedule A ("the
sales information"), or as the Principal requests in writing
from time to time.
7.3.2
Following receipt of a Sales Report, the Principal shall compile a tax
invoice based on the Sales Report and the Management Fee calculation
method set out in clause 7.2.1 and forward that invoice to the Contractor.
The Contractor shall then forward payment to the Principal within 14 days
after the date of the invoice.
7.3.3
Where the Contractor has submitted three (3) consecutive ‘nil’ returns
pursuant to clause 17.3.1.1, the Principal may request a meeting to be
held at the Principal’s office (or if acceptable to the Principal by
telephone) to discuss the reasons for the ‘nil’ returns. If so requested by
the Principal, the Contractor shall provide a detailed marketing and sales
engagement strategy for the next Reporting Period.
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7.3.4
If requested in writing by the Principal, the Contractor must within 30
days after the end of the Contractor's financial year, provide to the
Principal a certificate prepared by an independent auditor confirming the
accuracy of all sales information provided by the Contractor as to
Deliverables sold or provided and the Management Fee paid or payable.
7.3.5
The Principal may at its own cost, take such measures as it considers
reasonable in the circumstances (including the appointment of an auditor)
to verify the amount of the Management Fee due to the Principal by the
Contractor.
7.3.6
If the measures taken in clause 7.3.4 and 7.3.5 verify that the Contractor
has not paid the Management Fee that is actually due to the Principal, the
Contractor must:
7.3.6.1
remit the difference between the Management Fee paid to the
Principal and the Management Fee actually due to the
Principal within 30 days of a direction from the Principal; and
7.3.6.2
at the discretion of the Principal, reimburse the Principal's
costs and expenses of the measures taken (including any
auditor's fees) under clause 7.3.5 to the Principal.
7.3.7
The Contractor shall during the Term of this Deed and for a 48 month
period after the Deed has expired or is terminated, keep secure all
relevant documents and information for the purposes of this clause and
give any auditor appointed by the Principal access to those documents
and information at all reasonable times.
7.3.8
In the event that a Contractor agrees to, or supplies the Deliverables to a
Customer during the Term, the Contractor is obliged to pay a
Management Fee for those Deliverables and any further deliverables
supplied to that Customer during the Term, on the terms of this Deed.
7.3.9
The Principal shall be entitled to immediately Suspend the Contractor
pursuant to clause 4.3 or terminate this Deed where the Contractor;
7.3.9.1
fails to attend a meeting and/or provide the detailed
marketing and sales engagement strategy requested by the
Principal pursuant to clause 7.3.3;
7.3.9.2
fails to implement the
engagement strategy;
7.3.9.3
submits four ‘nil’ returns; or
7.3.9.4
fails to comply with clause 7.3.2 in which case the Principal
may recover the unpaid Management Fees as a debt due and
owing to the Principal.
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detailed
marketing
and
sales
Page 24
8
8.1
PERFORMANCE MONITORING
Monitoring of performance
The Contractor must meet with the Principal from time to time, as reasonably directed by the
Principal, to evaluate and monitor performance of this Deed (including Customer Contracts)
by the Contractor on the basis of the criteria specified by the Principal or otherwise agreed
by the parties.
8.2
Exchange of Contractor information
The Contractor authorises the Principal and its employees and agents to make available to
Customers information concerning the Contractor, including any information provided by the
Contractor to the Principal and any information relating to the Contractor's performance
under the Deed, or the Contractor's financial position.
9
9.1
TERMINATION
Termination for cause
9.1.1
9.2
Without prejudice to its rights at common law, the Principal may
immediately terminate this Deed, by written notice to the Contractor (a
Notice of Termination for Cause):
9.1.1.1
where the Contractor makes any statement, fact, information,
representation or provides material which is false, untrue, or
incorrect in a way which adversely affects the Deed;
9.1.1.2
where proceedings or investigations are commenced or
threatened by the Independent Commission Against
Corruption, Australian Competition and Consumer Commission
or similar public body against the Contractor including for
corrupt conduct or for collusive pricing;
9.1.1.3
where the Contractor commits a substantial breach of the
Deed that is not capable of remedy;
9.1.1.4
where the Contractor commits a substantial breach of the
Deed in a manner that is capable of remedy and does not
remedy the breach within 7 days of receiving a notice from
the Principal requiring it to do so (Notice of Breach), or such
further time, having regard to the nature of the breach and a
reasonable time to remedy it, as the Prinicpal may reasonably
allow;
9.1.1.5
where the Contractor has been suspended from the Deed
pursuant to clause 4 for more than thirty (30) days;
9.1.1.6
if the Contractor becomes Insolvent; or
9.1.1.7
as otherwise explicitly provided for in this Deed.
Effect of Termination for cause by Principal
9.2.1
If the Principal terminates this Deed under clause 9.1.1 the Principal may:
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9.3
9.2.1.1
contract with any other person to complete the provision of
the Deliverables including but not limited to any Order
remaining to be filled; and
9.2.1.2
deduct reasonable loss or damages arising from or in
connection with the termination, including any loss or
damages incurred by a Customer under any Customer
Contract (which may be ascertained and certified by the
Principal), from any money due, or which may become due to
the Contractor (whether under this Deed or any Customer
Contract) and/or from the Security (if any); and
9.2.1.3
recover from the Contractor in an appropriate court the
balance of any monies remaining unpaid as a debt due and
payable by the Contractor to the Principal.
9.2.1.4
The Principal's termination under clause 9.1.1 will not affect
any Customer Contract unless the context requires it.
Termination at Will
9.3.1
9.4
No earlier than 12 months after the Commencement Date, the Principal
may, upon giving the Contractor not less than one Month's prior written
notice, terminate this Deed. At the end of the notice period, this Deed will
be at end.
Effect of Termination on Customer Contract and Rights and Obligations of
Parties
9.5
9.4.1
Termination of this Deed under clause 9 by the Principal will not affect
any Customer Contract unless the Customer requires for the relevant
Customer Contract to be terminated.
9.4.2
Termination of the Deed under clause 9 will not affect the rights and
obligations of the parties that have accrued up to the date of termination.
9.4.3
For the avoidance of doubt, termination or expiry of this Deed shall not
in any way affect the Contractor’s liability to pay the Management Fees
which may be claimed as a debt due by the Principal.
Clauses which Survive Expiry or Termination
Clauses 1, 2.3, 5.6, 5.7, 5.11, 7, 8.2, 9.5, 11, 12 and 13 (inclusive) shall survive the expiry or
termination of this Deed.
10 DISPUTE RESOLUTION
10.1
Procedure for Resolving Dispute
10.1.1
The parties agree to attempt in good faith to resolve through negotiation
any dispute regarding the Deed.
10.1.2
If a dispute arises between the parties which cannot be resolved at an
operational level, either party may give written notice of the dispute to
the other party (a “Dispute Notice”). A Dispute Notice must adequately
identify and provide details of the dispute.
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10.1.3
10.2
Following receipt of a Dispute Notice the following process shall be
followed:
10.1.3.1
each party must submit the dispute to one of its senior
officers who has not previously been involved in the dispute
(“Negotiators”) within 3 Business Days of receipt of the
Dispute Notice.
10.1.3.2
the Negotiators must meet as soon as practicable to resolve
the dispute; and
10.1.3.3
if the Negotiators cannot resolve the dispute within 14 days of
its reference to them (or such other time period as may be
agreed between them), either party may submit the dispute to
arbitration in accordance with, and subject to, The Institute of
Arbitrators & Mediators Australia Arbitration Rules. The
arbitrator’s decision shall be final and the arbitrator’s costs
shall be borne by the losing party unless otherwise
determined by the arbitrator.
Continuing Obligations & Injunctive Relief
10.2.1
Notwithstanding the existence of a dispute each party must continue to
perform its obligations under each Customer Contract.
10.2.2
Nothing in this clause 10 shall prejudice the right of a party to institute
proceedings to enforce payment due under the Deed or to seek injunctive
or urgent interlocutory relief in respect of a dispute under this clause 10
or any matter arising under the Deed.
11 CONFIDENTIALITY, INTELLECTUAL PROPERTY, PRIVACY & RIGHT TO
INFORMATION
11.1
Confidentiality
11.1.1
Subject to clauses 11.1.2 and 11.1.4, neither party is to disclose any
Confidential Information in connection with this Deed to any person other
than the other party without first obtaining the written consent of the
other party.
11.1.2
Either party may disclose the Confidential Information to its officers,
employees and agents, professional advisors or a Customer where the
disclosure is necessary to carrying out their duties for the purposes of this
Deed.
11.1.3
Each party must ensure that the Confidential Information is used solely in
connection with, or for the purposes of, the provision of Deliverables or
administering the Deed.
11.1.4
This clause 11.1 does not affect either party’s obligation to disclose any
Confidential Information that is required to be disclosed by law (including
for the avoidance of doubt under right to information legislation).
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11.2
Intellectual Property
11.2.1
11.3
Privacy
11.3.1
11.3.2
11.4
Unless otherwise set out in the Specification, this Deed shall not affect the
intellectual property rights of either party.
Where the Contractor or its subcontractors have access to or are
responsible for holding personal information, the Contractor must:
11.3.1.1
comply with all relevant information privacy legislation; and
11.3.1.2
ensure that personal information is protected against loss,
unauthorised access, use, modification or disclosure, and
against other misuse; and
11.3.1.3
not use personal information other than for the purpose of the
Deed, unless required or authorised by law; and
11.3.1.4
not disclose the personal information without the written
agreement of the Principal, unless required or authorised by
law; and
11.3.1.5
not transfer the personal information outside Australia without
the consent of the Principal; and
11.3.1.6
ensure that its personnel do not access, use or disclose the
personal information other than in the performance of their
duties; and
11.3.1.7
immediately notify the Principal if it becomes aware that a
disclosure of personal information is, or may be, required or
authorised by law; and
11.3.1.8
fully cooperate with the Principal, to enable the Principal to
respond to applications for access to, or amendment of, a
document containing an individual’s personal information and
to privacy complaints; and
11.3.1.9
comply with such other privacy and security requirements as
the Principal reasonably advises the Contractor from time to
time.
Where the Principal is not reasonably satisfied, on the basis of information
provided to it by the Contractor, that proper practices are in place to
ensure that the privacy and disclosure of information requirements for
Personal Information are being observed and maintained, the Principal
may at any time require the Contractor to make its subcontractors aware
of its obligations, in accordance with this clause 11.3 including, when
requested by the Principal, requiring any subcontractor to promptly sign a
privacy undertaking in a form approved by the Principal.
Right to Information
11.4.1
The Contractor accepts and acknowledges that the Principal may be
subject to the provisions of right to information legislation and that
information relating to the Request for Tender, Tender, this Deed,
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Customer Contract, RFQ and/or Order may be subject to disclosure to
third parties.
11.4.2
The Contractor shall clearly label
cause harm if disclosed (for
information, information with a
reasoning supporting its position
the Principal.
any information which it believes may
instance; trade secrets, confidential
commercial value) and provide the
prior to disclosing such information to
11.4.3
Notwithstanding clause 11.4.2 above, the Contractor accepts and
acknowledges that the Principal is unable to guarantee that any
information provided by the Contractor to the Principal will not be
disclosed under the provisions of the right to information legislation.
11.4.4
The Contractor accepts and acknowledges that there is no obligation
whatsoever on the Principal to advise the Contractor of the receipt of a
request for information, the decision made (or reasoning behind any such
decision) or the details surrounding the release of any documents.
12 NO LIABILITY
12.1
No Liability
12.1.1
The Contractor acknowledges and agrees that subject to clause 5.11.2,
the Principal is not liable to the Contractor for any loss, cost, expense or
damage (including by way of a claim under contract, tort (including
negligence) statute or otherwise) arising out of or in connection with this
Deed except when the Principal is acting in its own capacity as a
Customer.
12.1.2
To the extent any liability of the Principal cannot be excluded by law, and
to the maximum extent permitted by law, the Principal's liability under
this Deed shall be limited to one hundred dollars ($100.00).
13 GENERAL
13.1
Amendment
This Deed may only be varied or replaced by a document duly executed by the parties.
13.2
Entire Understanding
This Deed contains the entire understanding between the parties as to the subject matter
contained in it.
All previous deeds, representations, warranties, explanations and
commitments, expressed or implied, affecting this subject matter are superseded by this
Deed and have no effect.
13.3
Further Assurance
Each party must promptly execute and deliver all documents and take all other action
necessary or desirable to effect, perfect or complete the transactions contemplated by this
Deed.
13.4
Security/Performance Guarantee
13.4.1
The Contractor shall on or before the date of this Deed provide to the
Principal the Security.
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13.5
13.6
13.4.2
The purpose of the Security is to secure the due and proper performance
by the Contractor of its obligations under this Deed.
13.4.3
If the Contractor fails to perform (or to properly perform) any of its
obligations under this Deed, the Principal may have recourse to the
Security, or part of the Security on demand.
Force Majeure
13.5.1
A party will not be entitled to exercise its rights or remedies upon the
default of another party to the Deed (whether at common law or pursuant
to the Deed) if that default is caused by a Force Majeure Event.
13.5.2
Without limitation, where the Force Majeure Event continues for a period
of more than 14 days, the Principal may terminate the Deed by giving
written notice to the Contractor.
No Assignment or Novation
The Contractor must not assign or novate this Deed without first obtaining the prior written
consent of the Principal.
13.7
Subcontracting
The Contractor may subcontract part or all of the performance of any of the Deliverables
under a Customer Contract to a subcontractor approved in writing by the Principal from time
to time or identified in Schedule A. The Contractor will continue to be bound by, and
responsible for the performance of, the Customer Contract and will remain responsible for
the acts and omissions of any sub-contractor as if such acts and omissions were those of the
Contractor itself, notwithstanding that part or all of it may have been subcontracted.
13.8
Marketing and Promotion
13.8.1
No information relating to the acceptance of any Tender or the provision
of the Deliverables under the Deed may be published in any advertising
medium without the prior written approval of the Principal. The written
approval must clearly indicate the precise material to which the
information is to be provided.
13.8.2
The Contractor may only use the Principal’s logo in the Contractor’s
marketing strategy upon receipt of the Principal’s written confirmation to
do so. Such use of the Principal’s logo shall be solely limited to the
marketing of the Contractor’s services as they apply to the provision of
the Deliverables.
13.8.3
The Contractor shall actively promote the Deed during the Term, and
liaise with the Principal to establish a marketing plan that ensures that the
Contractor’s marketing strategy is effective and consistent with the
Principal’s marketing strategies.
13.8.4
The Contractor shall ensure that all information contained on the
Principal’s website about their company and the Deliverables is kept up to
date at all times and advise the Principal promptly when changes need to
be made.
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13.9
13.10
13.11
Financial Viability
13.9.1
The Contractor shall advise the Principal immediately if the Contractor’s
financial viability is compromised to the extent that the compromise could
reasonably be considered to be a risk to the provision of the Deliverables
in accordance with the terms and conditions of this Deed.
13.9.2
The Contractor shall provide the Principal with audited financial
statements and/or a current original signed letter from a qualified
accountant addressed to the Principal which details and explains the
current and prospective financial viability of the Contractor, within
fourteen (14) working days of the date of issue of any letter from the
Principal to the Contractor requesting such.
13.9.3
Where the Principal has reasonably held concerns about the financial
viability of the Contractor, the Principal shall be entitled to suspend the
Contractor pursuant to clause 4.3.
Notices
13.10.1
Notices under the Deed may be delivered by pre-paid postage or certified
mail, by hand, or by facsimile transmission. Notices are deemed given
5 days after deposit in the mail with postage pre-paid or certified, when
delivered by hand, or if sent by facsimile, upon completion as evidenced
by a facsimile transmission record. Where a notice is given by facsimile
the original document must be posted on the same day as the
transmission is sent. The addresses for service of notices are the
addresses as shown in this Deed.
13.10.2
A party may change its address for service of notices by giving written
notice to the other party to the Deed.
Supplier Transition
In the event that a Customer changes its supplier of the Deliverables, and this change of
suppliers involves the transfer of infrastructure or information to occur between a previous
supplier and the Contractor or the Contractor and a new supplier, the Contractor shall at no
additional cost to the Customer do all things reasonably within its power to ensure the
transition is efficient, orderly, prompt and timely.
13.12
Meetings and Reporting
The Contractor shall at no extra cost supply such reports and attend such meetings as are
reasonably requested by the Principal from time to time.
13.13
Legal Costs and Expenses
Each party must pay its own legal costs and expenses in relation to the negotiation,
preparation and execution of this Deed and other documents referred to in it, unless
expressly stated otherwise.
13.14
GST
13.14.1
In this clause words that are defined in the GST Act have the same
meaning as their definition in the GST Act.
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13.15
13.14.2
Except as otherwise provided by this clause, all Consideration payable
under this Deed in relation to any supply is exclusive of GST.
13.14.3
If GST is payable in respect of any supply made by a supplier under this
Deed, subject to clause 13.14.4 the recipient will pay to the supplier an
amount equal to the GST payable on the supply at the same time and in
the same manner as the Consideration for the supply is to be provided
under this Deed.
13.14.4
The supplier must provide a tax invoice to the recipient before the
supplier will be entitled to payment of the GST payable under clause
13.14.3.
Stamp Duty
The Contractor must pay all stamp duty (including all fines and penalties except those arising
from the default of another party) on this Deed and any document executed under it.
13.16
13.17
Waiver and Exercise of Rights
13.16.1
A single or partial exercise or waiver of a right relating to this Deed does
not prevent any other exercise of that right or the exercise of any other
right.
13.16.2
No party will be liable for any loss or expenses incurred by another party
caused or contributed to by the waiver, exercise, attempted exercise,
failure to exercise or delay in the exercise of a right.
Survival of Indemnities
Each indemnity in this Deed is a continuing obligation, separate and independent from the
other obligations of the parties and survives termination of this Deed.
13.18
Enforcement of Indemnities
It is not necessary for a party to incur expense or make payment before enforcing a right of
indemnity conferred by this Deed.
13.19
No Merger
The warranties, undertakings, deeds and continuing obligations in this Deed do not merge
on completion.
13.20
Negation of Employment Agency
13.20.1
The Contractor must not represent itself or allow itself to be represented
as being an employee or agent of the Principal or any Customer.
13.20.2
The Contractor will not, by virtue of the Deed, be or become an employee
or agent of the Principal or any Customer.
13.20.3
Nothing in this Deed is to be taken or construed as creating the
relationship of a partnership, joint venture or principal and agent,
between any of the parties to the Deed.
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13.21
Governing Law and Jurisdiction
This Deed is governed by and is to be construed in accordance with the laws of New South
Wales, Queensland, South Australia and Victoria. Each party irrevocably and unconditionally
submits to the non-exclusive jurisdiction of the courts in New South Wales, Queensland,
South Australia and Victoria and waives any right to object to proceedings being brought in
those courts.
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EXECUTED by the parties as a deed:
EXECUTED by LOCAL BUY PTY LTD
ACN 090 446 487 by being signed by
those persons who are authorised to
sign for the company:
)
)
)
)
..................................................................
Director
..................................................................
Full name
..................................................................
Usual address
..................................................................
Director (or Company Secretary)
..................................................................
Full name
..................................................................
Usual address
EXECUTED Geminex Pty Ltd
T/A Totally Workwear Richmond
ABN 70 090 580 760 ACN 090 580 760
by being signed by those persons who are
authorised to sign for the company:
)
)
)
)
..................................................................
Director
..................................................................
Full name
..................................................................
Usual address
..................................................................
Director (or Company Secretary)
..................................................................
Full name
..................................................................
Usual address
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Schedule A
Deed Details
Item 1
Request for Tender for Contract Number NPN 2.11 issued on 2nd of April,
2011.
Item 2
Contractors Name: Geminex Pty Ltd T/A Totally Workwear Richmond
ABN 70 090 580 760 ACN 090 580 760
Item 3
Item 4
Approved Subcontractors: NIL
Term: Two (2) years
Commencement Date: 11th of July, 2011.
Expiry Date: 15th of July, 2013.
Item 5
Extension Period: Two (2) terms each of up to twelve (12) months.
Extension commencement date: 15th of July, 2013.
Latest Expiry date: 15th of July, 2015.
Broad Form Liability Insurance Policy Amount
(a)
(b)
Public Liability Insurance Limit of Indemnity: $AUS_20 Million
Product Liability Insurance Limit of Indemnify: $AUS_10 Million
Item 6
Management Fee Rate: 2.5%
Item 7
Sales Information: Per Specification - Online Reporting
Item 8
Item 9
Security: NIL
Initial Administration Fee: Nil
Annual Administration Fee: Nil
Reactivation Fee: Nil
Item 10 Reporting Period:
New South Wales and South Australia – Monthly
Queensland and Victoria - Quarterly
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Schedule B
Price Schedule
Refer Pricing Schedule (Part 3 Schedule 4 of the ETRF) as submitted at time of
tender submission. Tender close: 3rd of May, 2011.
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Schedule C
Customers (in New South Wales)
• Any council within the meaning of the Local Government Act 1993 (NSW)
• Any Aboriginal Land Council within the meaning of the Aboriginal Land Rights Act
1983 (NSW);
• any Voluntary Regional Organisation of Councils as referred to in the Local
Government Act 1993 (NSW);
• the Local Government Association of New South Wales;
• the Shires Association of New South Wales;
• the Principal acting in its own capacity.
This contract will also be available to the following bodies where permitted by their
procurement policies or guidelines:
• Specific non-profit organisations and/or charities, where approved by Local
Government Procurement Pty Ltd.
• New South Wales State Government bodies where a State Contracts Control Board
(SCCB) contract does not exist for the deliverables listed under this Preferred Supplier
Arrangement Deed.
Customers (in Queensland)
• Queensland Local Governments
• Queensland Regional Organisation of Councils (ROCS)
• Queensland statutory authorities
• Queensland water authorities
• Queensland Ports
• Queensland State Government departments and agencies
• Queensland based charity or not-for-profit organisations.
And any other organisation that may reasonably be considered as a Queensland public
sector, government or government related body.
Customers (in South Australia)
• Any council or subsidiary constituted within the meaning of the Local Government
Act 1999 (SA) as amended and other organisations as follows: Adelaide Hills
Region Waste Management Authority, Adelaide Parklands Authority, Centennial
Park Cemetary Authority, Central Local Government Region, East Waste
Management Authority, Eastern Health Authority Inc., Eyre Peninsula Local
Government Association, Fleurieu Regional Authority, Flinders Mobile Library,
Gawler Flood Plains Management Authority, Highbury Landfill Authority, Local
Government Risk Services, Local Government Systems Inc., Local Government
Managers Association SA Division Inc., Local Super Pty Ltd, Murray & Mallee Local
Government Association, Murray Mallee Community Transport Scheme, North
Adelaide Waste Management Authority, Nuriootpa Centennail Park Authority,
Outback Areas Community Development Trust, Provincial Cities SA, Queen
Elizabeth Park Trust, Rundle Mall Authority, South East Local Government
Association, Southern & Hills Local Government Association, Southern Eyre
Peninsula Subsidiary, Southern Region Waste Resource Authority, Waste Care,
Waterproofing Northern Adelaide Regional Subsidiary, West Beach Trust, Western
Region Waste Management Authority, Local Government Association of South
Australia, Local Government Finance Authority of South Australia or the Principal
acting in its own capacity.
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Customers (Victoria)
Alpine Shire Council, Bass Coast Shire Council, Baw Baw Shire Council, Casey City Council,
Colac Otway Shire Council, East Gippsland Shire Council, Frankston City Council, Glenelg
Shire Council , Greater Shepparton City Council, Hepburn Shire Council, Hobsons Bay City
Council, Macedon Ranges Shire Council, Maribyrnong City Council, Moreland City Council,
Moyne Shire Council, Northern Grampians, Towong Shire Council, Warrnambool City
Council, Whitehorse City Council, Wyndham City Council and Yarriambiack Shire Council.
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Schedule D
Standard terms of Contract between a Customer and the Contractor
STANDARD TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS
1.
Formation of Customer Contract and Interpretation
1.1
The contract between the Customer and the Contractor comprises these terms and
conditions and the Order (together the Customer Contract). To the extent of any
inconsistency, these terms and conditions take precedence.
1.2
The Customer Contract shall commence on the date specified in the relevant Order
and shall expire, unless terminated earlier, once the Deliverables have been supplied
to the satisfaction of the Customer.
1.3
Except where the context otherwise requires, the definitions and rules of
interpretation set out in clause 1 of the deed entitled Preferred Supplier Arrangement
Deed (Contract Number: NPN 2.11) to which this Customer Contract forms a
schedule shall apply to this Customer Contract.
2.
Entire Agreement
2.1
The Customer Contract constitutes the only terms that apply to a Customer’s
purchase of Deliverables.
2.2
A Customer will not be bound by any other terms of the Contractor, even if a
Customer has signed an invoice or similar document which incorporates additional
terms.
3.
Incorporation of Schedules
3.1
The Customer and the Contractor agree that Schedule B (Price Schedule) and
Schedule D of the Deed, as amended from time to time in accordance with the
provisions of the Deed, are incorporated by reference into this Customer Contract as
if they are set out in this Customer Contract.
3.2
The Contractor must notify the Customer of any amendments that may be made from
time to time to schedules.
4.
Request for Quotation and Ordering Process
4.1
Request for Quotations
4.1.1
A Customer may submit an RFQ with further information and specifications of
their requirements and/or required accessories, spare parts, maintenance and
training services.
4.1.2
Where the Contractor wishes to submit a quotation, the Contractor must respond
to a Customer RFQ in writing within the period set out in the Customer’s RFQ or
as otherwise agreed with the relevant Customer.
4.1.3
If the Contractor is unable to meet any of the requirements of a specific RFQ, this
should clearly be noted in the Contractor’s RFQ response.
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4.2
4.1.4
Any free services which the Contractor nominates to supply, additional to those
specified and which the Contractor accepts, shall be carried out in accordance
with the details supplied by the Contractor at a time and place approved by the
Customer.
4.1.5
A Customer may seek clarifications following receipt of a Contractor’s RFQ
response.
4.1.6
Customers are not bound to accept a RFQ response received from the Contractor
or any other supplier on the Preferred Supplier arrangement even where such
RFQ is the lowest in price.
4.1.7
If the Contractor’s RFQ response is selected following the RFQ process, the
Customer shall accept the Contractor’s offer by issuing an Order pursuant to
clause 4.2 below.
Orders
4.2.1
Each Order placed by a Customer with the Contractor shall incorporate (and any
inconsistency or ambiguity shall be resolved in the following order of precedence
- listed in order of descending importance):
4.2.1.1
4.2.1.2
4.2.1.3
4.2.1.4
4.2.1.5
4.2.2
the
the
the
the
the
Customer Contract;
requirements of the Order;
requirements of the relevant RFQ;
Contractor’s RFQ response; and
Specification.
Where the Contractor receives an Order from a person other than a notified
Authorised Officer or which does not list the Principal’s relevant Contract Number,
the Contractor must:
4.2.2.1
4.2.2.2
not supply the Deliverables identified in the Order; and
refer the Order to the relevant Authorised Officer.
4.2.3
A Contractor must not supply other categories of goods and/or services other
than those tendered and appointed for under the Deed without the prior written
approval of the Principal.
4.2.4
Subject to clauses 4.2.5, 4.2.6 and 4.2.7, a Customer may include special
conditions in any Order which add to the Customer Contract. These special
conditions will only be valid should both the Customer and Contractor agree to
them. For the avoidance of doubt, the Contractor shall be deemed to have agreed
to such special conditions where the special conditions are clearly set out in an
RFQ issued by the Customer and the Contractor commences provision of the
Deliverables pursuant to a resulting Order.
4.2.5
Where the special conditions are likely to constitute a material change to the
Customer Contract (determined by the parties acting reasonably and in good
faith), the parties must seek the approval of the Principal prior to the Order being
issued. Until such time as the Principal has approved the use of the special
conditions, any resulting Order shall not constitute a valid exception to the
Customer’s mandated tendering processes.
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4.2.6
If on review of the special conditions the Principal finds that the special conditions
of an Order substantially conflict with the terms and conditions of the Deed or the
Customer Contract, the Principal shall consult the Customer and Contractor to
resolve the matter.
4.2.7
If the matter cannot be resolved as set out above, the Principal may deem the
relevant Order as being non-compliant with the terms of the Deed and as such
not constituting a valid exception to the Customer’s mandated tendering
processes.
4.2.8
For the avoidance of doubt, the Principal may request a copy of an Order, RFQ or
quotation (or associated information) from either party at any time and the party
to whom the request is directed shall provide the Principal with such
documentation or information within 7 days of the request (or such other time
period as may be agreed between the Principal and the relevant party).
5.
Price
5.1
In circumstances where a Customer does not undertake an RFQ process before
issuing an Order, all Deliverables are to be supplied at the Prices as specified in the
Price Schedule (which may be amended in accordance with the Deed from time to
time). All prices stated in the Order are firm, and are not subject to any escalation.
6.
Supply of Deliverables
6.1
The Contractor must supply the Deliverables to a Customer in the manner, and at the
time, specified in the Order. The Deliverables must:
6.1.1 be fit for the purpose for which the Deliverables are intended to be used by a
Customer,
6.1.2 comply with the requirements of the Order and Specification;
6.1.3 be of merchantable quality,
6.1.4 conform with samples provided to a Customer (if any), and
6.1.5 carry any applicable manufacturer’s warranties, which must be passed to a
Customer on the supply of the Deliverables.
6.2
Upon it becoming evident to the Contractor that the supply of the Deliverables is
likely to be delayed, the Contractor must promptly notify the Customer in writing.
Such notification shall not release the Contractor from its obligation to supply the
Deliverables by the time specified in the Order (subject to the delay being caused by
a force majeure event).
6.3
The Contractor shall not be entitled to any increase in the Contract Price or damages,
costs or expenses in connection with any delay unless the delay has been caused, or
contributed to, by the Customer.
6.4
Unless otherwise provided in the Order or Specification, the Contractor must pay all
packaging, freight, insurance, and other charges whatsoever, in connection with the
delivery of Deliverables and the return of any Deliverables wrongly supplied and all
packaging.
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6.5
Where it is a requirement of the Order or Specification that Deliverables must be
installed or commissioned, the Customer shall not be deemed to have accepted the
Deliverables unless the Deliverables are satisfactorily installed or commissioned within
the period stipulated in the Order or Specification or, if no period is stipulated, within
a reasonable period.
6.6
The Customer may conduct any examination or testing of the Deliverables. If the
testing shows that the Deliverables do not comply with the Order or Specification or
are otherwise defective, the cost of the testing shall be a debt due and payable by
the Contractor to the Customer.
6.7
All materials of construction shall be new and all components standardised so that
replacements can be installed without structural alteration.
6.8
Unless the Order or Specification states otherwise, all Deliverables supplied must be
in accordance with Australian Standards where such exist. Where an Australian
Standard does not exist the relevant ISO Standard shall apply.
6.9
Any repairs or replacement Deliverables provided by the Contractor under warranty
will be subject to at least the same warranty as the original Deliverables, from the
date of repair or replacement.
6.10
Requests for repair under warranty are to be handled by the Contractor so that there
is only one point of contact required by Customer to arrange warranty repairs.
6.11
The Contractor must, when attending any premises or facilities of the Customer,
comply with all reasonable directions and procedures as notified by the Customer,
including those relating to security and occupational health and safety.
6.12
Title in the Deliverables, free of encumbrances, passes to a Customer upon
acceptance of the Deliverables by the Customer or upon payment (whichever is the
earlier).
6.13
Risk in the Deliverables prior to acceptance by the Customer shall remain with the
Contractor except where the damage, deterioration, theft or loss results from a
negligent act or omission of the Customer or any agent or employee of the Customer.
7.
Conflict of Interest
7.1
The Contractor warrants that, to the best of its knowledge, no conflict of interest of
the Contractor, its employees, agents or subcontractors exists or is likely to arise in
the performance of its obligations under this Customer Contract.
7.2
The Contractor must:
7.2.1 notify in writing, and consult with, the Customer immediately upon becoming
aware of the existence or possibility of a conflict of interest; and
7.2.2 comply with any direction given by the Customer in relation to those
circumstances designed to manage that conflict of interest.
7.3
For the purposes of this clause, "conflict of interest" includes engaging in any activity,
or obtaining any interest, likely to conflict with the performance by the Contractor of,
or to restrict the Contractor in performing, its obligations under the Customer
Contract.
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7.4
The Customer may terminate the Customer Contract if in its view a conflict of interest
exists which prevents the proper performance of the Customer Contract
8.
Packaging
8.1
Unless otherwise agreed in writing by a Customer, the Contractor must pack the
Deliverables in a manner which is sufficiently robust and adequate, to protect the
Deliverables from damage or deterioration during transit and delivery to a Customer.
8.2
The Contractor must comply with a Customer’s reasonable directions concerning the
packing of the Deliverables (including the removal of any packaging).
9.
Warranties
9.1
The Contractor warrants to a Customer that:
9.1.1 the Deliverables will be provided by the Contractor with due care and skill and
will be free of defects in materials and workmanship;
9.1.2 the Deliverables will be provided with a warranty on any materials, parts or
labour of a minimum 12 months;
9.1.3 to the extent specified in the Order, an attachment or other formal
communication, the Contractor is aware of the requirements of a Customer,
concerning the nature and quality of the Deliverables, the purpose for which
the Deliverables are required or the result that a Customer desires the
Deliverables to achieve, and that a Customer is relying upon the Contractor’s
skill and judgement in provision of the Deliverables, and
9.1.4 the implied conditions and warranties set out in the Competition and Consumer
Act 2010 (Cth) or equivalent legislation are incorporated into this Customer
Contract as if a Customer were a consumer under that Act or equivalent
legislation.
10.
Indemnities
10.1
The Contractor is liable for and indemnifies and must keep indemnified, the Customer
and its officers, employees and agents against any claim, loss or expense (including a
claim, loss or expense arising out of personal injury, death or damage to property)
which any of them suffers, incurs or is liable for (including reasonable legal costs on a
solicitor and client basis) (together the Loss) as a result of:
10.1.1 the defective or negligent supply or non-supply of any Deliverables;
10.1.2 any unlawful, negligent, reckless or deliberately wrongful act or omission of the
Contractor (or its employees, agents or subcontractors or their employees) in
the performance of the Customer Contract; or
10.1.3 any breach by the Contractor of the Customer Contract or the Deed.
10.2
The Contractor's liability in respect of the indemnity given under this clause shall be
reduced proportionately to the extent that any breach of the Customer Contract by
the Customer, its officers, employees or agents caused or contributed to the Loss.
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10.3
Despite clause 10.1.1 and 10.1.2, the Contractor will not be liable for any special,
indirect, incidental or consequential damage arising out of or in connection with this
Customer Contract.
11.
Variation of Order
11.1
A Customer is entitled to cancel an Order at any time before the Deliverables are
delivered. If this occurs, the Contractor must take all necessary steps to mitigate any
losses which it may suffer as a result of the cancellation.
Note: This provision does not apply if a Customer cancels this Customer Contract because of
the Contractor’s default. Please read ‘Cancellation of Contract’ below.
11.2
A Customer is entitled to vary the quantity or the scope of Deliverables under an
Order. The Contractor must not vary the item price or hourly rates of the
Deliverables if the variation of quantity is 10% or less from the original Order.
12.
Rejection of Deliverables
12.1
A Customer may reject any of the Deliverables which do not comply in all respects
with this Customer Contract. The Contractor will be given reasonable opportunity to
rectify the rejected Deliverables.
12.2
Where reasonable opportunity has been provided to rectify the Deliverables, but they
remain in an unacceptable condition, the Customer may reject an entire order of
Deliverables even if only a portion of those Deliverables do not comply in all respects
with this Customer Contract.
12.3
A Customer is not required to make payment for any rejected Deliverable until
rectified. The Contractor must pay a Customer for all reasonable direct costs incurred
by a Customer in removing or returning the rejected Deliverables.
13.
Inspection of Deliverables
A Customer is entitled to inspect the Deliverables as they are used. A Customer is not
required to inspect or to reject the Deliverables within any specified time period.
14.
Payments
14.1
Subject to the Customer’s confirmation that:
14.1.1 the Deliverables supplied by the Contractor comply with the relevant Order and
the Specification; and
14.1.2 the Deliverables supplied by the Contractor are complete; and
14.1.3 the Contractor’s invoice is in accordance with the Contract,
the Customer must pay the amount due to the Contractor within 30 days of receipt of a
correctly rendered invoice (or such other period as may be mutually agreed in writing
between the parties) or, if additional information is required by the Customer, within 30 days
(or such other period as may be mutually agreed in writing between the parties) after receipt
of the additional information.
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14.2
Upon receipt of an invoice, the Customer may require the Contractor to provide
additional information to assist the Customer to determine whether or not an amount
is payable.
14.3
A correctly rendered invoice must:
14.3.1 identify the Deliverables the subject of the invoice; and
14.3.2 specify the title of the Contract; and
14.3.3 specify the Contract number allocated to the Contract by the Principal as well as
any other number the Customer may specify in writing to the Contractor for the
purposes of the Customer Contract)(if any); and
14.3.4 where Deliverables are charged on a time basis, be supported by records of
time spent by individual persons on the Services, verified by the Customer; and
14.3.5 specify details of the Order; and
14.3.6 specify details of the Contract Price requested by the Customer; and
14.3.7 provide sufficient detail to enable the Customer to assess progress against
targets (if any) set out in the Order; and
14.3.8 specify the Australian Business Number of the Contractor; and
14.3.9 specify the address for payment of the Contractor; and
14.3.10
specify the date of supply of the Deliverables identified in the invoice; and
14.3.11
specify the Contractor’s invoice number and invoice date; and
14.3.12
specify the Contract Price payable by the Customer and particulars of any
GST payable in respect of the Contract Price; and
14.3.13
otherwise comply with the requirements of a tax invoice for the purposes
of the GST Act.
14.4
If the Customer pays an invoiced amount to the Contractor, and it is subsequently
found not to have been a correctly rendered invoice, the Customer may deduct any
overpaid amount owed to the Customer from the next invoiced payment or, if no
other payment is due to the Contractor pursuant to the Contract, recover the amount
from the Contractor as a debt due and payable to the Customer.
14.5
Payment of money to the Contractor does not constitute an admission by the
Customer that Deliverables have been supplied in accordance with the Contract.
14.6
Upon payment for the Deliverables, property in that part of the delivery comprising
the Deliverables shall pass to the Customer.
14.7
Payment shall include credit by way of set off.
14.8
Failure by the Customer to pay the amount payable by the due time will not be
grounds to invalidate or avoid the Customer Contract.
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14.9
The Contractor shall not be entitled to any interest or charge for extending credit or
allowing time for the payment of the Contract Price unless otherwise provided in the
Order.
14.10 The Customer may deduct from moneys due to the Contractor under the Contract or
on any other account, any moneys due from the Contractor to the Customer, and if
those moneys are insufficient, the Customer may have recourse to any security held
by the Customer under the Contract. Nothing in this Clause shall affect the right of
the Customer to recover from the Contractor any moneys due from the Contractor to
the Customer or any balance that remains owing after the deduction of moneys due
from the Contractor to the Customer.
14.11 If the Contractor complies with its obligations under this Customer Contract, a
Customer must make the payments duly invoiced to a Customer by a Contractor in
relation to the provision of the Deliverables at Prices in accordance with the Price
Schedule.
14.12 Unless otherwise agreed in writing, a Customer must make such payment by the end
of the month following the month of invoice.
15.
Termination
15.1
A Customer may terminate this Customer Contract and related Order:
15.1.1 if the Deliverables or any part of the Deliverables are not delivered or provided
within the time specified in the Order, or
15.1.2 if the Contractor does not comply with a material term of this Customer
Contract and, the breach is not remedial, or
15.1.3 if the Contractor does not comply with a material term of this Customer
Contract and, where the breach is remedial, does not remedy it within 30 days
of receiving notice to do so from the Customer or
15.1.4 if the Contractor becomes or is likely to become Insolvent, ceases to trade,
enters into any form of financial administration; or
15.1.5 the Order does not constitute a valid exception to the Customer’s mandated
tendering processes
15.1.6 at convenience, provided the Customer agrees to pay all outstanding money for
work satisfactorily completed as well as the Contractor’s direct costs and other
reasonable costs associated with the Customer not fulfilling its contractual
promise.
15.2
On termination under clauses 15.1.2 or 15.1.3, a Customer:
15.2.1 may refuse to accept any undelivered Deliverables,
15.2.2 may reject any delivered Deliverables,
15.2.3 is not required to make any payment to the Contractor other than for services
that comply with the Customer Contract,
15.2.4 may recover from the Contractor all direct costs incurred by a Customer in
obtaining other goods or services, in replacement of the Deliverables, and
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15.2.5 may recover from the Contractor, any other direct losses incurred by a
Customer as a result of the Contractor’s breach of the Customer Contract or the
Deed.
16.
Sub-Contracting and Assignment
16.1
The Contractor may subcontract part or all of the performance of any of the
Deliverables under a Customer Contract to a subcontractor approved in writing by the
Principal from time to time or identified in Schedule A of the Deed. The Contractor
will continue to be bound by, and responsible for, the performance of the Customer
Contract and will remain responsible for the acts and omissions of any sub-contractor
as if such acts and omissions were those of the Contractor itself, notwithstanding that
part or all of it may have been subcontracted.
16.2
The Contractor must not, without a Customer’s prior written permission, sub-contract
or assign any part of its rights and obligations under this Customer Contract. A
Customer is not required to make any payment to any sub-contractor or assignee of
the Contractor.
17.
Confidentiality
17.1
The parties must not disclose to any person, any Confidential Information concerning
this Customer Contract and the Order, and any other information acquired by the one
party in its dealings with the other party, unless where:
17.1.1 such information is in the public domain, other than through disclosure by the
Contractor;
17.1.2 is approved in writing by the other party;
17.1.3 disclosure is made to the party’s professional legal, audit or financial advisers;
or
17.1.4 such disclosure is required by law (but only to the extent of such required
disclosure).
17.2
Both parties acknowledge that all information provided by either party to the other
party under this Customer Contract remain the property of the providing party.
18.
Statutory Requirements
18.1
The Contractor must obey, and must ensure that its employees, sub-contractors and
agents obey, all laws, regulations and any codes of conduct which apply to the
Contractor’s performance of this Customer Contract. This includes, without limitation,
laws relating to occupational health and safety.
19.
Dispute Resolution
19.1
Disputes in relation to this Customer Contract must be resolved in accordance with
this clause 19.
19.2
Either party may, in a case of genuine urgency, seek immediate interlocutory relief or
an interim remedy.
19.3
Other than in respect of clause 19.2, any dispute must be resolved as follows:
19.3.1 each party must submit the dispute to one of its senior officers who has not
previously been involved in the dispute (“Negotiators”) within 3 days of the
dispute arising;
19.3.2 the Negotiators must meet as soon as practicable to resolve the dispute;
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19.3.3 if the Negotiators cannot resolve the dispute within 14 days of its reference to
them (or such other period as may be agreed), each Negotiator must prepare a
written summary of his or her attempts to resolve the dispute and refer that
summary to the Principal; and
19.3.4 if the Principal cannot resolve the dispute within 14 days of its reference to it
(or such other period as may be agreed between the parties), either party may
submit the dispute to arbitration in accordance with, and subject to, The
Institute of Arbitrators & Mediators Australia Arbitration Rules. The arbitrator’s
decision shall be final and the arbitrator’s costs shall be borne by the losing
party unless otherwise determined by the arbitrator.
19.4
Notwithstanding the existence of a dispute each party must continue to perform its
obligations under this Deed.
20.
General
20.1
Amendment
This Customer Contract may only be varied or replaced by a document duly executed by
the parties.
20.2
Further Assurance
Each party must promptly execute and deliver all documents and take all other action
necessary or desirable to effect, perfect or complete the transactions contemplated by
the Customer Contract.
20.3
GST
20.3.1 In this clause words that are defined in the GST Act have the same meaning as
their definition in the GST Act.
20.3.2 Except as otherwise provided by this clause, all consideration payable under this
Deed in relation to any supply is exclusive of GST.
20.3.3 If GST is payable in respect of any supply made by a supplier under a Customer
Contract, subject to clause 20.5.4 the recipient will pay to the supplier an amount
equal to the GST payable on the supply at the same time and in the same
manner as the consideration for the supply is to be provided under the Customer
Contract.
20.3.4 The supplier must provide a tax invoice to the recipient before the supplier will be
entitled to payment of the GST payable under clause 20.5.3.
20.4
Intellectual Property
20.4.1 Subject to clause 20.4.2 the Customer Contract shall not affect the intellectual
property rights of either party.
20.4.2 Unless otherwise set out in the relevant Order, all intellectual property rights in
any design work commissioned by the Customer shall vest in the Customer.
20.5
Waiver and Exercise of Rights
20.5.1 A single or partial exercise or waiver of a right relating to the Customer Contract
does not prevent any other exercise of that right or the exercise of any other
right.
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20.5.2 No party will be liable for any loss or expenses incurred by another party caused
or contributed to by the waiver, exercise, attempted exercise, failure to exercise
or delay in the exercise of a right.
20.6
Survival of Indemnities
Each indemnity in the Customer Contract is a continuing obligation, separate and
independent from the other obligations of the parties and survives termination of this Deed.
20.7
Enforcement of Indemnities
It is not necessary for a party to incur expense or make payment before enforcing a right of
indemnity conferred by this Deed.
20.8
No Merger
The warranties, undertakings, deeds and continuing obligations in this Customer Contract do
not merge on completion.
20.9
Governing Law and Jurisdiction
The Customer Contact is governed by and is to be construed in accordance with the laws of
New South Wales, Queensland, South Australia and Victoria. Each party irrevocably and
unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales,
Queensland, South Australia and Victoria and waives any right to object to proceedings being
brought in those courts.
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Schedule E
Deliverables Specification
1.
TIMETABLE FOR PROCUREMENT
Place Advertisement in Newspaper*
Saturday, the 2nd of April, 2011 (QLD and VIC)
Tuesday the 5th of April, 2011 (NSW and SA )
Issue Request for Tender
Saturday, the 2nd of April, 2011
Close of Tender
Tuesday, the 3rd of May, 2011 at 2pm. AEST.
Evaluation of Tender Responses*
From the 4th of May to the 13th of May, 2011.
Acceptance of Tender*
Approximately W/C 16th of May, 2011.
*Dates are approximate only and subject to change.
2.
INTRODUCTION / BACKGROUND INFORMATION
2.1
The purpose of this contract is to provide Queensland, South Australia, New South
Wales, and Victoria and their respective Councils as part of the National
Procurement Network (NPN) alliance, with a ‘Preferred Supplier Arrangement’ for
the supply of Corporate Wardrobe (Goods and Services.
2.2
The National Procurement Network (NPN) is an informal alliance of Local
Government State and Territory procurement bodies, all of whom have objectives to
harness the collective buying power of Local Government and to promote best
practice procurement within the Local Government sector. Combined NPN member
contracts ease the administration burden for NPN members, councils and
contractors, enhance market share, ensure consistency and high quality contract
management.
Local Government benefits from volume predicated pricing,
centralised contract management and reporting, administrative savings, and
delegation of the costs and risks of the procurement process.
2.3
In this Request for Tender, Local Buy will, amongst other things, coordinate the
invitation and receipt of Tenders, the evaluation of the Tenders, and act as the
central contact point for contractors and for the other 4 participating NPN members
(LGCS, LGP, MAV and LB).
2.4
This Contract will be primarily available for access by Queensland, South Australia,
New South Wales, Victoria and the Northern Terrority purchasers. However a
number of other organisations are able to procure from this Contract. These are
defined in the Preferred Supplier Arrangement Deed as a ‘Purchaser’.
2.5
Local Buy ACN 090 446 487 (LB) is a wholly owned subsidiary of the Local
Government Association of Queensland Limited (LGAQ). Local Buy’s core business is
the provision of comprehensive, value adding procurement services to Queensland
Local Government. Under the Local Government Act 2009 (as amended), Local Buy
has the legislative enablement to tender on behalf of Queensland Local
Government.
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2.6
LGCS Pty Ltd trading as Local Government Corporate Services ACN 094 805 964
(LGCS) is a business unit of the Local Government Association of South Australia
Corporate and Member Services team, working solely for Councils and Local
Government entities in South Australia. LGCS is committed to identifying, developing
and delivering value-added products and services to local government throughout
South Australia and operates a suite of Contracts for the benefit of its members.
These are non-mandatory Contracts, which aggregate the purchasing power of the
sector to deliver procurement value to members. Further details regarding the role,
function and activities of the LGCS can be found on www.lgcs.com.au.
2.7
Local Government Procurement Pty Ltd ACN 117 201 046 (LGP) has been
established to provide a fully integrated procurement service to councils and
associated organisations (including Not for Profits (“NFPs”)in New South Wales. It
was formed by the Local Government and Shires Associations of New South Wales
on behalf of its members to create a full-service procurement operation dedicated to
meeting the specific needs of Local Government.
2.8
MAV is a procurement unit of the Municipal Association of Victoria ABN 24 326 561
315. MAV Procurement focuses on achieving better procurement outcomes for local
councils and is about more than just the bottom line saving that can be achieved
from economies of scale but also about supporting councils to transform services
and policy outcomes through improving the procurement strategies capacity,
capacity and practices of local government in Victoria.
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3.
PARTICULARS OF GOODS AND/OR SERVICES
The following list is a guide of goods and/or services intended to be offered under this
arrangement, it is not an exhaustive list as council requirements may require other
related products not listed. It is envisaged that all garments offered will be from a
Supplier’s “off-the-shelf range” however there may be some requirement for “made to
measure” garments.
Gender:
• Female / Male / Uni-Sex
Category
• Suiting
• Separates
• Shirting
• Accessories
• Knits and Casuals
• Corporate Footwear
• Other
Sub Category
• Belts
• Blouses
• Cardigans
• Corporate Chinos
• Corporate Polos
• Corporate Polo Fleece
• Corporate Shorts
• Dresses
• Jackets
• Jumpers
• Long Sleeve Shirts
• Pants
• Pullovers
• Scarves
• Short Sleeve Shirts
• Skirts
• Ties
• Tops / Singlets
• Trousers
• Vests
• 3/4 Length Shirts
• Footwear
• Other
Services:
• Corporate Logos (Embroidered, Patch, Transfer, Other Forms)
• Onsite Sampling Packages / On Site Fitting Services
• Made To Measure / Alterations
• Post Pick Embroidery
• Automatic Stock Replenishment / Vendor Integrated Online Ordering System
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4.
WHOLE OF RANGE
4.1
A Contractor may offer its ‘whole of range’ products provided they fall within the
general scope of this Specification.
4.2
Additional styles, fabrics, patterns or colours may be nominated by the Contractor
for approval as the range available for the Contractor updates over the life cycle of
the contract. Goods may be submitted to the NPN Lead Agency for consideration
and approval as an addition to the product listing at any time through out the term
of the arrangement.
4.3
Addition’s to the range should be made in writing (Email or Fax acceptable)
attention to the NPN Lead Agency Category Manager as per Preferred Supplier
Arrangement Deed.
4.4
Local Governments may elect to restrict the eligible range of garments made
available to their staff under a subsidised corporate uniform policy.
5.
EXCLUSIONS
5.1
•
•
•
6.
The following goods are excluded from this contract:
Work wear
Personal Protection Equipment
Personal Protection Clothing
STYLE CONSIDERATIONS
6.1
7.
Given the urban orientation of the majority of Local Government staff, the preferred
look for most office-based staff would be business oriented; however rural staff may
need to be catered for with less formal garments. Contractors may provide
alternative recommendations for both urban and rural ranging.
CLIMATE CONSIDERATIONS
7.1
Local Government employees work in a variety of environments and climates.
Given the climatic conditions and the preference of some occupational categories to
wear anti-static clothing, alternatives offering high cotton content are required,
especially for upper garments.
7.2
Other features of the garment design, including linings and colour combinations,
should also cater for varying climatic conditions and environments, and take into
account the working conditions of all categories of staff.
7.3
Other Fabric considerations – Light-weight and breathable.
8.
COLOURS AND FIT
8.1
Each proposed Corporate Wardrobe range should consist of mix and match coordinates with a combination of plains, and may include prints that incorporate the
preferred Customer colours.
8.2
The appearance of the garment on the individual, and the comfort of fit, is an
important consideration for the Principal. The offered ranges are to consist of a
selection of garments suitable for men and women of varying sizes and body
shapes.
8.3
Include maternity wear.
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9.
LOGOS
9.1
Contractors should provide details of the method intended to be used to incorporate
the logo for each type of garment, for example embroidered, patch, transfer, and
the options for placement of logos on all garments.
9.2
Purchasers should discuss and/or nominate and confirm an appropriate approval
process including Colour, Style, Placement and Size.
9.3
Contractors can nominate any registered, ‘Generic’ other type logos available to
Purchasers for use under this arrangement.
10. LGC TRADE MARK
10.1
The Trade Mark LGC is described as “Curved Stripes Form Map, Australia, Stylised”,
and is registered as follows:
10.2
WALGA, on behalf of the NPN registered the Trade Mark under No 1171382 with IP
Australia.
10.3
This logo may be utlised by Purchasers under this arrangement at their discretion.
11. QUALITY
11.1
The quality of fabric, fit, tailoring and colour must be consistent across all orders,
and be in strict accordance with the successful Contractor/s’ final and accepted bid.
Contractors are to outline their method of ensuring the same quality of fabric,
standard of tailoring, and the exact colours for each type of garment as provided for
in the accepted bid.
11.2
The Contractor/s will be required to provide to the Customer a sealed sample of
every item in the range at the time of supply of the first order. These sealed
samples will be used as a benchmark to measure consistency of product, and will be
retained by the Customer for the term of the Agreement.
11.3
The durable wearing capabilities of the garments are major considerations for
Customers.
12. GARMENT CARE
12.1
The garments should be easy-care (but not necessary only limited to easy-care) for
example, drip dry, no-iron/permanent press, easily cleaned, colourfast, stain
resistant.
13. DISCONTINUED RANGE, PRODUCTS OR FABRICS
13.1
The Contractor must manage discontinued and/or obsolete goods:
13.2
Discontinued Range (Products); must advise customer (s) who have purchased
garments with written notification (Fax, Email or Letter acceptable).
13.3
Discontinued Fabrics; must advise customer (s) who have purchased garments
utilising the fabric with written notification (Fax, Email or Letter acceptable).
13.4
Minimum notice period; two (2) Months from date of discontinuation or obsoletion.
13.5
Written notification must include where applicable, recommendations to ensure
continuity of supply, maintenance of corporate ‘Look’, suitable range replacements
and/or an alternative strategy.
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14. ADDITIONAL GARMENT REQUIREMENTS
The following additional features are preferred for all garments:
•
•
•
•
•
•
•
Care instruction labels sewn into each garment in line with the Australia Standard;
Additional buttons supplied with each buttoned garment;
Polo shirts to be available with and without pocket (s);
Office shirts to be available with and without buttoned pockets with button overlaps;
Range of skirts to be lined and unlined, with pockets and without;
Range of dresses to be lined and unlined, with and without action pleats; and
Range of blouses to include action pleats and without.
15. ETHICAL SOURCING POLICIES
15.1
Tenderers with manufacturing responsibility, both in Australia and Overseas are
required to have in place responsible and appropriate policies, procedures and
monitoring programs in regards to the sourcing of and the manufacture of all
components of Corporate Wardrobe.
15.2
An ethical sourcing policy must include but is not limited too;
•
•
•
•
•
Safe and hygienic working conditions for all employees and those employees of Sub
Contractors;
The sourcing products and/or raw materials in a responsible manner with reference
to environmental impact and sustainability;
The manufacture of goods in a responsible manner with reference to Labour Rights
and Work place Health and Safety policies and procedures as well as have in place
regular monitoring practices;
Must not condone the use of child labour in any form; and
Ensure access to necessary personal protection equipment and safe machinery which
exceeds the standard set by local laws.
16. ORDERING
16.1
A decentralised electronic ordering system for garment sales is preferred. It is
expected that the order will be submitted electronically (Email or Fax acceptable) to
the Contractor/s, who will then deliver the garments to the nominated Customer (s).
16.2
Contractors that can provide a secure electronic ordering system incorporating an
on-line catalogue that features the following as a minimum will be considered
favourably:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
Colour photographs of the corporate wardrobe range;
Size range for each garment;
Prices;
Fabrics used;
Order form/s;
Ordering procedure;
Procedure for logo placement and approval;
Procedure for fitting garments prior to purchasing;
Procedures for returns, credits and exchanges; and
Details of how to arrange “made to measure” garments.
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It is anticipated that an order form will be completed by each ordering officer.
minimum, an order form should contain the following:
a)
b)
c)
d)
e)
f)
As a
Ordering officer’s details;
Delivery location;
Quantity and description of garments required;
Any specific requirements for Logo inclusion or placement;
Cost of garments (including GST); and
Payment method (cheque, credit card, purchase order or
payroll deduction).
16.3
The stipulation of a minimum order level for any one Local Government Authority is
not permitted through this Tender, unless it applies to customised garments for that
organisation. There are many small Local Governments who have few staff who
must be extended the opportunity to buy under the scope of this Preferred Supply
Arrangement.
16.4
It is recognised that uniform fittings will pose an ongoing logistical issue over the
term of the Agreement, particularly for organisations in remote regional areas of
Australia.
16.5
Contractors offering ‘Onsite fitting’ must be able to service to a satisfactory level
both metro and regional areas. A scheduled visit cycle and a suitable range of
garments must be available.
17. REPORTING REQUIRED BY THE PURCHASER
17.1
A Contractor’s ability to manage information is essential for this Preferred Supplier
Arrangement.
17.2
Reports will be required both on a monthly and ad hoc basis and will be required in
electronic format. The successful Contractor/s should have the facilities to capture
the below information for each Customer as a minimum:
a)
b)
c)
d)
e)
f)
g)
h)
i)
j)
k)
l)
m)
17.3
Date order received;
Date order delivered;
Delivery location;
Ordering officer’s name;
Full description of garments ordered;
Quantity of garments issued;
Payment method (e.g. purchase order, credit card, payroll
deductions etc);
Total expenditure per location;
Total expenditure per Customer;
Total expenditure of all Customers;
Details of unfulfilled orders (back orders);
Number and reasons for exchanges and returns/credits;
Quantity of each type of garment sold to date.
The above reporting requirements are highly desirable, however additional specific
reporting may be requested by each Customer and where reasonable this shall be
supplied by the Contractor.
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18. INVOICING
18.1
A consolidated electronic invoice/statement of all orders paid by payroll deduction is
to be submitted to each Customer as requested (e.g. on a monthly basis).
18.2
The invoice/statement should provide the following information at a minimum:
a)
b)
c)
d)
e)
f)
g)
h)
Date of order;
Purchase order number;
NPN Contract number;
Amount of order;
Ordering officer’s name;
Ordering officer’s employee number (where required); and
Delivery location;
Valid Tax Invoices must be supplied.
19. PAYMENT
19.1
In cases where the successful Contractor/s is/are required to submit an invoice, the
invoice will be paid by means of electronic funds transfer, not more than thirty (30)
days after delivery of the garments and is subject to the Customer receiving a
correctly completed invoice. Contractors are to advise if an early payment discount
is applicable.
20. COMPLAINT MANAGEMENT
20.1
It is preferred that the Contractor/s provide a dedicated toll-free telephone contact,
such as a customer hotline, to assist the Customer’s staff and to provide solutions to
any issues.
20.2
It is expected that staff ordering garments will raise issues directly with the
successful Contractor’s nominated Account Manager. This Account Manager should
be able to make decisions on behalf of a Contractor.
20.3
Any issues in relation to this Preferred Supplier Arrangement must be addressed
promptly and to the satisfaction of the Principal.
21. DELIVERY REQUIREMENTS
21.1
Contractors must nominate a timeframe for the initial supply of each range of
garments from the commencement of the Agreement.
21.2
Contractors must nominate a timeframe for bulk orders, individual orders, “made to
measure” orders and the timeframe for the replacement of faulty garments.
21.3
The lead time for bulk orders and “made to measure” orders should not exceed six
(15) weeks.
21.4
Individual orders; replacement of faulty garments and return of altered garments
are expected to be supplied within two (2) weeks of order receipt.
21.5
All garments should be packaged to the best commercial standards and practices
and labelled to ensure prompt and accurate delivery to the ordering officer. All
garments must be priced as free into store to the ordering location. Contractors
should provide details of their packaging and delivery procedures and the standards
that apply. It is preferred that Contractors are committed to using environmentally
friendly packaging products.
21.6
Provision of details of regional distribution centres and modes of supply to isolated
and remote Local Governments should be provided to demonstrate the Contractor’s
ability to meet the full range of supply needs.
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22. TRADE CENTRES OR BRANDED OUTLETS
22.1
Tenderers are to provide details of ‘Trade Centres or Branded Outlets’ a purchaser
utilising this contract may ‘Purchase’ or ‘Try On’ goods within their local town, city
or region.
22.2
Tenderers are to provide a definition of these ‘Trade Centres or Retail Branded
Outlets’ within the ETRF document as well as a guideline for purchasers to engage
these resources.
22.3
Contractors are to confirm whether NPN pricing will apply to all purchases made
from a Trade Centre or Branded Outlet as nominated in the Electronic Response
Transfer Form.
23. AUSTRALIAN TAX OFFICE REQUIREMENTS
23.1
The design of the Corporate Wardrobe arrangement must satisfy Australian
Taxation Office requirements for tax deductibility. The Corporate Wardrobe design
must also meet the requirements of the Approved Occupational Clothing Guidelines
(www.ausindustry.gov.au).
23.2
It is mandatory for Contractors to provide a statement on how each Corporate
Wardrobe proposal will satisfy these requirements. The Contractor/s must provide
evidence that they have registered the contracted range for each Customer with
AusIndustry in the Register of Approved Occupational Clothing.
24. PERFORMANCE MANAGEMENT
Contract management is central to the effectiveness of the arrangement and is carried out
on a continuous basis during the contract term via day to day non formal communications
as well the required formal reporting stated in the Preferred Supplier Arrangement Deed.
Value-based Criteria:
24.1
adherence to price schedule;
24.2
communication skills, including information flow to Purchasers;
24.3
ability to work with the Purchaser’s staff;
24.4
marketing and promotion of ‘Preferred Supplier Status’;
24.5
presentation skills; and
24.6
response time and suitability of RFQ or project completed.
Key Performance Indicators:
24.7
adherence to online reporting schedule;
24.8
on time payment of accounts;
24.9
promotion of the arrangement and awarded status;
24.10 proactive communication with Local Buy;
24.11 positive feedback from Purchasers;
24.12 adherence to workplace, health and safety requirements; and
24.13 adherence to any relevant standard or other accreditation practice
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Quarterly Reporting Requirements - Each State may request a report including;
• Date order received;
• Date order delivered;
• Delivery location;
• Ordering officer’s name;
• Total expenditure per location;
• Total expenditure of all Customers;
• Number and reasons for of unfulfilled orders (back orders);
• Number and reasons for exchanges and returns/credits;
• Scoping – Potential New Customers;
• Scoping – Existing Customers; and
• General Business.
Participating NPN members may require a set scheduled meeting cycle or a more informal
based meeting arrangement with appointed contractors as a means to review contractors'
performance. Feedback from Purchasers may be requested time to time for reference and
conversely contractors will be provided an opportunity to debrief the NPN members on
issues or concerns regarding the requirements of contract.
25. REPORTING ONLINE (QLD AND VIC)
25.1
Contractors are required to provide Quarterly Sales Returns (QSR) detailing Sales
made to Customers under this arrangement. These reports shall be provided using
Local Buy’s online reporting system.
25.2
For ease of doing business LB and MAV have established an understanding for the
management of ‘Online Reporting’ under this arrangement. Tenderers will be
required to report all Sales from Victoria and Queensland under this arrangement
using the Local Buy online reporting system.
NPN 2.11 (Corporate Wardrobe – Goods and Services)
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26. REPORTING ONLINE (NSW AND SA)
26.1
Contractor(s) will be required to provide reports to LGP and LGCS council customers
for assessment against agreed key performance indicators.
26.2
Reports providing performance criteria data are to be submitted to LGP and LGSC
by the 2nd week of each calendar month. Reports are to be provided initially in
Excel format.
26.3
In the case of No Orders commissioned during any given period, a nil Sales Return
must be provided.
26.4
An example of the proposed LGP reports is shown below. (Note that all data is
illustrative only).
Monthly Performance Report.
Total Value of MGBs raised under the contract arrangement during the
month (illustrative only-not actual $):
Council:
January February March
Etc
Dec
Total
Albury
$22,000
$35,000
Nil
Nil
Nil
$57,000
Armidale
Nil
$40,000
Nil
Nil
$150,000
$190,000
Ashfield
$145,000 Nil
$10,000
Nil
Nil
$155,000
Ballina
15,000
10,000
Nil
Nil
$210,000
$210,000
Balranald $5,000
$5,000
Nil
Nil
Nil
$10,000
Etc
Total
$250,000 $110,000
$240.,000 Etc
Etc
Grand total: $7,852,000
Total Value of MGBs by product type (illustrative only, not actual $):
Februar
January y
March
Etc
Dec
Total
Type:
120 Lt
$10,000 $50,000
$5000
Etc
Etc
140Lt
$10,000 $10,000
$5000
Etc
Etc
$230,00
240 Lt
0
$50,000
$200,00
Etc
Etc
240
Lt
Split
$30,000
Etc
Etc
Etc
Grand total: 7,852,000
27. CONTRACT MANAGEMENT & MARKETING (QLD, SA AND VIC)
27.1
Local Buy as the lead agency will nominate a Category Manager who will be
responsible for liaison with Contractor(s) in relation to the overall contract
management and performance of the Preferred Supplier Arrangement.
27.2
Contractor(s) will
primary point of
management and
with the MAV and
27.3
The Contractor shall ensure that the information contained on the LGCS or Local
Buy Directory or in any Buyer Guides about their company, works, goods and/ or
services is kept up-to-date at all times.
be required to nominate a senior staff member to act as the
contact with LGCS and MAV, to exercise responsibility for the
performance of the Preferred Supplier Arrangement and to liaise
LGCS Contract Manager’s.
NPN 2.11 (Corporate Wardrobe – Goods and Services)
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28. CONTRACT MANAGEMENT & MARKETING (NSW)
28.1
LGP will each nominate a separate Business Manager who will be responsible for
liaison with Contractor(s) in relation to management and performance of the
Preferred Supplier Contract.
28.2
LGP will nominate a separate Contract Manager who will be responsible for liaison
with Contractor(s) in relation to the Preferred Supplier Arrangement Deed.
28.3
Contractor(s) will be required to nominate a senior staff member to act as the
primary point of contact with LGP, to exercise responsibility for the management
and performance of the Preferred Supplier Deed and to liaise with LGP’s Business
Manager.
28.4
Contractor(s) will attend a quarterly meeting with LGP (NSW) to review the success
and effectiveness of the arrangements under the Preferred Supplier Arrangement
Deed.
29. CONTRACT MANAGEMENT & MARKETING (ALL STATES)
29.1
The Contractor may only use the LGP, LGCS MAV or LB logo in the Contractor’s
marketing strategy upon receipt of relevant entity’s written confirmation to do so.
Such use of a logo shall be solely limited to the marketing of the Contractor’s goods
and/or services as they apply to the goods and/or services of the Contract, and for
the period of the Contract.
29.2
The Contractor shall actively promote the Contract for its duration, and liaise with
LGP, LGCS MAV or LB as necessary to establish a contract marketing plan that
ensures that the Contractor’s marketing strategy is effective and consistent with the
LGP, LGCS, MAV and Local Buy’s marketing strategies.
29.3
The Contractor shall ensure that the information contained on the LGP, LGCS MAV
or LB Directory or in any Buyer Guides about their company, goods and/ or services
is kept up-to-date at all times.
29.4
The Contractor shall make immediately available to a Customer or prospective
Customer, detailed and suitable information brochures and manuals regarding the
goods and/or services under the Contract.
A Contractor will:
a) Actively utilise these tools on their company website, catalogues, brochures, project
submissions and email signatures.
30. THE ENGAGEMENT PROCESS
Contractor (s) appointed to this contract will be listed on the relevant Local Government
Association intranet and/or internet for Queensland, South Australia, Victoria and New
South Wales.
Information available will include:
• Contract Specification and Preferred Supplier Arrangement Deed;
• Goods and/or Services offered by each Supplier (Category Matrix);
• Supplier Brand / Profile (With links to website) and Pricing Schedule; and
• General Contact information (Commencement Date, Contract Expiry etc)
30.1
Goods: It is likely that a Purchaser will discuss their requirements directly with a
Contractor and issue a single Request for Quotation (RFQ) under this arrangement;
however they may also obtain quotations from multiple Contractors prior to raising
a Purchase Order.
NPN 2.11 (Corporate Wardrobe – Goods and Services)
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30.2
It is expected that Purchasers will reference the NPN Contract Number when placing
an ordering, raising an invoice or when establishing an account. If a Purchaser
does not reference NPN Contract number at any point, the Contractor is required to
clarify with the Purchaser if the purchase is pursuant to the NPN arrangement.
30.3
Purchasers may also purchase items directly without first obtaining Quotations by
selecting items from a Contractor’s published price list. The Purchaser must
reference the NPN contract number when doing so.
31. THE ISSUING OF AN ‘REQUEST FOR QUOTATION’ (RFQ)
31.1
A Purchaser may submit a request for a quotation (RFQ) with further information
and specifications of their Corporate Wardrobe requirements in writing (Fax and
Email acceptable).
31.2
Where the Contractor wishes to submit a quotation, the Contractor must respond to
a Purchaser RFQ in writing within the period set out in the Customer’s RFQ or as
otherwise agreed with the relevant Customer.
If the Contractor is unable to meet any of the requirements of a specific RFQ, this
should clearly be noted in the Contractor’s RFQ response.
Any free services which the Contractor nominates to supply, additional to those
specified and which the Contractor accepts shall be carried out in accordance
with the details supplied by the Contractor at a time and place approved by the
Customer.
Purchasers are not bound to accept a RFQ response received from the Contractor
or any other supplier even where such RFQ is the lowest in price.
If the Contractor’s RFQ response is selected following the RFQ process, the
Customer shall accept the Contractor’s offer by issuing an Order.
31.3
A Purchaser may submit a request for a quotation (RFQ) with further information
and specifications of their Corporate Wardrobe requirements by using the Vendor
Panel system.
Local Buy and Local Government Procurement have established a web-based
Request for Quotation system which will enable Contractors to quote on a
project by project basis.
Vendor Panel does not require the Contractor to have any special software to use
the system and quotations through the system.
All Quotations submitted by a Contractor are private and confidential and will not
be disclosed to other Contractors or Purchasers.
If a Purchaser issues a Request for Quotation through Vendor Panel, the
Contractor is required to respond using the Vendor Panel system.
31.4
Purchasers and Contractors can read further information on the Vendor Panel
system by viewing Part 9 - General Introduction and User Guide.
32. SPECIFIC REQUIREMENTS - SCHEDULE 5 REGIONAL REPRESENTATION
Tenderers must:
• Complete All Columns as required; and
• Complete a worksheet for all four (4) states as provided.
• Contractors may tender to supply all states or a single or combination of states and
any or a combination of regions of a state disadvantaged during the evaluation and
award process.
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33. SPECIFIC REQUIREMENTS - SCHEDULE 7 SUB CONTRACTOR
It is a requirement of this contract that if a Tenderer nominates a Sub Contractor within
‘Schedule 7 Register of Sub Contractors’ any manufacturing or services (Placement of logos
etc) in Australia.
Local Buy as the NPN lead agency reserves the right to check and validate all Sub
Contractors registered under the arrangement. If a Sub Contractor is found to be not
acceptable, Local Buy will communicate accordingly to the Tenderer and where necessary
give the opportunity to submit an alternative Sub Contractor or review their tender
response.
34. SPECIFIC REQUIREMENTS - SCHEDULE 4 PRICING SCHEDULE
The NPN seeks to secure a competitive rate across all participating states. Pricing
submitted as the ‘NPN Contract Price’ for the supply to all states (National) with freight
excluded. The cost of a “Logo” is considered excluded from the NPN Contract Price unless
otherwise specified by the Contractor.
Tenderers are to set out their Goods as per the
pricing elements within the pricing schedule without limitations.
Price lists will be made available on each states Services directory accessible only by
purchasers holding access applicable state website.
•
•
Local Buy - The site has limited access to Purchasers with a ‘qld.gov.au’ email
address only.
LGP - The site has limited access to Purchasers with an ‘nsw.gov.au’ email address
only.
Price lists will be made available:
• MAV – Councils receive a price list as part of the MAV Contract Report issued to
councils participating under the arrangement.
• LGCS – Councils contact the nominated Contract Manager to obtain price lists.
Worksheet:
• Corporate Wardrobe
Tenderers must:
• Complete All Columns as required;
• Select only responses from the ‘Drop Down’ lists where provided;
• Not change the format of the worksheets in any manner; and
• Provide Fixed Pricing.
35. TRANSITION TO CONTRACT
35.1
Please note South Australia and New South Wales will not transition to this
arrangement until the 1st of July, 2011.
35.2
Some councils may have existing purchase commitments that must be fulfilled prior
to entering into any new supply arrangement under the Preferred Supplier
Arrangement Deed.
35.3
Where the Preferred Supplier Arrangement Deed offers improved pricing or supply
arrangements and a council customer have an outstanding purchase commitment
with the Contractor, the Contractor will supply the outstanding commitment on the
basis of the new arrangement under the Preferred Supplier Arrangement Deed.
NPN 2.11 (Corporate Wardrobe – Goods and Services)
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36. INSURANCE COMPLIANCE (MYCONTRACTOR)
36.1
The
Contractor
shall
register
on
the
MyContractor
website
(www.mycontractor.com.au) in order to regularly lodge evidence of the currency of
its insurances. There is no charge to the Contractor to access this service.
36.2
The Contractor shall make certain that when a MyContractor reminder is received,
the information contained on the MyContractor website is updated.
37. USE OF CALL OFF CONDITIONS
(PURCHASER)
37.1
When Purchasers engage a Contractor from this Preferred Supplier Arrangement
they are doing so under the terms and conditions stipulated in the NPN Preferred
Supplier Arrangement Deed as well as the Call-Off Conditions.
37.2
The NPN Preferred Supplier Arrangement Deed provides for the relationship
between NPN participating member and a Contractor appointed to the Register,
whereas the Call-Off Conditions provide for the relationship between the Purchaser
and the Contractor.
38. ADDITIONAL INFORMATION
Notwithstanding the above, nothing in this Contract is to be taken or construed as creating
the formal relationship of a legal partnership or a joint venture between the Contractor and
any of the participating NPN member or Purchaser.
39. AUSTRALIAN STANDARDS OF CONTRACT
Following is a list of Standard (s) of Contract relevant to Corporate Wardrobe. This list is
not exhaustive and does not limit the Standard (s) which may be employed by the
Purchaser.
In particular, attention should be drawn to:
•
•
•
AS/NZS 2392:1999 (as amended) Textiles – Labelling of clothing.
AS/NZS 1957: 1998 (as amended) Care labelling.
AS/NZS 2621:1998 (as amended) Textiles – Guide to the selection of correct care
labelling instructions.
40. DEFINITIONS
In the Contract, except where the context otherwise requires:
‘Act’ means an Act passed by the Commonwealth Parliament or the Queensland
Parliament and includes subordinate legislation under an Act.
‘Associate Bodies’ means those entities that may access a Local Buy contract. This
includes bodies such as Aboriginal and Islander Community Councils, Local Buy, the
Local Government Association of Queensland Inc. (LGAQ), Libraries and local
government related entities or structures not constituted under the Local Government
Act 2009 (Qld).
‘Clause’ means a clause of the Contract.
‘Contract’ means the document which constitutes or evidences or, as the case may
be, all the documents which constitute or evidence the final and concluded
agreement between Local Buy and the Contractor.
‘Contract Commencement Date’ means 12th of June, 2011 (QLD).
‘Contract Expiry Date’ means 30th of June, 2013.
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‘Contract Management Fee’ means a quarterly rebate paid in accordance with
Schedule A – Item 6 - Management Fee.
‘Contract Material’ means New Contract Material and Existing Contract Material.
‘Contract Price’ means:
(a)
where payment is to be made on a lump sum basis, the sum which is
stated in the Contract to be payable to the Contractor for the supply of
the Goods and Services by the Contractor and the performance of the
obligations of the Contractor under the Contract; and
(b)
where payment is to be made on a schedule of rates basis, the sum
ascertained by calculating the product of the rates and the
corresponding quantities set out in the schedule of rates and adding to
the sum thereof the total of any lump sums, provisional sums,
contingency sums or other sums included in the schedule of rates; and
(c)
where payment is to be made on a lump sum and a schedule of rates
basis, the aggregate of the sums referred to in paragraphs (a) and (b),
but excluding any additions or deductions, which may be required to
be made pursuant to the Contract.
‘Contractor’ means the party whose Offer to supply the Goods and Services is
accepted by Local Buy (by Letter of Acceptance).
‘Council’ means any Queensland, South Australia and Northern Territory local
government.
‘Non Stocked’ range can be defined as stock which needs to be ordered and
manufactured prior to delivery.
‘Existing Contract Material’ means any material that exists at the commencement
of the Contract and which is provided in connection with the Contract.
‘Extension Period’ means the period from the Contract Expiry Date to the date 12
months after the Contract Expiry Date. This agreement can be extended for up to
two twelve month periods by NPN Lead Agency at its sole discretion with agreement
of the other participating NPN members.
‘Preferred Supplier
Arrangement Deed.
Arrangement
Deed’
means
the
Preferred
Supplier
‘Goods and Services” means the goods, services, tasks, work and requisites the
subject of the Contract which are more particularly described in the Specification
including all variations to the goods, services, tasks, work and requisites provided for
by the Contract or such of them as shall be described in an Order.
‘GST’ means the goods and services tax under the GST Act.
‘GST Act’ means A New Tax System (Goods and Services Tax) Act 1999 and includes
other GST related legislation.
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‘LGA Arrangement’ means an arrangement
(a)
Entered into by –
i. The Local Government Association;
ii. A company registered under the Corporations Act if the
Association is its only shareholder;
(b)
That would be a purchasing arrangement if entered into by a local
government; and
(c)
For which the procedure set out in section 14.1 of the Local
Government Act Qld (2009) has been followed by the local
government
‘LGAQ’ means the Local Government Association of Queensland Limited.
‘LGCS’ means LGCS Pty Ltd (t/a Local Government Corporate Services) ACN 094 805
964
‘LGP’ means Local Government Procurement Pty Ltd ACN 117 201 046, in its
capacity as agent for the Local Government Procurement Partnership
‘Local Buy’ means Local Buy Pty Ltd the wholly owned company established by the
Local Government Association of Queensland Inc.
‘Local Government’ means a local government for a local government area
declared by regulation under the Queensland Local Government Act 2009 and South
Australian Local Government Act 1999.
‘MyContractor’ means a web based system in which Contractors are required to
upload their mandatory compliance documentations. (e.g. insurance certificates).
‘NPN Contract Price List’ means a listing of unique prices for the range of goods
and services offered by a Contractor to the NPN participating members under this
contract.
‘New Contract Material’ means any material provided in connection with the
Contract that is created, written or otherwise brought into existence by or on behalf
of the Contractor in the course of performing the Contract.
New South Wales Local Government’ means any council within the meaning of
the Local Government Act 1993 (NSW) or any Aboriginal Land Council within the
meaning of the Aboriginal Land Rights Act 1983 (NSW); any Voluntary Regional
Organisation of Councils as referred to in the Local Government Act 1993 (NSW); the
Local Government Association of New South Wales; the Shires Association of New
South Wales; Specific non-profit organisations and/or charities, where approved by
Local Government Procurement Pty.
‘NPN’ means National Procurement Network an alliance of the procurement divisions
of each state and territory local government association including MAV, WALGA,
LGAQ, LGAT, LGSA, LGANT and the LGASA.
‘Off the Shelf’ range can be defined as existing stock that is readily obtainable.
‘Offer’ means the written offer (in the form of the Tender Response) submitted to
the NPN by the Contractor to provide the Goods and Services and, if applicable, as
amended in writing by any post offer negotiations.
‘Order’ means an order for Goods and Services placed by a Purchaser with the
Contractor under the terms of the Contract and ‘Ordered’ has a corresponding
meaning.
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‘Other Government Entity’ means a department, division, branch, statutory body,
statutory corporation, company, instrumentality, agency, authority or entity of the
Queensland State Government, and/or one or more Queensland Local Governments.
Participating NPN Members means Local Buy Pty Ltd ACN 090 446 487
(Queensland), LGCS (t/a Local Government Corporate Services Pty Ltd) ACN 094 805
964 (South Australia) and Local Government Procurement Pty Ltd ACN 117 201 046
(New South Wales) and Municipal Association of Victoria, ABN 24 326 561 315.
‘Purchaser’ ‘Purchaser’ means the entity, which has actually contracted to purchase
goods or services from the Contractor in a particular transaction (being a Queensland
Local Government, an Associate Body, a Port Authority, Other Government Entity,
Queensland Regional Natural Resource Management Groups Collective, South
Australian Local Government, New South Wales Government, Victorian Local
Government and Northern Territory Local Government.
Preferred Supplier Arrangement’ means an arrangement to which a local
government is a party with a supplier for the supply of goods or services under
agreed pricing conditions for a stated period.
‘Queensland Local Government’ means a local government (including a joint local
government) constituted under the Local Government Act 2009 (Qld)], under the City
of Brisbane Act 1924 or an Aboriginal and Islander Community Council, which elects
to participate in the purchase of goods and/or services under Contracts or
agreements set up by Local Buy.
‘Quotation” means a Formal statement of promise (submitted usually in response to
a request for quotation) by potential supplier to supply the goods or services required
by a Purchaser, at specified prices, and within a specified period. It may also contain
terms of sale and payment, and warranties. Acceptance of quotation by the buyer
constitutes an agreement binding on both parties.
‘Request for Quotation’ means Document used in soliciting price and delivery
quotations that meet minimum quality specifications for a specific quantity of specific
goods and/or services. RFQ are usually not advertised publicly, and are used
commonly for;
standard, off-the-shelf items,
items built to known specifications,
items built to individual specification, or
Goods and/or services required in for an individual project.
‘Request for Tender’ means the Request for Tender given to prospective Tenderers
inviting offers to tender for the supply of the Goods and Services of which these
Preferred Supplier Arrangement Deed form part.
‘Registered’ means registered under the provisions of any Act or law, whether of
the State or elsewhere, relating to the registration of motor vehicles.
South Australian Local Government’ means a council or subsidiary constituted
under the South Australian Local Government Act 1999 as amended and other
organizations as listed; Adelaide Hills Region Waste Management Authority, Adelaide
Parklands Authority, Centennial Park Cemetery Authority, Central Local Government
Region, East Waste Management Authority, Eastern Health Authority Inc., Eyre
Peninsula Local Government Association, Fleurieu Regional Waste Authority, Flinders
Mobile Library, Gawler Flood Plains Management Authority, Highbury Landfill
Authority, Local Government Risk Services, Local Government Systems Inc, Local
Government Association of SA, Local Government Corporate Services, Local
Government Finance Authority, Local Government Manager Australia SA Division Inc.,
Local Super Pty Ltd, Murray & Mallee Local Government Association, Murray Mallee
Community Transport Scheme, North Adelaide Waste Management Authority,
NPN 2.11 (Corporate Wardrobe – Goods and Services)
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Nuriootpa Centennial Park Authority, Outback Areas Community Development Trust,
Provincial Cities SA, Queen Elizabeth Park Trust, Rundle Mall Authority, South East
Local Government Association, Southern & Hills Local Government Association,
Southern Eyre Peninsula Subsidiary, Southern Region Waste Resource Authority,
Waste Care, Waterproofing Northern Adelaide Regional Subsidiary, West Beach Trust,
Western Region Waste Management Authority.
‘Northern Territory Local Government’ means a council or subsidiary constituted
under the Northern Territory Local Government Act as amended and other
organizations as listed; Alice Springs Town Council, Barkly Shire Council, Belyuen
Community Government Council, Central Desert Shire Council, Palmerstone City
Council, Coomalie Shire Council, Darwin City Council, East Arnhem Shire Council,
Katherine Town Council, Litchfield Council, MacDonnell Shire Council, Roper Gulf
Shire Council, Tiwi Islands Shire Council, Victoria Daly Shire Council, Wagait Shire
Council, West Arnhem Shire Council and associated members including Nhulunbuy
Corporation Ltd Gove and Mabunji Aboriginal Resource Assoc Ltd.
‘Special Conditions of Contract’ means the Special Conditions of Contract
included in the Request for Tender.
'Specification' includes any specification included in the Request for Tender.
‘Vendor Panel’ means a web based system in which Purchasers (including Councils
and other entities) will issue Request for Quotations to Contractors pre-qualified
under this Contract.
‘Victorian Local Government’ means a council or subsidiary constituted under the
Local Government Act as amended and other organizations as listed; Alpine Shire
Council, Bass Coast Shire Council, Baw Baw Shire Council, Casey City Council, Colac
Otway Shire Council, East Gippsland Shire Council, Frankston City Council, Greater
Shepparton City Council, Hepburn Shire Council, Hobsons Bay City Council, Macedon
Ranges Shire Council, Maribyrnong City Council, Moreland City Council, Towong Shire
Council, Warrnambool City Council, Whitehorse City Council, Wyndham City Council.
Schedule F
Regional Representation
Refer Regional Representation Spreadsheet (Part 3 Schedule 5 of the ETRF) as
submitted at time of tender submission. Tender close: 3rd of May, 2011.
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Schedule G
Special Conditions
No applicable special conditions
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