Agreement for Supply of Goods and Services - Standard Terms & Conditions

Transcription

1 Agreement for Supply of Goods and Services - Standard Terms & Conditions 1 Supplier s Acknowledgement The Supplier acknowledges and agrees that an Order made under this Agreement does not impose an obligation on the Bank to acquire the Supplier's goods other than the Goods specified in the Order. 2 Definitions and Interpretation In this Agreement: Agreement means: this document setting out the Bank s standard terms and conditions for the purchase of goods and/or services; and each Order; and, where there is such an agreement in place, the Subsisting Principal Agreement. Auditor has the meaning given to it in clause 15. Bank means Commonwealth Bank of Australia (ABN ), and each of its Related Bodies Corporate. Due Date means the date that the Goods and/or Services are required for delivery by the Bank, as stated in an Order. Goods means the Goods supplied by the Supplier to the Bank under the Agreement, as specified in an Order, from time to time. GST has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth). Law means any: law of Australia, including Commonwealth, State, Territory or local government legislation, or any regulations, by-laws, declarations, ministerial directions and other subordinate legislation; common law; government agency requirement or authorisation (including conditions in respect of any authorisation); and code of conduct, writ, order, injunction or judgment. Loss means loss, damage, liability, charge, expense, outgoing or cost of any nature or kind, whether of a direct, indirect or consequential nature (including any liability, damage, cost and other outgoing, any diminution in value of, sales, turnover, reputation (or damage to it), production, anticipated savings, goodwill, business opportunities, customers and loss in connection with any other contract). Order means an offer to purchase Goods and/or Services constituted by the official written purchase order of the Bank signed by a person authorised by the Bank for that purpose and issued by the Bank to the Supplier, by electronic means, from time to time. Order Number means the identifying number shown on an Order placed by the Bank with respect to the supply of Goods and/or Services. Related Body Corporate has the meaning given to that term in section 50 of the Corporations Act 2001 (Cth). Required Insurances has the meaning given to it in clause 11. Safety Legislation means all applicable Work Health and Safety, Environment Protection, Dangerous Goods and Electricity Safety legislation and regulations made under them, together 1

2 with any directions on safety or notices issued by any relevant authority or any Code of Practice or Compliance Code appropriate or relevant to the supply of the Services. Safety Requirements means any and all written directions, instructions, requests or requirements relevant to, associated with or necessary for compliance by the Supplier or the Bank with Safety Legislation and including any such matters of which the Supplier has been informed by the Bank orally or in writing. Services means the Services supplied by the Supplier to the Bank under the Agreement, as specified in an Order, from time to time. Subsisting Principal Agreement means any current Master Goods and Services Agreement (howsoever called) which was made between the parties before the date of this document and continues in full force and effect at the date of this document. Supplier means the person, business, partnership or company who agrees to supply Goods and/or Services to the Bank. Where the Supplier comprises more than one entity, this Agreement will bind each entity comprising the Supplier collectively. 3 Terms Subject to paragraphs,, and this Agreement will constitute the entire understanding between the parties for the purchase of Goods by or the supply of Services to the Bank. This Agreement may only be varied by written agreement by the Bank and the Supplier. In the event that there is any inconsistency between the documents comprising this Agreement they must be read and interpreted in the following descending order of priority: the Subsisting Principal Agreement, if any; this document; and a relevant Order. For the avoidance of doubt, the parties acknowledge that: 4 Price and GST the terms of any such Subsisting Principal Agreement continue to apply despite the execution of this document; to the extent that there is any inconsistency between the terms of a Subsisting Principal Agreement and this document, the terms of the Subsisting Principal Agreement prevail; and nothing contained in this document is intended to diminish or derogate from the Bank s rights under a Subsisting Principal Agreement. Unless otherwise stated in the Order: the price specified in the Order is exclusive of GST but includes all other taxes, duties, delivery costs and all installation costs; and 5 Delivery and Acceptance payment will be made 30 days from receipt by the Bank of correct invoices, being either paper based or e-invoice. The Goods and/or Services will be delivered to or carried out at the delivery address by the Due Date or a Due Date as extended under clause 6. Goods will be deemed finally accepted by the Bank on the date they are installed ready for use, inspected and tested that they are fit for purpose to the Bank s satisfaction; 2

3 6 Delays Services will be deemed finally accepted by the Bank on the date they are completed to the Bank s satisfaction Whether or not the Bank has paid for inspected, tested or accepted the Goods and/or Services, the Bank reserves the right to reject or revoke acceptance of Goods and/or Services that do not conform with the Order or the terms of the Agreement or to avail itself of any other legal remedies. The Supplier will notify the Bank in writing of any anticipated delays promptly upon discovery of the delay. If for any reason beyond the Supplier's reasonable control, the Supplier is delayed or impeded in the supply or provision of the Goods and/or Services at the delivery address by the Due Date, the Supplier will notify the Bank. The Bank will within a reasonable time of receipt of such notice grant the Supplier either prospectively or retrospectively such written extension of the Due Date as the Bank may consider reasonable in the circumstances, but the Supplier will not be entitled to claim any increase in the total amount payable. If agreed between the parties, the Bank may cancel the Order in the event that, in its opinion, the Supplier may be unable to perform by the Due Date. 7 Title and Risk of Loss 8 Early Delivery Title to the Goods passes to the Bank when the Goods are delivered to the specified Bank site. The risk in the Goods passes to the Bank when the Goods are accepted by the Bank. The Bank may, before the Due Date, reasonably request that the Supplier complete performance on or before the Due Date and the Supplier will use its best endeavours to comply with any such request but will not be in breach of this Agreement if unable to comply. 9 Quality Standards The Supplier is responsible for all inspection testing referred to in the Order. The Supplier will comply with all legal requirements and industry practices relevant to the manufacture and supply of the Goods and/or Services. During the manufacturing process, at the time of shipment and a reasonable time after arrival at the delivery address, the Bank may send inspectors during working hours to any address where the Goods are located (including any plant(s) of the Supplier) and the Supplier will permit such inspectors to observe work on and test the Goods. If the Bank notifies the Supplier that it is of the reasonable opinion that the Supplier has not met or will not meet the standards of quality required in this Agreement, then the Supplier will provide assurances to the Bank that it will be able to meet those standards. 10 Warranties The Supplier warrants that: the Goods are free from liens, encumbrances and defects in design, material, workmanship and title; the Goods and/or Services will conform in all respects to the terms of the Order; and the Goods will comply to the applicable drawings and specifications issued for manufacture and (if no quality is specified) will be new and of best quality. Without prejudice to any other rights the Bank may have at law if, in relation to Goods, within the manufacturers standard warranty period and, in relation to Services within 12 months from the date of delivery, it appears that the Goods or Services or any part of the Goods or Services do not conform with these warranties or the Order, the Bank 3

4 may notify the Supplier within a reasonable time after discovery whereupon the Supplier must, at the Supplier's expense, promptly correct such non-conformity to the satisfaction of the Bank. If the Supplier fails to correct the non-conformity referred to in paragraph, the Bank may give it further notice to rectify the non-conformity (if it is capable of rectification). If the Supplier does not rectify the non-conformity within 5 business days of notice or if the non-conformity is not capable of rectification, then the Bank may: revoke its acceptance of the Goods and/or Services; substitute other goods or services; and/or correct or carry out the correction work which the Supplier has failed to carry out by the most expeditious means available. (f) The cost of correction or carrying out of work by the Bank will be borne by the Supplier. Goods and/or Services repaired, corrected or replaced under this Agreement are also subject to this warranty from the date of repair, correction or replacement. Without limitation, the Supplier's liability under this clause 10 extends to damages, losses or claims suffered by the Bank as a result of any breach of the warranties set out in paragraph. 11 Indemnity and Insurance The Supplier is liable for, and will indemnify the Bank for any losses, expenses, liabilities, costs, claims and actions incurred by the Bank in connection with the negligence, omission or default of the Supplier in the course of the supply of the Goods and/or Services. The Supplier must effect and maintain at its cost the insurances listed in paragraph (Required Insurances). The Supplier must pay any excess / deductible under the Required Insurances. The Supplier must not do or allow anything which would prejudice any of the Required Insurances, or cause them to be terminated. The Required Insurances include: (iv) 12 Security Requirements Public and Products Liability insurance for not less than $20,000,000 in respect of any single occurrence, and in the annual aggregate in respect of Products Liability. Workers' Compensation insurance, Work Care or equivalent insurance in accordance with legislation applicable to the state or territory in which the Services are to be performed or Goods to be supplied and in which the Supplier employs persons together with unlimited cover for common law liability where permissible by law. Professional Indemnity insurance for an amount not less than $10,000,000 in for any one loss and in the aggregate each policy year, for any civil liability arising out of the Supplier s professional services or activities. Such insurance is to be maintained by the Supplier for a period of 6 years after termination of this Agreement. Material Damage Insurance to cover physical loss, destruction or damage to the property of the Bank relevant to this Agreement under the Supplier's care custody and control or where the Supplier has accepted the risk of such loss or damage. Such property must be insured for its replacement cost. 4

5 Without limiting the Supplier s obligations arising otherwise out of or in respect of this Agreement, the Supplier must use its reasonable endeavours to comply with the Bank s reasonable security requirements as advised from time to time. 13 Bank Policies Without limiting the Supplier s obligations arising otherwise out of or in respect of this Agreement, the Supplier must use its reasonable endeavours to comply with the Bank s applicable policies as advised from time to time. 14 No Bank Endorsement Without limiting the Supplier s obligations arising out of this Agreement in respect of confidentiality of the Bank s information, or privacy of personal information, the Supplier must not, and must procure that the Supplier s Personnel and Related Bodies Corporate do not, at any time disclose to any person that the Bank or its Personnel endorse or use the services of the Supplier or its Related Bodies Corporate except with the Bank s prior written approval which may be granted or refused, in whole or in part, in the Bank s sole discretion. 15 Right to Audit An auditor appointed by the Bank, any authorised employee of the Bank or the Bank's internal auditor will be entitled, at reasonable times during normal business hours of the Supplier and upon reasonable notice, to inspect and take copies of any records and documents of the Supplier, its agents or subcontractors relating to the performance of the Supplier's obligations under this Agreement. The Supplier will cooperate (and will ensure that its agents and subcontractors cooperate) with the Auditor in such performance of its duties and will supply access to the relevant records and documents and give assistance and explanations as, in the Auditor's opinions, are necessary. Notwithstanding any other provision of this Agreement, the respective rights and obligations arising under this clause will continue for a period of 6 months following any termination of this Agreement. 16 AML/CTF Personnel obligations The Bank s audit right under clause 15 includes the right for the Bank to audit the Supplier, its agents or subcontractors to ensure that they: have no contact with the Bank s customers in performing this Agreement; do not have access or the ability to modify or update the Bank s customer s information; do not approve financial transactions involving the Bank; are not involved in relationship management, in relation to the Bank, for private banking or high net worth customers of the Bank; do not deal with financial transactions involving the Bank; (f) (g) (h) do not have the ability to manipulate financial transactions involving the Bank; cannot manipulate systems involving or containing the Bank s customer information or any type of financials; and do not have the ability to set or materially circumvent money laundering or terrorism financing controls within the Bank. 17 Work Health & Safety The Supplier must comply with, and ensure that all Supplier Personnel and subcontractors engaged in the provision of the Services comply with, all applicable Safety Legislation and Safety Requirements at their own cost. 5

6 The Supplier must cooperate with and do all things necessary to assist, and refrain from doing anything that may impede, the Bank Group Members or their Personnel in discharging their obligations under the relevant Safety Legislation. The Supplier must perform the Services in a manner that does not cause any Bank Group Member to breach its obligations under the relevant Safety Legislation. The Supplier must, upon reasonable request by or on behalf of the Bank, demonstrate compliance with such requirements including providing evidence of measures taken to achieve such compliance. Any breach by the Supplier of this clause 17 which exposes Personnel or other people at the Bank's premises to risk to their health and safety will be considered a material breach by the Supplier of its obligations under this Agreement which is not capable of remedy, and will entitle the Bank to terminate the provision of the affected Services and receive a pro rata refund of any pre-paid fees for the affected Services following the date of termination. 18 Intellectual Property On creation of any Goods, Services or other work product produced by the Supplier for the Bank in connection with the performance of the Supplier s obligations under the Agreement (regardless of whether those Goods, Services or work products have been completed), the Supplier: absolutely and unconditionally assigns; and must procure that each Supplier Personnel absolutely and unconditionally assigns, to the Bank or its nominee all Intellectual Property Rights in such Goods, Services and/or other work products without the need for further assurance, as an assignment of future property under section 197 of the Copyright Act 1968 (Cth) and in equity. The Supplier represents and warrants that: it has the right to assign the Intellectual Property Rights assigned to the Bank under paragraph ; and neither the provision, nor the taking of the benefit of, nor the use, modification, adaptation or other exploitation of the relevant Goods or Services by the Bank, will infringe the Intellectual Property Rights or Moral Rights of any person or third party. If an IPR Claim is made against the Bank, without limitation, the Bank requires the Supplier to do any of the following at the Supplier s expense: procure for the Bank the rights necessary for the Bank to purchase and use the relevant Goods or Services; substitute substantially identical or similar, but non-infringing, Goods or Services for the infringing Goods or Services, if that is practicable in the circumstances; modify the infringing Goods or Services so that they become substantially identical or similar to the infringing Goods or Services without infringing the Intellectual Property Rights, if that is practicable in the circumstances; (iv) remove infringing Goods and refund the purchase price and relevant transportation and installation costs to the Bank; and/or (v) take such other steps the Bank may consider appropriate in the circumstances. For the purposes of this clause 18: 6

7 Intellectual Property Rights means all industrial and intellectual property rights throughout the world and includes rights in respect of copyright, patents, trade marks, designs, trade secrets, know-how, confidential information and circuit layouts and any application or right to apply for registration of any such rights; IPR Claim means any claim, action or proceeding alleging that the use, modification, adaptation or any other exploitation of the Goods, Services or any work product infringes the Intellectual Property Rights or Moral Rights of any person and includes any claim, action, proceeding, damage, loss, liability, cost, charge, expense or outgoing, of whatever nature, suffered or incurred by the Bank arising out of or in connection with such a claim; Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth); and Supplier Personnel means, in relation to the Supplier, any employee, secondee, agent, principal, contractor and subcontractor (including any subcontractor involved in the supply of the Goods or Services regardless of whether they are engaged directly by the Supplier or by one of the Supplier's subcontractors) who is an individual and includes any person who is a prospective employee, secondee, agent, principal, contractor or subcontractor. 19 Confidentiality and Privacy Confidentiality All technical and other proprietary information furnished by either party under this Agreement, or which results from the joint efforts of the party's personnel will be deemed to have been furnished in confidence for the sole purpose of the Order. The parties undertake not to use any such information for any purpose not connected with the Order. All information supplied by the Bank to the Supplier for the purpose of providing the Goods and/or Service will not be disclosed to any other party, other than as required by law. Return of Confidential Information Each party must on request from the other party: return to the other party; destroy and certify in writing to the other party the destruction of; or destroy and permit an employee of the other party to witness the destruction of, the other party s confidential information in the party s possession or control other than one copy of any notes and other records that the party is required by law to retain. Privacy Each party must comply with any obligations it may have under relevant laws relating to privacy and the collection, processing, storage and use of Personal Information including, without limitation, the Privacy Act 1988 (Cth) in carrying out its obligations under this Agreement. The obligations under this clause include the Supplier ensuring that it has appropriate organisational measures in relation to security of any Personal Information. 20 SpeakUP (whistleblower) service The Supplier acknowledges that the Bank provides a service that permits the Supplier to notify the Bank about ethical, conflict of interest, or other issues related to procurement that cannot be resolved through normal business channels. The service is also available for the Supplier to report concerns that may be seen during interactions with the Bank. To make a report, the Supplier should contact the Bank Group s SpeakUP service at 7

8 21 Compliance or 1800 SPEAKUP ( ), which is operated by a third party. There are options available for reporting via the SpeakUP service, including identifying yourself, remaining anonymous, or as a whistleblower under the Group Whistleblower Policy. Information relating to the Group Whistleblower Policy can be found on the Bank s website. The Supplier warrants that the Goods and/or Services will comply with all applicable Laws. 22 Assignment or Subcontracting Neither party will assign or subcontract its right under this Agreement without the prior written consent of the other party. 23 Bank s Right to Cancel Orders 24 Termination Despite any other provision of the Agreement, the Bank has the right to cancel further performance of the whole or any severable part of an Order at any time by written notice to the Supplier. The Supplier may apply to the Bank for the recovery of any costs actually incurred by the Supplier as a result of a cancellation by the Bank under paragraph, provided that the Supplier submits written evidence to substantiate any such costs claimed. Breach of a material term If the Supplier breaches a material term of this Agreement then the Bank may give it notice specifying the breach and requiring the breach to be rectified (if it is capable of rectification) within 5 business days of receipt of the notice. If the Supplier does not rectify the breach within 5 business days or if the breach is not capable of rectification, then the Bank may terminate this Agreement at any time by giving at least 14 calendar days notice of termination. Insolvency Event The Bank may terminate this Agreement immediately upon notice to the Supplier if a receiver, receiver and manager, administrator or liquidator is appointed, or if the Supplier makes any composition or arrangement with its creditors, or if it becomes insolvent. Change in control The Bank may terminate this Agreement immediately by notice to the Supplier, if there is a Change in Control of the Supplier, a Related Body Corporate of the Supplier, or a Third Party to which the Supplier sub contracts the supply of Services, which, in the Bank's reasonable opinion, is likely to affect the supply of Services under this Agreement or the business, operations or reputation of the Bank. Termination for convenience Despite any other provision in this Agreement, the Bank may at its discretion, terminate this Agreement at any time in part or in whole without cause and without any obligation to pay compensation by giving the Supplier 30 calendar days prior written notice. 25 Anti-corruption, ethical procurement and diversity Anti-corruption and ethical procurement The Supplier warrants and represents that the Supplier will implement procedures for it and its Personnel engaged in the provision of the Services to comply with any relevant 8

9 anti-bribery and corruption laws and will at all times, adopt, and ensure that its Personnel adopt, the highest ethical and professional standards to: Diversity procure Goods, materials and equipment for the purpose of providing the Services; and carry out the Services. Each party, in all of its activities under or in connection with this Agreement, will respect the diversity of the communities in which it operates. Each party must not, under or in connection with this Agreement, make any decision having regard to, or treat any person less favourably than any other person by reason of: (A) (B) Damage to brand any prohibited ground of discrimination under applicable law; or without limiting paragraph (A), the gender, sexual orientation, gender identity, disability, race or ethnicity of any person. Each party agrees and acknowledges that a failure to comply with this clause may result in damage to the other party s brand or reputation. 26 Supplier Code of Conduct The Supplier agrees to comply with the Bank s Supplier Code of Conduct at 27 General Waivers Waiver of any right, power, authority, discretion or remedy arising from any breach of this Agreement must be in writing and signed by the party granting the waiver. Governing Law This Agreement is governed by the law of the State of New South Wales and the parties irrevocably submit to the non-exclusive jurisdiction of its courts. Notices All notices or other communications under this Agreement will be hand delivered or sent by prepaid post or electronically. A notice will be deemed given in the case of prepaid post, on receipt by the addressee; in the case of hand delivery or registered mail, on acknowledgment of receipt by an officer or authorised employee, agent or representative or the receiving party; and in the case of electronic means, on receipt by the addressee. Parties A reference to a party to this Agreement includes that party's successors and permitted assigns. Survival The rights, obligations and indemnities in clauses 10 (Warranties), 11 (Indemnity and Insurance), 18 (Intellectual Property), 19 (Confidentiality and Privacy) and 24 (Termination) survive the termination or expiry of this Agreement. Any clause which contemplates that a party has any rights or obligations after the termination or expiry of this Agreement also survives termination or expiry. 9