Part 5 Default Purchasers Conditions of Contract for Environmental Consultancy Services BUS 225-1211 2012 Local Buy Pty Ltd. All rights reserved.
Environmental Consultancy Services BUS 225-1211 Purchasers Conditions of Contract (Default Purchaser Conditions) TABLE OF CONTENTS 1. CONSTRUCTION OF PURCHASER AGREEMENT... 1 2. DEFINITIONS... 1 3. TERM... 1 4. EVIDENCE OF CONTRACT... 1 5. QUOTATION & ORDER PROCESS... 2 6. SUPPLY OF THE DELIVERABLES BY ORDER... 4 7. QUALITY OF THE DELIVERABLES... 6 8. CONSULTANT S PERSONNEL... 6 9. DEFECTIVE DELIVERABLES... 7 10. CONTRACT SPECIFIC TERMS... 8 11. SUSPENSION, ACCELERATION AND VARIATION OF WORK... 8 12. INSURANCE... 9 13. INVOICING... 9 14. PAYMENT... 10 15. FINANCIAL VIABILITY... 11 16. SUPPLIER TRANSITION... 11 17. MARKETING AND PROMOTION... 11 18. BEST TERMS TO BE PROVIDED... 11 19. GOODS AND SERVICES TAX... 11 20. TERMINATION... 12 21. DISPUTE RESOLUTION... 13 22. CONDITIONS TO SURVIVE EXPIRATION OR TERMINATION... 13 23. INTELLECTUAL PROPERTY RIGHTS... 13 24. RELEASE AND INDEMNITY... 14 25. CONFLICT OF INTEREST... 15 26. CONFIDENTIALITY... 15 27. ASSIGNMENT AND SUB CONTRACTING... 16 28. FORCE MAJEURE... 16 29. AUTHORISED OFFICER... 16 30. SECURITY AND ACCESS... 16 31. WORKPLACE HEALTH AND SAFETY... 16 32. INDUSTRIAL DISPUTES... 17 33. REPORTING REQUESTED BY PURCHASER... 17 34. RIGHT TO INFORMATION AND DISCLOSURE... 17 35. INFORMATION PRIVACY... 17 36. MISCELLANEOUS... 18 2011 Local Buy Pty Ltd. All rights reserved.
1. CONSTRUCTION OF PURCHASER AGREEMENT 1.1 A reference to a party to the Purchaser Agreement includes: Environmental Consultancy Consultancy Services BUS 225-1211 in the case of a natural person, that person and his/her personal representatives and assigns (transferees); and in the case of a corporation, the corporation, its successors and assigns (transferees). 1.2 Where a party is composed of 2 or more persons, each item of agreement by the party binds: 1.3 A reference to: (e) (f) (g) (h) (i) all of those persons collectively; and each of them as an individual. the singular includes the plural, and vice versa; a gender includes each other gender; a person includes a corporation, a firm, and a voluntary association; an Act includes an Act that amends, consolidates or replaces the Act; a section or other provision of an Act includes a section or provision that amends, consolidates or replaces the section or provision; money is a reference to Australian dollars and cents; a time of day is a reference to Australian Eastern Standard Time; 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 the words include, included or including when those words are used, will be interpreted as if they were followed by the further words but not limited to or the appropriate grammatical derivative. 1.4 No rule of construction or interpretation of the Default Purchaser Conditions shall apply to either Local Buy s or the Purchaser s disadvantage solely because Local Buy or the Purchaser prepared the Default Purchaser Conditions or either of them rely on a provision of the Default Purchaser Conditions. 1.5 Condition headings exist for convenience only and are to be disregarded when interpreting the Default Purchaser Conditions. 1.6 All information delivered as part of the Deliverable Services supplied under the Purchaser Agreement must be written in English. Where any document is a translation into English, the translation must be accurate. 1.7 If a provision of the Purchaser Agreement is held by a Court to be void, voidable, illegal or unenforceable, the provision will be deemed deleted from the Purchaser Agreement. 2. DEFINITIONS 2.1 Except where the context otherwise requires, the definitions set out in Clause 2.1 of the General Conditions of Contract to Local Buy Contract Numbers BUS 225-1211 and BUS 226-0212 shall apply to these Default Purchaser Conditions. 3. TERM 3.1 The Purchaser Agreement shall begin on the Order Commencement Date and expire when the provision of the Deliverable Services has been completed to the Purchaser s satisfaction unless terminated earlier in accordance with the terms of the Purchaser Agreement. 3.2 Notwithstanding the termination or expiry of the Local Buy Contract, the terms and conditions of the Local Buy Contract shall continue to apply to the Purchaser Agreement until such time as the Purchaser Agreement is terminated or expires. 4. EVIDENCE OF CONTRACT 2011 Local Buy Pty Ltd. All rights reserved. - 1
4.1 The Purchaser Agreement is constituted by as set out in Clause 4.8 of the General Conditions of Contract for LGA Arrangement BUS 225-1211 and BUS 226-0212. 4.2 In consideration of payment by the Purchaser, the Consultant agrees to meet its obligations pursuant to and provide the Deliverable Services in accordance with the requirements of the Purchaser Agreement and Local Buy Contract. 5. QUOTATION & ORDER PROCESS Authorised Purchaser List 5.1 To assist Purchasers with streamlining their procurement processes and ensuring their compliance with their procurement obligations, Purchasers may request that Local Buy inform Consultants that all purchasers of the Deliverable Services by that Purchaser are to be deemed to have been made under the Local Buy Contract. Such instructions to Local Buy must be provided in writing and signed by an authorised officer of the relevant Purchaser. 5.2 Where requested to do so by a Purchaser(s) pursuant to Condition 5.1, Local Buy shall issue to the Consultant a list of the Purchasers who have agreed that all purchases made by them shall be pursuant to the Local Buy Contract (an Authorised Purchaser Notice ). The Authorise Purchaser Notice shall include a commencement date for each listed Purchaser s instruction and, if applicable, an expiry date. Where no expiry date is included, the instruction shall be deemed to continue until such time as terminated in writing to Local Buy by an authorised officer of the relevant Purchaser. 5.3 The Consultant must acknowledge receipt of the Authorised Purchaser Notice within three (3) days of receipt. Where such acknowledgement is not received, Local Buy may Suspend the Consultant pursuant to Clause 15 of the Local Buy Contract. 5.4 The Consultant acknowledges and agrees that all purchases of the Deliverable Services by a Purchaser listed in the Authorised Purchaser Notice from the commencement date listed in the Notice are deemed to have been made under the Local Buy Contract and subject to the Contract Management Fee whether or not the Contract Number is stated on the relevant Order unless otherwise explicitly stated in writing by the relevant Purchaser s Authorised Officer. 5.5 The Authorised Purchaser Notice may be issued by Local Buy to the Consultant s nominated email address. RFQ Options 5.6 A Purchaser may issue an RFQ to one or more Consultants on the LGA Arrangement. 5.7 For the avoidance of doubt, the use of an RFQ by the Purchaser is optional and where sufficient information is available in the Contract documents, Purchasers may place an Order directly with the LGA Arrangement Consultant of their choice. 5.8 Where Local Buy varies the RFQ process pursuant to the Local Buy Contract, the Consultant and Purchaser shall ensure that they comply in all respects with the new RFQ process. Vendor Panel 5.9 Local Buy reserves the right to review the Consultant s or a Purchaser s Vendor Panel profile and to require changes to be made where those profiles do not reflect the terms of the Local Buy Contract. Where required to make changes by Local Buy, the Consultant or relevant Purchaser shall make such changes as required within three (3) Business Days of notification to their nominated email address. 5.10 The Consultant acknowledges and agrees that where they fail to register and create an electronic profile within the Vendor Panel system, they will not be entitled to receive and must not respond to Purchaser RFQs issued through Vendor Panel. 5.11 All RFQs received via Vendor Panel must be responded to via Vendor Panel and in accordance with the terms of the Local Buy Contract, the Default Purchaser Conditions, relevant RFQ and technical specification. 2011 Local Buy Pty Ltd. All rights reserved. - 2
5.12 The Consultant and Purchaser hold Local Buy harmless from any action, claims, liability and/or loss arising from or in any way related to their use of Vendor Panel (including for the avoidance of doubt, a fault in or failure of the Vendor Panel system, a failure to correctly register with Vendor Panel, RFQs issued or responded to through Vendor Panel and/or any Orders arising therefrom RFQ Monitoring 5.13 Local Buy reserves the right to monitor RFQs issued and the responses received for compliance with the terms and conditions of the Local Buy Contract and other general purposes including contract review, forecasting and administration purposes. 5.14 If Local Buy finds that an issued RFQ or the response received are substantially in conflict with the terms and conditions of the Local Buy Contract or Default Purchaser Conditions, Local Buy shall consult the Purchaser and Consultant to resolve the matter. 5.15 If the matter cannot be resolved as set out above in Condition 5.14, the Order will be deemed to be cancelled and, with respect to Queensland Local Government, will no longer constitute a valid LGA arrangement exemption for the purposes of the Local Government (Finance, Plans and Reporting) Regulation 2010. Purchaser RFQ Information 5.16 A Purchaser may complete the RFQ with further information and technical specifications of their required Deliverable Services requirements including but not limited to: a. service requirements; b. service levels; c. standards; Consultant RFQ Responses d. continuous improvement; e. strategy, design, transition and/or operation; f. plans or policies (security management, implementation, workplace health and safety and the like); and/or g. additional insurance requirements. 5.17 Where the Consultant wishes to respond to an RFQ, it must comply with any instructions provided by the Purchaser, respond in writing by way of the same medium through which the RFQ was issued and submit its response within the timeframe required by the relevant RFQ. 5.18 Unless stated as being not required by a Purchaser in the relevant RFQ, the Consultant shall provide (where relevant to the particular Deliverable Services) the following information as part of their RFQ response: a. pricing information taken from the current Pricing Schedule or better price if applicable; b. an expected supply date (and will keep the Purchaser informed of any delays); and/or c. if any of the specifications contained in a RFQ issued by a Purchaser cannot be conformed with, these shall be clearly noted in the Consultant s RFQ response. 5.19 The Consultant is to ensure RFQ responses issued under their own hand are fully itemised and individually priced. No grouping of the Deliverable Services and amalgamation of costings is allowed unless specified by the Purchasers. 2011 Local Buy Pty Ltd. All rights reserved. - 3
5.20 RFQ responses issued which do not conform may be returned by the Purchaser to the issuing Consultant to reformat and resubmit to the Purchaser. RFQ Acceptance 5.21 A Purchaser may request clarifications or enter into post-offer negotiations following receipt of a Consultant s RFQ response. 5.22 Local Buy may from time to time issue Purchasers with suggested template RFQs. Local Buy accepts no liability whatsoever arising from the use or failure to use any template RFQs so provided. 5.23 Purchasers are not bound to accept the lowest or any quotation supplied by a Consultant. 5.24 Quotations issued by Consultant after the closing date nominated by the Purchaser may not be accepted. 5.25 If the Consultant is selected following the RFQ process, the Purchaser shall issue an Order which will be subject to the Default Purchaser Conditions and form part of the Purchaser Agreement. Order Terms 5.26 Subject to Conditions 5.27 and 5.28, a Purchaser may include special conditions with any Order which do not materially conflict with the Request for Tender process carried out by Local Buy and which add to the Default Purchaser Conditions. These special conditions shall only be valid where the Consultant agrees to them. The Consultant s acceptance of an Order shall be deemed to constitute agreement by the Consultant to those special conditions for the purposes of the relevant Purchaser Agreement. 5.27 If Local Buy finds that the special conditions of an Order materially conflict with the terms and conditions of the Contract or Default Purchaser Conditions, Local Buy shall consult the Purchaser and Consultant to resolve the matter. 5.28 If the matter cannot be resolved as set out in Condition 5.27 above, the Order will be deemed to be cancelled and, with respect to Queensland Local Government, will no longer constitute a valid LGA arrangement exemption for the purposes of the Local Government (Finance, Plans and Reporting) Regulation 2010. 5.29 Notwithstanding Conditions 5.27 and 5.28 above, Local Buy accepts no liability whatsoever arising from special conditions issued by a Purchaser which have the effect of invalidating the Purchaser s right to claim an exception from their procurement obligations. Purchasers must obtain their own legal advice before issuing special conditions pursuant to Condition 5.26. 6. SUPPLY OF THE DELIVERABLES BY ORDER Supply by Order 6.1 Where an Order is placed with the Consultant, the Consultant must supply the Deliverable Services that comply in all respects with the requirements of the Purchaser Agreement. 6.2 The Purchaser may Order: any 1 type or item of the Deliverable Services; and Deliverable Services in 1 lot or instalments or in such quantities as may be required from time to time. 6.3 Where the Consultant receives an Order from a person other than the Authorised Officer the Consultant must: refer the Order to the Authorised Officer; and not supply the Deliverable Services identified in the Order until written confirmation from the Authorised Officer has been received. 6.4 The Consultant must supply all valid Orders for Deliverable Services placed by a Purchaser during the Term unless it has a genuine reason for being unable to do so (for example, inability to meet requested delivery timeframes). Where the Consultant has a genuine reason for not being able to supply an Order, 2011 Local Buy Pty Ltd. All rights reserved. - 4
the Consultant shall communicate that reason to the Purchaser within twenty-four (24) business hours of receipt of the relevant Order. 6.5 The Consultant must not supply other categories of services to Purchasers pursuant to the LGA Arrangement other than those tendered and appointed for under the Local Buy Contract without the written approval of Local Buy s Category Manager. Time for Supply and Delays 6.6 The Consultant must supply the Deliverable Services punctually. However, if a time for supply of the Deliverable Services is agreed between the Purchaser and Consultant (except where it is explicitly stated as being indicative only), the Deliverable Services must be supplied within the time stated and in such cases time shall be deemed to be of the essence, subject to Conditions 6.9 and 28. 6.7 Upon it becoming evident to the Consultant that supply of the Deliverable Services is likely to be delayed (for whatever reason), the Consultant must promptly notify the Purchaser in writing advising the Purchaser of: the reasons for the delay; the likely consequences of the delay; any steps suggested by the Consultant to mitigate such consequences; and where the Consultant believes that the delay has been caused by or contributed to by the Purchaser, details of same. 6.8 Where the delay referred to in Condition 6.7 is caused or contributed to in any way by the Consultant or the Consultant s sub-contractors, suppliers, manufacturers or agents: the Consultant shall not be entitled to any increase in the Order Price or damages, costs or expenses in connection with that delay; the Consultant shall engage with the Purchaser to determine the effect of the delay on the supply of the Deliverable Services and the way in which the Purchaser wishes to deal with the consequences of the delay; the notification provided pursuant to Condition 6.7 shall not release the Consultant from its obligation to supply the Deliverable Services by the agreed supply date or from any other obligation under the Purchaser Agreement, subject to Condition 28 (Force Majeure), unless the Purchaser consents to such delay in writing; and if the Consultant fails to supply the Ordered Deliverable Services by the agreed supply date, the relevant Purchaser may cancel the Order. Alternatively, the Purchaser may consent to the Consultant making available to the Purchaser a suitable and comparable service for the period of the delay without cost to the Purchaser. 6.9 Where the delay referred to in Condition 6.7 is caused or contributed to by the Purchaser, the Consultant: shall engage with the Purchaser to determine the effect of the delay on the supply of the Deliverable Services and the way in which the Purchaser wishes to deal with the consequences of the delay; shall not be in breach of the Purchaser Agreement due to the delay; shall be entitled to an extension of time which is equal to the duration of the delay; and may provide details of any verifiable direct losses or expenses that cannot be mitigated (apportioned so as to take into account the Purchaser s contribution to the delay) which the Purchaser may at its sole discretion consider. The Consultant is required to attempt to mitigate its losses and expenses and will provide the Purchaser with such evidence as the Purchaser may require verifying the validity of its claim. 6.10 Where the parties are unable to agree on the causes of the delay, the cost implications or any other matter relating to a delay in the supply of the Deliverable Services, either party may refer the matter to dispute resolution pursuant to Condition 21. 2011 Local Buy Pty Ltd. All rights reserved. - 5
6.11 The Consultant shall not be entitled to any extension of time for supply of the Deliverable Services except with the prior written consent of the Purchaser. Order Price 6.12 The Consultant must not increase the Order Price without the Purchaser s prior written consent. The Purchaser has the right to refuse to give its consent. Order Notifications 6.13 The Consultant will provide the following notifications to the Purchaser: receipt of an Order; Consultant start date; and any other requests for notification as specified by the Purchaser in the Order Obligations of Consultant 6.14 The Consultant must supply all personnel necessary for the proper supply or performance of the Services. 6.15 Where appropriate, the Consultant shall identify and report to the Authorised Officer any potential improvements or savings that can be made in the supply of the Deliverable Services. 6.16 The Consultant shall consult regularly during the term of the Purchaser Agreement with the Purchaser (through the Authorised Officer and the Consultant s representative). 6.17 The Consultant will also provide an account management person/s (the Account Manager ) who will provide the following services, but not limited to: (e) account manage reporting; account management; sales and service advice; cost enquiries; and Order enquiries. Additional Terms & Conditions 6.18 Unless otherwise indicated in these Default Purchaser Conditions, a Purchaser will not be bound by any other terms of the Consultant, even if a Purchaser has signed an invoice or similar document which incorporates additional terms. 6.19 Where a Purchaser is bound by the Queensland State Government Procurement Policy, that Purchaser may request that the Consultant comply with that the requirements of that policy. 7. QUALITY OF THE DELIVERABLES 7.1 The Consultant must document its compliance with its obligations under the Purchaser Agreement and use a Quality Assured System to assist in this compliance where relevant. The Consultant is not released or discharged from its obligations under the Purchaser Agreement from the use of a Quality Assured System. 7.2 If so requested, the Consultant shall allow access to the Consultant s Quality Assured System by the Purchaser to enable effective monitoring of the Consultant s compliance in the supply of the Deliverable Services under the Purchaser Agreement. 8. CONSULTANT S PERSONNEL 8.1 The Consultant must: engage and retain Consultant s Personnel who are able to competently provide the Deliverable Services 2011 Local Buy Pty Ltd. All rights reserved. - 6
(e) supply only such Consultant s Personnel as have the skills, experience and qualifications to meet or exceed the Purchaser s requirements as set out in the Purchaser s RFQ and Order; pre-screen, assess and validate the skills of its Consultant s Personnel prior to supplying them to a Purchaser (and review such assessments at least annually); ensure that the Consultant s Personnel are legally entitled to work in Australia; and ensure that all Consultant s Personnel engaged in the supply of the Deliverable Services have all the skills, experience and qualifications necessary to supply the Deliverable Services. 8.2 The relevant Purchaser shall be entitled at all times, acting reasonably, to refuse admission to the Purchaser s premises of any of the Consultant s Personnel. 8.3 Where the Consultant s Personnel attend at a Purchaser s premises, they must at all times comply with workplace health and safety legislation, the relevant Purchaser s policies and procedures and any other requirements that the relevant Purchaser may reasonably place on the Consultant s personnel. 8.4 The Purchaser shall be entitled to request, acting reasonably, that the Consultant remove from the supply of the Deliverable Services any member of the Consultant s Personnel. Where such a request is made, the Consultant shall promptly replace that person with a person of similar skills, experience and qualifications. 8.5 Any changes to the Consultant s Personnel must be approved in advance by the Authorised Officer (acting reasonably). The Consultant shall promptly supply the Authorised Officer with any evidence they require to make their decision. 8.6 The following shall apply to any Consultant s Personnel supplied by the Consultant: the Purchaser shall only be charged for the actual hours worked by the Consultant s Personnel (not including lunch breaks, travel time and the like unless otherwise explicitly authorised in writing by the relevant Purchaser); the Consultant is responsible for all remuneration payable to the Consultant s Personnel and the Order Price must include wages and all relevant awards, statutory charges, workcover payments, superannuation, taxes and the like. The Consultant accepts full liability for and fully indemnifies the Purchaser and Local Buy for any shortfall or failure to correctly calculate or take into account these amounts; the Consultant shall immediately inform the relevant Purchaser where the Consultant s Personnel are not able to attend for any reason (including sick leave) during the term of an Order; where authorised by the Purchaser in writing, the Consultant may replace the assigned Consultant s Personnel with another Consultant s Personnel who is closely equivalent in terms of experience, skill set and qualifications. 8.7 Where Key Personnel have been nominated by the Consultant to provide the Deliverable Services under a Purchaser Agreement, the Consultant must ensure that the Deliverable Services under that Purchaser Agreement are performed by those nominated Key Personnel and that there is no substitution of such Key Personnel without the relevant Purchaser s prior written consent (except in circumstances where such Key Personnel resign or are unable to work for health reasons). 8.8 The relevant Purchaser acting reasonably shall be entitled to request that any Key Personnel nominated by the Consultant be removed from providing the Deliverable Services under the relevant Purchaser Agreement. 8.9 Where there is a change to the Key Personnel pursuant to Condition 8.7 or 8.8, the Consultant shall promptly replace the Key Personnel with someone of similar seniority who is acceptable to the relevant Purchaser. 9. DEFECTIVE DELIVERABLES 9.1 Where, at any time during the supply of the Deliverable Services or any part of the Deliverable Services pursuant to an Order, or for 12 months after the supply of the Deliverable Services pursuant to an Order, an Authorised Officer determines, acting reasonably, that the Deliverable Services or a part of the Deliverable Services do not comply with the Specification or the Purchaser Agreement ("Defective 2011 Local Buy Pty Ltd. All rights reserved. - 7
Deliverable Services"), the Purchaser may give written notice to the Consultant of the lack of compliance, and require the Consultant to promptly supply or supply again the Deliverable Services or such part of the Deliverable Services as do not comply. 9.2 The Purchaser may, without derogating from any other right it may have on account of such unsatisfactory or defective supply, defer payment of that part of an invoice as relates to the Defective Deliverable Services until the Authorised Officer has certified that the resupplied Deliverable Services are compliant. 9.3 If the Consultant fails to comply with a requirement of a notice given under Condition 9.1, the Purchaser reserves the right to arrange for the supply of the Deliverable Services from another supplier. 10. CONTRACT SPECIFIC TERMS 10.1 The following Conditions shall apply where so required by the Purchaser to the Deliverable Services supplied. 10.2 The Consultant warrants that it has the necessary skills and expertise to be able to competently supply the Deliverable Services. 10.3 If any Contract Material is produced or reproduced in an electronic format, the Consultant must deliver it to the Purchaser in a format approved in writing by the Purchaser. 10.4 If any Contract Material is produced or reproduced in an electronic format or stored electronically, the Consultant must not store it on a foreign computer without keeping the current version of the Contract Material on separate media (approved in writing by the Purchaser) and delivering it to the Purchaser at intervals approved in writing by the Purchaser. 10.5 The Consultant must not produce, reproduce or store Contract Material in such a way that it is mixed with, attached to or indistinguishable without the use of a computer from; material that is not the subject of the Contract. 10.6 For the purposes of this Condition 10, foreign computer means a hard disk or other similar device affixed to a computer that is not the property of the Purchaser. 11. SUSPENSION, ACCELERATION AND VARIATION OF WORK 11.1 The Authorised Officer may instruct the Consultant in writing (a Direction Notice ) to accelerate, suspend or vary the supply of the Deliverable Services or any part of the Deliverable Services under the Purchaser Agreement. 11.2 Without limiting the generality of Condition 11.1, the Purchaser may direct the Consultant to: increase, decrease or omit any part of the Deliverable Services; or change the character or content of any part of the Deliverable Services; or change the direction or dimensions of any part of the Deliverable Services; or perform additional work. 11.3 The giving of a Direction Notice under Condition 11.1 does not invalidate the Purchaser Agreement. 11.4 If the Authorised Officer gives a Direction Notice requiring the Consultant to suspend or vary (by way of addition) the Deliverable Services or any part of the Deliverable Services, the Consultant shall be entitled to a reasonable extension of time for the supply of the Deliverable Services as determined by the Authorised Officer acting reasonably. 11.5 Subject to Conditions 11.6 and 11.7, if the Authorised Officer gives the Consultant a Direction Notice, the Consultant shall be entitled to reasonable compensation for loss, damage or expense suffered by the Consultant resulting from compliance with the requirements of the Direction as mutually agreed between the Purchaser and the Consultant or, failing agreement, as determined in accordance with Condition 21 and the Order Price shall be varied accordingly. 2011 Local Buy Pty Ltd. All rights reserved. - 8
11.6 The Consultant must take all reasonable steps to minimise any loss, damage or expense suffered by the Consultant as a result of the issuing of a Direction Notice. 11.7 The reasonable compensation provisions of Condition 11.5 shall not apply where the Consultant has requested the acceleration, suspension or variation to the supply of the Deliverable Services or where the Direction Notice to accelerate, suspend or vary the supply of the Deliverable Services is based on the Purchaser s reasonably held belief that the Consultant has breached any provision of the Local Buy Contract or the Purchaser Agreement. 11.8 The Consultant must not commence work on any variation to the Deliverable Services unless and until the variation has been agreed in writing by both the Purchaser and the Consultant. 12. INSURANCE 12.1 The Consultant must take out and keep current at its own expense insurance policies as required by Item 5 of Schedule A of the Local Buy Contract. 12.2 Where the Purchaser believes that specific circumstances warrant it, the Purchaser may require that the Consultant increase the level of its insurance cover to the sum nominated by the Purchaser. The requirement for any such increase shall be set out in the relevant RFQ or Order and the Consultant shall be deemed to have agreed to the insurance level increase on acceptance of the relevant Order. 12.3 The Consultant must give the Purchaser upon request, for each of the insurance policies it is required to maintain under Condition 12.1 above a certificate of currency. 12.4 The Purchaser may make a request under Condition 12.3 above only once annually in respect to a Purchaser Agreement unless it possesses reasonable grounds to believe that a relevant policy has been vitiated or terminated. For the avoidance of doubt, there is no limit on the number of times a prospective Purchaser may make a request under Condition 12.3 prior to a Purchaser Agreement coming into force (eg as part of RFQ processes). 12.5 The Consultant must promptly notify the Purchaser and Local Buy of any cancellation or lapse of any policy of insurance required by Conditions 12.1 or 12.2 above. 12.6 If the Consultant fails to discharge an obligation under Conditions 12.1 or 12.2 or issues a notification pursuant to Condition 12.5 above: Local Buy or the Purchaser may obtain or maintain the required insurance, at its option and at the Consultant's cost; and the Consultant must reimburse, upon demand, whatever cost Local Buy or the Purchaser incurs in exercising that entitlement. 12.7 The Consultant will within five Business Days of any claim arising, notify the Purchaser and keep the Purchaser informed of any claims arising from or relevant to the Deliverable Services which fall for consideration under any policy of insurance required by Condition 12.1 above. 12.8 Nothing in this Condition 12 limits the obligations, liabilities and responsibilities of the Consultant under the Purchaser Agreement. 12.9 The Consultant must ensure that during the Term its sub-contractors have in force at all times such levels of insurance cover as may reasonably be expected to be held by a supplier carrying out services similar to the Deliverable Services. 13. INVOICING 13.1 The Consultant shall submit invoices to the Authorised Officer once the Purchaser has accepted delivery of the Goods pursuant to Condition 6.25, unless otherwise specified in the Specification or Order or agreed between the parties. The Purchaser will not have any obligation to pay the Consultant for Deliverable Services until the Authorised Officer has been given a correctly rendered invoice. 13.2 A correctly rendered invoice must: identify the Deliverable Services the subject of the invoice; and specify the title of the Local Buy Contract; and 2011 Local Buy Pty Ltd. All rights reserved. - 9
(e) (f) (g) (h) (i) (j) (k) (l) (m) Environmental Consultancy Consultancy Services BUS 225-1211 specify the Contract number allocated to the Local Buy Contract and Order number, as well as any other number as the Purchaser may specify in writing to the Consultant for the purposes of the Local Buy Contract or Purchaser Agreement)(if any); and where Services are charged on a time basis, be supported by records of time spent by individual persons on the Services, verified by the Authorised Officer; and specify details of the Order; and specify details of the Order Price requested by the Purchaser; and provide sufficient detail to enable the Authorised Officer to assess progress against targets (if any) set out in the Order or the Specification; and specify the Australian Business Number of the Consultant; and specify the address for payment of the Consultant; and specify the date of supply of the Deliverable Services identified in the invoice; and specify the Consultant s invoice number and invoice date; and specify the Order Price payable by the Purchaser and particulars of any GST payable in respect of the Order Price; and otherwise comply with the requirements of a tax invoice for the purposes of the GST Act. 13.3 Upon receipt of an invoice, the Authorised Officer may require the Consultant to provide additional information to assist the Authorised Officer to determine whether or not an amount is payable. 13.4 The Purchaser shall be entitled to require that all invoices (including for work performed by the Consultant s sub-contractors and agents) be raised and issued directly by the Consultant. 13.5 Where a Purchaser accepts invoices from the Consultant s sub-contractors or agents, the Consultant shall ensure that those invoices comply with the requirements of this Condition 13. 14. PAYMENT 14.1 Subject to the Authorised Officer s certification that: the Deliverable Services supplied by the Consultant comply with the relevant Order, the Specification, the Purchaser Agreement and the Local Buy Contract; and the Deliverable Services supplied by the Consultant are complete; and the Consultant s invoice is in accordance with the Purchaser Agreement, the Purchaser must pay the amount due to the Consultant within thirty (30) days of receipt of an invoice (or such other period as may be mutually agreed in writing between the parties) or, if additional information is required by the Authorised Officer, within 30 days (or such other period as may be mutually agreed in writing between the parties) after receipt of the additional information. 14.2 Upon receipt of an invoice, the Authorised Officer may require the Consultant to provide additional information to assist the Authorised Officer to determine whether or not an amount is payable. 14.3 If the Purchaser pays an invoiced amount to the Consultant, and it is subsequently found not to have been a correctly rendered invoice, the Purchaser may deduct any overpaid amount owed to the Purchaser from the next invoiced payment or, if no other payment is due to the Consultant pursuant to the Local Buy Contract, recover the amount from the Consultant as a debt due and payable to the Purchaser. 14.4 Payment of money to the Consultant does not constitute an admission by the Purchaser that Deliverable Services have been supplied in accordance with the Purchaser Agreement. 14.5 Upon payment for the Deliverable Services, property in that part of the Deliverable Services comprising the Goods shall pass to the Purchaser. 14.6 The Consultant shall not be entitled to any interest or charge for extending credit or allowing time for the payment of the Order Price unless otherwise provided in the Purchaser Agreement. 2011 Local Buy Pty Ltd. All rights reserved. - 10
14.7 Unless otherwise agreed with the Consultant, the Purchaser shall be under no obligation to pay the Consultant s sub-contractors or agents individually. 15. FINANCIAL VIABILITY 15.1 The Consultant shall advise the Purchaser immediately if the Consultant s financial viability is compromised to the extent that the compromise could reasonably be considered to be a risk to the provision of Deliverable Services in accordance with the terms and conditions of the Purchaser Agreement. 16. SUPPLIER TRANSITION 16.1 In the event that a Purchaser changes its supplier of Deliverable Services and this change of suppliers involves the transfer of infrastructure or information to occur between the previous supplier and the new supplier, the Consultant shall do all things reasonably within its power to ensure the transition is efficient, orderly, prompt and timely. This applies whether the transition occurs from another supplier to the Consultant, or from the Consultant to another supplier under the LGA Arrangement. 16.2 Where the Consultant has informed the relevant Purchaser in advance and the Purchaser has approved same, the Consultant may charge a reasonable fee to provide the transition services set out in Condition 16.1. For the avoidance of doubt, where a Purchaser does not approve the fee sought by the Consultant, the Consultant shall have no obligation to provide the transition services. 17. MARKETING AND PROMOTION 17.1 No information relating to an Order or Purchaser Agreement for the provision of any Deliverable Services under the Local Buy Contract may be published in any advertising medium without the prior written approval of the Purchaser. The written approval must clearly indicate the precise material to which the information is to be provided. 17.2 The Consultant may only use the Purchaser s logo in the Consultant s marketing strategy upon receipt of the Purchaser s written confirmation to do so. Such use of the Purchaser s logo shall be solely limited to the marketing of the Consultant s Deliverable Services as they apply to the Deliverable Services of the Local Buy Contract, and for the period of the Purchaser Agreement. 17.3 The Consultant must not issue any information, publication, document or article for publication in any media which includes details of the Deliverable Services under the Purchaser Agreement without the prior written approval of the Purchaser. 18. BEST TERMS TO BE PROVIDED 18.1 The price offered to a Purchaser by the Consultant in any RFQ response or other quotation under the Local Buy Contract shall only exceed the price set out in the Pricing Schedule where a Purchaser has sought and the Consultant accepted an increase in their professional indemnity insurance cover or liability cap as provided for in sections 6 and 7 of the Specification. 18.2 Where a Purchaser requests from the Consultant a more favourable price, fee, term or condition than those specified in the Local Buy Contract, the Consultant may at its sole and absolute discretion, offer the Purchaser a more favourable price, fee, term or condition under the terms of the Local Buy Contract. 18.3 The Consultant shall not offer a more favourable price, fee, margin, term, condition or discount under this Condition 18 outside of the terms and conditions of the Local Buy Contract to any Purchaser unless the Consultant is able to demonstrate to Local Buy that the Purchaser has undertaken a separate, legally valid procurement process. 18.4 The Consultant agrees that a failure to comply with this Condition 18 will entitle Local Buy to Suspend the Consultant in accordance with the terms and conditions of the Local Buy Contract. 19. GOODS AND SERVICES TAX 19.1 Words and phrases defined in the GST Act have the same meaning in this Condition 19 unless the context indicates otherwise. 2011 Local Buy Pty Ltd. All rights reserved. - 11
19.2 The Order Price includes the Purchaser s liability for GST on the supply of the Deliverable Services. The Purchaser is not obliged to pay any additional amount to the Consultant on account of GST on the supply of the Deliverable Services. 19.3 The Consultant must ensure that all invoices rendered to the Purchaser under the Purchaser Agreement are in a format that identifies any GST paid, and which permits the Purchaser to claim an input tax credit. However, this Condition 19.3 does not apply if the supply of the Deliverable Services is not a taxable supply. 19.4 Where the Consultant is not registered for GST and does not have an ABN or the parties are bound by a Pay As You Go voluntary agreement under section 12-55 of Schedule 1, Part 2-5 of the Taxation Administration Act 1953, the Purchaser is entitled to withhold from any payment tax calculated and to be held in accordance with the Pay As You Go withholding system. 19.5 The Consultant indemnifies the Purchaser fully from any claims, damages, costs (including legal costs), losses and the like arising in any way from the Consultant s failure to comply with its obligations under the GST Act. 20. TERMINATION 20.1 Without prejudice to its rights at common law, the Purchaser may immediately terminate a Purchaser Agreement or any Order, by written notice to the Consultant (a Notice of Termination for Cause): (e) (f) (g) where the Consultant makes (or has made including as part of the RFQ process) any statement, fact, information, representation or provides material which is fraudulent, false, untrue, or incorrect in a way which adversely affects the Purchaser; 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 Consultant including for corrupt conduct or for collusive pricing; where the Consultant commits a substantial breach of the Purchaser Agreement that is not capable of remedy; where the Consultant commits a substantial breach of the Purchaser Agreement in a manner that is capable of remedy and does not remedy the breach within seven (7) days of receiving a notice from the Purchaser 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 Purchaser may reasonably allow; on the occurrence of an Insolvency Event; the Deliverable Services no longer being required; or as otherwise explicitly provided for in the Purchaser Agreement. 20.2 In addition, or as an alternative to termination of the Purchaser Agreement in accordance with Condition 20.1, the Purchaser may at its sole discretion, in circumstances which would otherwise entitle the Purchaser to terminate the Purchaser agreement in accordance with Condition 20.1: provide the Consultant with a notice (a Rectification Notice ) setting out the details of the Consultant s default and giving the Consultant a timeframe within which to rectify that default to the Purchaser s satisfaction; and/or let such contracts as the Purchaser decides are necessary to perform that part of the obligations of the Consultant under the Local Buy Contract as are yet to be performed or any of them; and/or suspend or cease all payments otherwise due to the Consultant. 20.3 Upon termination of the Purchaser Agreement or Order pursuant to Condition 20.1, all money which has been paid and all money to be paid for Deliverable Services supplied to the date of termination will be in full and final satisfaction of all claims by the Consultant under the Purchaser Agreement. 20.4 Notwithstanding the termination or expiry of the Local Buy Contract, the terms and conditions of the Local Buy Contract shall continue to apply to the Purchaser Agreement until such time as the Purchaser Agreement is terminated or expires. For the avoidance of doubt, this includes the reporting and Contract Management Fee provisions of the Local Buy Contract. 2011 Local Buy Pty Ltd. All rights reserved. - 12
21. DISPUTE RESOLUTION 21.1 The parties agree to attempt in good faith to resolve through negotiation any dispute regarding the Purchaser Agreement. 21.2 If a dispute arises between the parties regarding the Purchaser Agreement, a 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. 21.3 A Dispute Notice must be referred to a panel consisting of a representative of the Consultant who is authorised to settle the dispute and the Authorised Officer. 21.4 Within 7 days of the giving of the Dispute Notice (or such other timeframe as the parties may agree), the panel must confer at least once to attempt to resolve the dispute or to agree on resolving the dispute by other means. 21.5 Where the dispute cannot be resolved by the panel pursuant to Condition 21.4, either party may refer the Dispute Notice to Local Buy for resolution. 21.6 Where a dispute is referred to Local Buy for resolution, Local Buy shall attempt to resolve the dispute in accordance with the Dispute Resolution provisions of the Local Buy Contract. 21.7 If the dispute has not been resolved within twenty eight (28) days of the dispute being referred to Local Buy (or such other longer timeframe as the parties may agree), the dispute may be referred to arbitration by either party. 21.8 Arbitration shall be effected by an arbitrator agreed by the parties or failing agreement, nominated by the Queensland branch of the Institute of Arbitrators and Mediators Australia (IAMA). The arbitration shall be conducted in accordance with the provisions of the Commercial Arbitration Act 1990. 21.9 Nothing in this Condition 21 shall prejudice the right of a party to institute proceedings to enforce payment due under the Purchaser Agreement or to seek injunctive or urgent declaratory relief in respect of a dispute under this Condition 21 or any matter arising under the Purchaser Agreement. 21.10 The parties must use their reasonable endeavours to continue to perform their obligations under this Purchaser Agreement despite the existence of a dispute. 22. CONDITIONS TO SURVIVE EXPIRATION OR TERMINATION 22.1 Conditions 1, 2, 3.2, 4, 9, 12, 16, 17, 19, 22, 23, 24, 26, 32, 34, 35 and 36 (inclusive) and any provisions relating to warranties provided by the Consultant shall survive the expiry or termination of the Purchaser Agreement. 23. INTELLECTUAL PROPERTY RIGHTS Existing Contract Material 23.1 The Purchaser Agreement does not affect ownership of Intellectual Property Rights in any Existing Contract Material. New Contract Material 23.2 Unless otherwise agreed between the Purchaser and Consultant in writing, title to and Intellectual Property Rights in all New Contract Material provided to the Purchaser as part of the Deliverable Services will upon payment vest in the Purchaser. 23.3 The Consultant must work with the relevant Purchaser (including signing all required documents) to ensure that the Intellectual Property Rights in all New Contract Material are legally transferred, assigned and vested in the Purchaser. Personnel 2011 Local Buy Pty Ltd. All rights reserved. - 13
23.4 Prior to an individual commencing work in respect of any New Contract Material on behalf of the Consultant, the Consultant must obtain from that individual, in writing, and provide to the Purchaser, upon request: all consents, permissions and assignments to enable the Purchaser to exercise in full, without cost to the Purchaser and without impediment, the rights granted under this Condition 23; and without limiting paragraph, a consent to any act or omission (including the specific acts or omissions set out in the Contract) which would otherwise infringe the Moral Rights of that individual. If requested by the Purchaser, such consent must be in a form specified by the Purchaser. Third Party Rights 23.5 The Consultant warrants that the supply of the Deliverable Services by the Consultant to the Purchaser under the Purchaser Agreement will not infringe the Intellectual Property Rights of any third party. 23.6 Where it becomes apparent that a third party s intellectual property rights are infringed by the Deliverable Services supplied by the Consultant, the Consultant shall use its best endeavours to provide a version of the Deliverable Services which excludes the infringing material. It shall be at the sole discretion of the Purchaser whether the Purchaser is willing to accept the modified version of the Deliverable Services. 23.7 The Consultant fully indemnifies Local Buy and the Purchaser in respect of any breach by the Consultant of the intellectual property rights of any third party. 24. RELEASE AND INDEMNITY 24.1 To the extent permitted by law and to the extent that the same is due to the wilful, wrongful, unlawful and/or negligent act, error or omission of the Consultant, its employees, sub-contractors or agents, the Consultant indemnifies each Purchaser and their respective employees (collectively referred to as the Indemnified Parties ) against, and must pay the Indemnified Parties on demand, the amount of any damages, losses, claims, expenses (including legal costs) or liabilities which the Indemnified Parties suffer or incur in respect of: a) loss of, or damage to, or loss of use of, any real or tangible personal property, or the personal injury, disease or illness (including mental illness) to, or death of, any person, arising out of the Consultant s performance of the Purchaser Agreement; b) any reckless act or omission; c) any wilful, unlawful or negligent act or omission of the Consultant or the Consultant s Personnel (including Key Personnel); d) a breach of any law; e) a failure to comply with a Purchaser s procurement obligations in respect to the engagement of sub-contractors for an entire project engagement as required by Clause 37 Error! Reference source not found.of the Local Buy Contract; or f) any infringement or alleged infringement of any Intellectual Property Rights in respect of the provision of the Deliverable Services or anything used or supplied by the Consultant in connection with the Deliverable Services. 24.2 The liability of the Consultant to indemnify the Indemnified Parties will be reduced proportionally to the extent that an act or omission of the Indemnified Parties contributed to the damage, expense, loss or liability. 24.3 Unless a higher cap is agreed between the Consultant and the relevant Purchaser, the Consultant s and Purchaser s maximum liability to each other under a Purchaser Agreement (whether under contract, tort, statute or in equity) arising out of or in connection with the applicable Purchaser Agreement is limited to $2,000,000 (two million dollars). 24.4 The cap set out in Condition 24.3 shall not apply to: a) liability for fraud or criminal conduct; 2011 Local Buy Pty Ltd. All rights reserved. - 14