DPTI - Department of Planning, Transport and ...€¦ · Web viewRESOLUTION OF DISPUTES 13. 29....

GENERAL CONDITIONS OF CONTRACT

FOR THE SUPPLY OF PLANT

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Edition: December 2012 GCC Supply of Plant

TABLE OF CONTENTS

1. OBJECTIVES AND SCOPE 32. DEFINITIONS 33. INTERPRETATION 54. EVIDENCE OF CONTRACT 55. CONTRACT ADMINISTRATION 66. CONTRACTOR’S ACKNOWLEDGEMENTS 67. NON-EXCLUSIVITY 68. DELIVERY 69. TECHNICAL INFORMATION AND RECORDS 710. LATE PROVISION OF PLANT 711. OWNERSHIP OF AND RISK IN THE PLANT 812. ACCEPTANCE OF THE PLANT 813. WARRANTY PERIOD 914. CONTRACTOR’S WARRANTIES 915. PRICES 1016. GST 1017. PAYMENT ARRANGEMENTS 1018. CONFLICTS OF INTEREST 1119. INDEMNITY 1120. INSURANCE 1121. CONFIDENTIAL INFORMATION 1122. DISCLOSURE OF CONTRACT 1223. FORCE MAJEURE 1224. REMEDIES 1325. TERMINATION 1326. EFFECT OF EXPIRY OR TERMINATION OF THIS CONTRACT 1327. COMPLIANCE WITH LAWS AND POLICIES 1328. RESOLUTION OF DISPUTES 1329. PUBLICITY 1430. SUB-CONTRACTING 1431. ENTIRE AGREEMENT 1432. MODIFICATION OF CONTRACT 1433. WAIVER 1434. SEVERANCE 1435. READING DOWN 1536. COSTS 1537. NOTICES 1538. NO ASSIGNMENT 1539. VARIATIONS 1540. RELATIONSHIP 1641. WORK HEALTH AND SAFETY 1642. ENVIRONMENTAL CONSIDERATIONS 1643. TRAINING 16

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1. OBJECTIVES AND SCOPE

The Parties enter into this Contract on the basis of the following:

A. the Principal requires the Supply of Plant; and

B. the Contractor agrees to Supply the Plant to the Principal in accordance with this Contract.

The provisions of this Contract shall be construed so as to give full effect to the objectives contained in this clause.

2. DEFINITIONS

“Acceptance Date” means the date the Plant is accepted by the Principal;

“Business Day” means any day that is not a Saturday or Sunday or a public holiday in South Australia;

“Complying Plant” is Plant that comply with the Contractor’s Warranties in clause 14;

"Confidential Information" means information which is identified either as confidential information (if disclosed by the Principal) or proprietary information (if disclosed by the Contractor), but does not include this Contract;

“Conflict of Interest” means any interest or duty which conflicts or potentially conflicts with the obligations, liabilities or rights of either party as written in this Contract;

"Contractor" means the entity who as a party to the Contract, is bound to Provide the Plant in accordance with the Contract;

"Contract" means the agreement between the Contractor and Principal;

“Defect” means:

(a) any defect in the Plant; or

(b) any non-compliance with the requirements of the Specification,

arising at any time prior to the expiration of the Warranty Period;

"Contractor’s Representative" means the person as the Contractor may nominate in writing from time to time to and with the approval of the Principal;

“Date for Delivery” means the date for delivery of the Plant specified in the Specification or otherwise notified by the Principal;

“Delivery” means the delivery of the Plant to the Delivery Point;

“Delivery Point” means any one of the locations described in the Specification, where the Plant will be delivered;

“Document” means any embodiment of any text or image however recorded;

“Event of Default” occurs if the Contractor:

(a) has an Insolvency Event;

(b) has a Conflict of Interest;

(c) does not provide sufficient Personnel to meet its obligations;

(d) does not comply with the insurance requirements;

(e) assigns any of its rights or obligations, except as allowed by this Contract;

(f) does not comply with any notice given by the Principal under this Contract;

(g) is subject to a change of ownership;

(h) does not comply with any Law;

(i) becomes the subject of a takeover; or

(j) is in breach of this Contract and fails to rectify the breach within 30 days of being notified of the breach by the Principal;

“GST” means the tax imposed by the GST Law;

“GST Law“ has the meaning attributed in the A New Tax System (Plant and Services Tax) Act 1999 (Cth);

“GST Rate” has the meaning attributed in the GST Law;

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“Insolvency Event” means:

If the Contractor is a body corporate:

(a) an administrator is appointed to the Contractor;

(b) the Contractor resolves to be wound up;

(c) a court order is made that the Contractor be wound up (for insolvency or otherwise);

(d) the Contractor ceases business;

(e) a receiver or manager is appointed to the Contractor;

(f) a liquidator or provisional liquidator of the Contractor is appointed;

(g) the Contractor enters into an arrangement with its creditors; or

(h) the Contractor is unable to pay its debts when they are due;

If the Contractor is a natural person or:

(a) the Contractor has committed an act of bankruptcy as contemplated by the Bankruptcy Act 1966 (Cth);

(b) the Contractor is unable to pay his or her debts as and when they become due and payable;

(c) the court has made a sequestration order against the Contractor’s estate;

(d) a creditors’ petition has been presented against the Contractor;

(e) the Contractor has presented to the official receiver a declaration of intention to present a debtor’s petition;

(f) the Contractor becomes a bankrupt;

(g) a meeting of creditors of the Contractor is convened; or

(h) Contractor lodges with his or her trustee a proposal to his or her creditors for a composition in satisfaction of his or her debts or a scheme of arrangement of his or her affairs;

If the Contractor is trading as a partnership, the occurrence of any of the events described in above relation to any of the partners of the partnership.

“Intellectual Property Rights” means all intellectual property rights, including:

(a) patents, plant breeders’ rights, copyright, rights in circuit layouts, registered designs, trade marks, know-how and any right to have Confidential Information kept confidential; and

(b) any application or right to apply for registration of any of the rights referred to in subclause (a) above,

but for the avoidance of doubt excludes moral rights and performers’ rights;

“Laws” means all Acts of Parliament of the Commonwealth of Australia and of the State of South Australia, and the requirements of all ordinances, regulations, by-laws, orders, and proclamations;

“Personnel” means any subcontractors, employees, agents and any other person employed or engaged by the Contractor to perform this Contract, and includes the Contractor’s Representative;

"Plant" means the plant described in the Specification, which includes all other incidental services and documentation required to be supplied by the Contractor under this Contract;

“Prices” means the prices set out in or determined in accordance with the schedules submitted with the Contractor’s tender;

"Principal’s Representative" means the person identified in the Annexure;

“Representative” means the persons nominated as the Contractor’s Representative and the Principal’s Representative;

"Specification" means the document, labelled as such, which stipulates the nature, scope and other requirements for the Supply of Plant under this Contract;

"Supply of Plant" includes any of the following:

(a) the supply only of Plant from a place nominated by the Contractor;

(b) the supply and delivery of Plant to the Delivery Point;

“Tax Invoice” has the meaning attributed in the GST Law;

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“Warranty Period” has the meaning in Clause 13 “Warranty Period”.

“Warranty Services” means the scheduled maintenance services recommended by the manufacturer.

3. INTERPRETATION

In this Contract:

(a) A reference to any legislation includes:

(i) all legislation, regulations, proclamations, ordinances, by-laws and instruments issued under that legislation; and

(ii) any modification, consolidation, amendment, re-enactment or substitution of that legislation;

(b) Any word importing:

(i) the singular includes the plural;

(ii) the plural includes the singular; and

(iii) a gender includes every other gender.

(c) Words referring to individuals include corporations, unincorporated associations, partnerships, trusts and joint ventures;

(d) A reference to a party includes that party’s administrators, successors and permitted assigns;

(e) Any act due on a weekend or a public holiday may be done the next Business Day;

(f) Where a word or phrase is given a defined meaning, then any other grammatical form of that word or phrase has the same meaning;

(g) A reference to two or more persons means all of them together;

(h) The words “clause” or “schedule” refer to this Contract;

(i) A reference to a clause number includes its sub-clauses;

(j) The word “or” is not exclusive;

(k) "Includes" or “including” shall not be interpreted as a word of limitation.

(l) Clause headings are for reference only and do not form part of this Contract;

(m) Monetary references are references to Australian currency; and

(n) This Contract between the parties comprises these standard General Conditions of Contract and all other documents listed in the Schedule of Contract Documents. In resolving inconsistencies in this Contract, the following order of precedence shall apply:

1. the Formal Instrument of Agreement (if prepared)

2. the Letter of Acceptance (if prepared)

3. any other documents agreed by the Parties to be part of the Contract and noted as such

4. the Specification

5. General Conditions of Contract.

4. EVIDENCE OF CONTRACT

4.1 Unless an Instrument of Agreement is executed by the parties, this Contract is evidenced by the agreement in writing between the parties which comprises of those documents listed in the “Schedule of Contract Documents”.

4.2 If stated in the letter of acceptance, the Principal will prepare a Formal Instrument of Agreement in duplicate and the Contractor must execute both copies in the manner described in the letter within 14 days of receipt of a correctly prepared Formal Instrument of Agreement.

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5. CONTRACT ADMINISTRATION

5.1 Each Party shall at all times have a Representative who has authority to:

(a) exercise all of the powers and functions of his or her party under this Contract other than the power to amend this Contract;

(b) bind his or her party in relation to any matter arising out of or in connection with this Contract; and

(c) amend the Specification (including Annexures, Schedules and Attachments) after the amendment has been agreed by both Representatives.

5.2 The Principal’s Representative will be that person described in the Annexure or such other person as the Principal may nominate in writing from time to time.

5.3 The Contractor’s Contract Representative will be that person nominated in writing by the Contractor to the Principal’s Representative from time to time.

6. CONTRACTOR’S ACKNOWLEDGEMENTS

6.1 The Contractor is deemed to have:

(a) examined carefully and acquired actual knowledge of the contents of the Specification, this Contract including all schedules and any other information made available in writing by the Principal to the Contractor in respect of this Contract;

(b) examined all information relevant to the risks, contingencies and other circumstances having an effect on the Contractor‘s obligations under this Contract and which is obtainable by the making of reasonable enquiries;

(c) satisfied itself as to the correctness and sufficiency of its offer and that the remuneration payable to the Contractor under this Contract covers the costs of complying with all its obligations under this Contract and of everything necessary for the proper performance of this Contract; and

(d) fully acquainted itself with all conditions (irrespective of whether the condition is latent or any other kind of condition) affecting the Supply of Plant.

6.2 Any failure by the Contractor to actually do the things described in the preceding clause does not relieve the Contractor from responsibility for estimating the difficulty or cost of properly providing the Plant and otherwise complying with this Contract and the Contractor:

(a) enters into this Contract at its own risk;

(b) will not make any claim against the Principal for any loss or liability resulting from the Contractor‘s failure to estimate the difficulty or cost of properly providing the Plant; and

(c) indemnifies the Principal and must keep the Principal indemnified against any loss or liability resulting from the Contractor‘s failure to estimate the difficulty or cost of properly providing the Plant.

7. NON-EXCLUSIVITY

This Contract is entered into on a non-exclusive basis. The Principal may purchase other plant similar to the Plant from other providers.

8. DELIVERY

8.1 The Contractor shall deliver the Plant to the Delivery Point by the Date for Delivery or by such other date as is agreed in writing between the Principal and the Contractor. If requested by the Principal, the Contractor shall give reasonable notice of the date it will deliver the Plant.

8.2 When requested by the Principal’s Representative, the Contractor shall submit a reproducible copy of its program for procurement, fabrication and delivery of Plant (“Delivery Program”) within 14 days of acceptance of tender.

8.3 The Delivery Program details shall include the following:

(a) Placing sub-orders milestones

(b) Delivery period of sub-orders

(c) Manufacturing Program (where applicable)

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(d) Dispatch date

(e) Delivery period and Date for Delivery.

8.4 The Contractor shall update and submit its Delivery Program every 14 days or at such intervals as may be required by the Principal.

8.5 When delivered, each item of Plant and attachments shall:

(a) be fully lubricated;

(b) have all adjusting threads and mechanisms coated with an efficient rust inhibitor;

(c) be provided with number of sets of keys as stated in the Annexure; and

(d) have all reservoirs at maximum capacity for immediate use.

8.6 With respect to items of Plant that are subject to the Road Traffic Act 1961 (SA), the Contractor shall ensure that the Plant supplied complies in all respects with the current requirements of the Road Traffic Act and Regulations. The Contractor shall, where required under the Motor Vehicles Act and Regulations:

(a) register the Plant with continuous Government motor vehicle registration;

(b) supply the registration papers with each item of Plant; and

(c) supply and fit number plates.

The Principal will pay for the initial registration fee.

9. TECHNICAL INFORMATION AND RECORDS

9.1 On or prior to the Date for Delivery, the Contractor shall supply the following to the Principal’s Representative:

(a) all technical information, manuals and other documents which may reasonably be required for the operation and maintenance of the Plant and the training of personnel who use the Plant; and

(b) a completed “Plant Detail and Service Record Sheet” which lists the make, model, serial and part numbers of components and attachments and capacities and dimensions of each item of the Plant;

9.2 The number of manuals shall be as stated in the Annexure. The manuals shall include operator, parts and service manuals, including all schematic and wiring diagrams showing all electrical and electronic components and interconnecting wiring and any applicable hydraulic and pneumatic system schematic diagrams of the Plant.

9.3 The Contractor grants the Principal a royalty free, non-exclusive, transferable, perpetual licence to use those intellectual property rights associated with the Goods which may be necessary for the operation, maintenance, repair or alteration of the Goods by or on behalf of the Principal.

9.4 The Contractor shall supply and fit in a conspicuous position on each item of Plant delivered, a servicing chart for the complete item showing service points, lubricants and time intervals between lubrications. Quantities and dimensions on gauges, service and data plates shall be in SI units.

9.5 The Contractor must maintain and retain, for a period of 6 years, full and proper records of all Plant and Warranty Services provided under this Contract. Such records will include all data used in the creation of invoices issued pursuant to this Contract.

9.6 The Specification may require the Contractor to generate records or reports which demonstrate that the Plant complies with this Contract. The Contractor must provide a copy of all such records (in electronic and hard copy) to the Principal. The Principal’s receipt and / or approval of these records or reports does not relieve the Contractor from responsibility for the Contractor’s errors or omissions or compliance with the requirements of this Contract.

9.7 Upon reasonable notice being given, the Contractor will make the records referred to in this clause available to the Principal and allow the inspection and copying of such records.

10. LATE PROVISION OF PLANT

If the Contractor fails to provide the Plant by the Date for Delivery and the Principal needs to hire other plant as a direct consequence of the late delivery, the Contractor shall be indebted to the Principal an amount equal to the daily cost of hiring equivalent plant for every day after the Date for Delivery by which the Supply of the Plant remains outstanding.

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11. OWNERSHIP OF AND RISK IN THE PLANT

11.1 Ownership and property in the Plant shall pass to the Principal upon payment.

11.2 Risk in the Plant shall pass to the Principal when the Plant is delivered to the Delivery Location.

12. ACCEPTANCE OF THE PLANT

12.1 The Plant is accepted when:

(a) the Plant has been satisfactorily supplied and delivered in accordance with the requirements of this Contract;

(b) all necessary documentation has been provided to the Principal, including evidence of all testing necessary to demonstrate compliance with the requirements of this Contract; and

(c) the Supply of Plant is acknowledged in writing by the Principal, which must not be unreasonably withheld and will include an Acceptance Date.

12.2 If testing (which includes examination, inspection and measurement) is carried out to fulfil a requirement of the Specification for the purpose of verifying conformance with the Contract, the costs of and incidental to that testing shall be borne by the Contractor. The cost of testing is deemed to be included in the rates or lump sums and no separate payment will be made by the Principal for the testing.

12.3 If further testing is carried out as result of a direction by the Principal, costs of and incidental to testing shall be borne by the Principal unless:

(a) the test shows that the Plant does not comply with the Contract; or

(b) the test is consequent upon a failure of the Contractor to comply with a requirement of the Contract.

12.4 Where the Plant has been sold by sample, the Plant shall comply with the sample.

12.5 If the Principal becomes aware that the Plant is not in accordance with the Contract, the Principal will advise the Contractor as soon as practicable.

12.6 If the Plant provided by the Contractor is not in accordance with the requirements of the Contract, the Contractor shall:

(a) replace the non-conforming Plant with Plant that conform with the Contract; or

(b) repair the non-conforming Plant so that it conforms with the Contract.

12.7 The repair or replacement shall be carried out as soon as practicable and within any timeframe specified elsewhere in this Contract. The Principal may provide written direction to the Contractor of the times within which the Contractor must commence and complete the repair or replacement.

12.8 Where the Contractor elects to repair the Plant, the method of repair shall be subject to the approval of the Principal, who may require evidence that the repair will not be to the detriment of the performance of the Plant. Any such approval shall not relieve the Contractor from responsibility for compliance with the requirements of the Contract.

12.9 All costs incurred by the Contractor as a consequence of the Plant being non-conforming shall be borne by the Contractor.

12.10 If the Contractor fails to comply with the written direction in Clause 12.8 and the direction includes notification that Principal may elect to have the repair or replacement carried out by others, the Principal may have the repair or replacement carried out by others. The cost of having the repair or replacement so carried out shall be deducted from the amount owing to the Contractor.

12.11 If the Contractor fails to comply with the written direction in Clause 12.8 and the direction includes notification that Principal may elect to accept the Plant, notwithstanding that it is not in accordance with the Contract, the Principal may accept the Plant. In that event that non-conforming Plant are accepted by the Principal, the resulting decrease in the value to the Principal of the Plant and any cost incurred by the Principal as a direct result of the Plant being non-conforming shall be deducted from the amount due and payable to the Contractor.

12.12 Nothing in this Clause 12 shall prejudice any other right which the Principal may have against the Contractor arising out of the failure of the Contractor to provide Plant in accordance with the Contract.

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13. WARRANTY PERIOD

13.1 The Warranty Period in respect of each item of Plant commences at the Acceptance Date and expires with the earlier of:

(a) the expiration of the period specified in the Annexure (plus any time the item is inoperative during that period due to a Defect); and

(b) the date when the number of kilometres specified in the Annexure is reached.

13.2 The Contractor must rectify any Defect that occurs during the Warranty Period, except where the Defect is caused by:

(a) a failure by the Principal to operate, take care of, or maintain the Plant in accordance with the manufacturer’s instructions; or

(b) fair wear and tear.

13.3 The Contractor shall carry out Warranty Services during the Warranty Period. The number and extent of Warranty Services shall be in accordance with the manufacturer’s recommendations and any relevant schedules provided in the Contractor’s tender.

13.4 After each Warranty Service or repair under warranty, the Contractor shall forward copies of the repair, inspection and servicing reports to the Principal’s Representative.

13.5 Where an item of Plant is operated within 200 km of the Contractor’s nearest repair depot the Contractor shall bear the full expense of undertaking Warranty Services, inspection, reports and repairs during the Warranty Period. Where an item of Plant is operated at a location over 200 km from the Contractor’s nearest repair depot and provided that the Contractor necessarily incurs additional expense due to the location, the Contractor and the Principal's Representative shall agree on price prior to the undertaking of the Warranty Service. The Principal will not approve any payments for expenses that could have been avoided by the Contractor taking appropriate action or that are unnecessarily incurred.

13.6 The Contractor shall advise the Principal of the locations of all their repair depots for the purposes of this Clause.

13.7 Warranty Services shall be conducted at a nominated location in South Australia as agreed between the Contractor and the Principal’s Representative. The cost of these services shall be borne by the Contractor. All lubricants required shall be supplied by the Contractor.

13.8 At the time of these services the Contractor shall inspect the Plant item in regard to general performance and condition and shall arrange to instruct the operator and other persons nominated by the Principal in the proper operation, care and maintenance of the Plant item.

14. CONTRACTOR’S WARRANTIES

14.1 The Contractor warrants that:

(a) the Plant is unencumbered and the Contractor has the right to sell and transfer title to and property in the Plant to the Principal;

(b) the Plant:

(i) is new (unless otherwise specified);

(ii) conforms with the requirements of the Specification and any performance criteria specified in the Contract;

(iii) is free from defects in materials, manufacture, and workmanship;

(iv) conforms to any legally applicable standards;

(v) is of good merchantable quality;

(vi) is fit for the purpose stated in the Specification or elsewhere in the Contract, or if no purpose is stated, the purpose for which the Plant would ordinarily be used;

(vii)conform to the description, model number and the sample (if any) provided by the Contractor;

(viii) where this Contract so provides, has been manufactured, constructed or assembled in the factory disclosed by the Contractor as the place of manufacture, construction or assembly of the Plant in the Contractor’s tender or elsewhere in the Contract;

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(c) it will conduct itself in a manner that does not invite, directly or indirectly, the Principal’s officers, employees or agents or any public sector employee (as defined in the Public Sector Act 2009) to behave unethically, to prefer private interests over the Principal’s interests or to otherwise contravene the Code of Ethics for the South Australian Public Sector; and

(d) all representations made by the Contractor in or in connection with the Contractor’s tender were and remain accurate.

14.2 The Contractor must not vary the specification, design, shape, configuration or characteristics of the Plant without first obtaining the consent of the Principal in writing.

15. PRICES

15.1 The Prices apply to the Supply of Plant, except to the extent otherwise provided in this Contract.

15.2 Subject to clause 16, the Prices include all taxes, duties or government charges imposed or levied in Australia or overseas in connection with this Contract.

15.3 The Prices include all costs of compliance with the Contractor’s obligations under this Contract, whether foreseen or unforeseen. No other costs or expenses are payable by the Principal.

15.4 For Plant supplied on the basis of a Schedule of Rates, the Principal will pay the sum ascertained by multiplying the actual quantity of Plant provided by the rate accepted by the Principal for those Plant, adjusted by any additions or deductions made pursuant to the Contract. No amount will be paid for Rise and Fall unless provided for in the Specification.

16. GST

16.1 The Contractor represents that:

(a) it is registered under the A New Tax System (Australian Business Number) Act 1999 (Cth), and that the ABN in its tender is the Contractor’s ABN; and

(b) it is registered under the GST Law.

16.2 If the prices are expressed as being GST exclusive and the supply for which payment is claimed is a Taxable Supply then, in addition to any amount payable by the Principal by reference to the Prices (the “base consideration”), the Principal must pay to the Contractor, an additional amount of consideration (“GST consideration”) for the Taxable Supply calculated by multiplying the GST Rate by the base consideration. The GST consideration is payable at the same time and subject to the same conditions as the base consideration. In this Contract, “Taxable Supply”, and “GST Rate” have the meaning attributed to it in the GST Law.

17. PAYMENT ARRANGEMENTS

17.1 Unless specified otherwise, the Contractor is entitled to invoice the Principal for payment when the Plant has been accepted.

17.2 The Principal does not have to pay a Contractor’s invoice unless the invoice is properly rendered. An invoice is properly rendered if it:

(a) is issued in respect of Plant for which the Contractor is entitled to invoice under this Contract;

(b) reflects the correct price for the Plant under this Contract;

(c) is a valid Tax Invoice within the meaning of the GST Law; and

(d) is accompanied by such information and documentation as reasonably required by the Principal to verify the invoice.

17.3 Subject to the provisions of this clause, the Principal will pay the Contractor within 30 days of receiving a valid invoice.

17.4 The Principal may withhold full or part payment for any Plant which have not been provided in accordance with the requirements specified in this Contract.

17.5 If the payment will be less than the amount specified on the invoice, the Principal will provide a payment schedule which the includes reasons for withholding payment. If the Principal disputes a claim for payment, the Principal will pay any undisputed portion of the invoice.

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18. CONFLICTS OF INTEREST

18.1 The Contractor warrants that at the date of submitting its tender, to the best of its knowledge and having made all reasonable inquiries, no conflict of interest exists in relation to this Contract or is likely to arise during the period of this Contract.

18.2 If the Contractor becomes aware that it or any of its Personnel do have or will have a Conflict of Interest, then the Contractor shall immediately inform the Principal, in writing, with full details of that Conflict of Interest.

18.3 The Contractor shall comply with all reasonable directions of the Principal requiring it to resolve or otherwise deal with any Conflict of Interest.

18.4 The provision of this Clause will operate without prejudice to any other rights which the Principal may have arising out, or in respect of, the existence of any Conflict of Interest or potential Conflict of Interest.

19. INDEMNITY

19.1 The Contractor indemnifies, and undertakes to keep indemnified, the Principal, from and against:

(a) loss of or damage to the Principal’s property; and

(b) claims in respect of personal injury or death or loss of, or damage to, any other property,

arising out of or in respect of:

(a) any negligence, wrongful act or omission by the Contractor or any of its Personnel; or

(b) any Event of Default or breach by the Contractor of any of the provisions of this Contract.

19.2 The Contractor indemnifies, and undertakes to keep indemnified, the Principal, from and against any claim that the Supply of Goods by the Contractor infringes the Intellectual Property Rights of any person.

19.3 This Clause will survive termination of this Contract.

20. INSURANCE

20.1 If specified in the Annexure, the Contractor must effect and maintain an insurance policy which will cover the Plant for its full value against loss or damage, including loss or damage in transit and during unloading. This insurance shall be maintained until risk in the Plant passes to the Principal.

20.2 The Contractor must effect and maintain a Public Liability policy of insurance covering the Contractor in respect of any claim arising from, or related to, the supply of the Plant for not less than the amounts stated in the Annexure.

20.3 The insurance policies must be with insurers satisfactory to the Principal.

20.4 The policies must be in the name of the Contractor and must cover the Contractor and all subcontractors for their respective rights, interests and liabilities.

20.5 Before supplying Plant under this Contract, the Contractor must provide the Principal with insurance certificates of currency for the insurances required under this Clause. The Principal may require the Contractor to provide proof that the policies of insurance have been maintained.

20.6 The Principal, in specifying levels of insurance in this Contract accepts no liability for the completeness of their listing, the adequacy of the sum insured, limit of liability, scope of coverage, conditions or exclusions of those insurances in respect to how they may or may not respond to any loss, damage or liability.

20.7 The Contractor acknowledges and agrees that it is the Contractor’s responsibility to assess and consider the risks and scope of insurances required under this Contract.

21. CONFIDENTIAL INFORMATION

21.1 Subject to this Contract, the party (“receiving party”) to whom Confidential Information is disclosed by another party (“disclosing party”) must not disclose Confidential Information to any person without first obtaining the disclosing party’s written consent.

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21.2 There will be no breach of the obligations of the receiving party under this Contract if the Confidential Information is legally required to be disclosed or the circumstances of its disclosure are permitted by this Contract.

21.3 The receiving party may disclose Confidential Information to its officers, Personnel, sub-contractors and agents (“Authorised Persons”) if:

(a) the Authorised Person needs to know the Confidential Information for the performance of their duties under this Contract or for the installation, operation, maintenance, repair or alteration of the Plant;

(b) the receiving party first notifies the proposed disclosure to the disclosing party; and

(c) the receiving party first makes the Authorised Person aware of the confidential nature of the Confidential Information and requires the employee to treat it confidentially.

21.4 Despite anything else in this Contract, it is a condition to any permitted disclosure that the receiving party must notify the disclosing party promptly if the receiving party becomes aware of any unauthorised disclosure by a third party. The receiving party must give the disclosing party all assistance reasonably required by that party in connection with any proceedings which it may institute against any persons for the disclosure.

21.5 The receiving party indemnifies the disclosing party against any loss or damage which the disclosing party may suffer or for which the disclosing party may become liable as a result of:

(a) any disclosure or use of Confidential Information in breach of this Contract by the receiving party; or

(b) any unauthorised disclosure or use by an Authorised Person of Confidential Information.

21.6 The Contractor acknowledges that the Principal may disclose Confidential Information:

(a) to Parliament, the Governor, Cabinet or a Parliamentary or Cabinet committee or subcommittee;

(b) where required by law to do so;

(c) to any agency, authority, instrumentality, minister or officer of the Crown to whom it is customary for the Principal to disclose information such as the Confidential Information (whether or not the Principal is legally obliged to do so);

(d) to the Australian Competition and Consumer Commission (ACCC) if the Principal reasonably suspects, or is notified by the ACCC that it reasonably suspects, that there is cartel conduct or unlawful collusion in connection with the supply of Goods or Services under this Contract; or

(e) for the purposes of prosecuting or defending any legal proceedings.

22. DISCLOSURE OF CONTRACT

The Principal may disclose this Contract or information in relation to this Contract in either printed or electronic form and either generally to the public or to a particular person as a result of a specific request. The Contractor agrees to disclosure of this Contract in accordance with Department of Premier and Cabinet Circular 27 (PCO27)."Disclosure of Government Contracts", available from:http://www.premcab.sa.gov.au/dpc/publications_circulars.html. The Contractor’s attention is drawn to the Freedom of Information Act 1991. No exemption from the provisions of this Act applies to this Contract.

23. FORCE MAJEURE

23.1 Force Majeure means an event or circumstance which prevents a party from complying with any of its obligations under this Contract and which that party:

(a) did not cause;

(b) cannot control or influence; and

(c) cannot prevent or avoid through prudent management processes, policies and precautions, including the use of alternative resources, the procuring of services from another source and work around plans.

23.2 It includes without limitation, fire, flood, drought, storm, lightning, act of God, peril of sea or air, explosion, sabotage, accident, embargo, civil commotion, act of war and war; but does not include industrial disputes, strikes and difficulties between the Contractor and its Personnel or sub-contractors.

23.3 The affected party must notify the other party if the Force Majeure is preventing it from complying with any of its obligations as soon as it becomes aware of the Force Majeure.

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http://www.premcab.sa.gov.au/dpc/publications_circulars.html


23.4 The affected party’s rights and obligations will be suspended to the extent and for so long as the performance of the affected party’s rights and obligations are prevented or delayed by the Force Majeure.

23.5 The affected party must keep the other party informed of the continuation and expected duration of the Force Majeure and of measures taken to comply with this Clause.

23.6 The affected party must recommence performance of its obligation as soon as possible without delay after the Force Majeure has ceased to exist.

24. REMEDIES

24.1 Any claim the Principal may have against the Contractor may be set off against monies owed to the Contractor under this Contract.

24.2 The rights and remedies provided under the Contract are cumulative and not exclusive of any remedies provided by law or any other right or remedy.

25. TERMINATION

25.1 The Principal shall be entitled to terminate this Contract upon 14 calendar days written notice in the event that an Event of Default occurs.

25.2 Subject to clause 12, the Principal may terminate this Agreement if the Contractor fails to supply Complying Plant, and may recover from the Contractor the amount of all direct damage and loss suffered by the Principal resulting from such failure.

26. EFFECT OF EXPIRY OR TERMINATION OF THIS CONTRACT

26.1 If the Principal terminates this Contract, the Principal must pay the Contractor for Plant (if any) that have been ordered and supplied by the Contractor up to the date of termination or the Completion Date.

26.2 The Contractor has no obligation to respond to an order for any Plant under this Contract after the Principal has issued a notice of termination.

26.3 Any termination of this Contract by the Principal is without prejudice to any rights, remedies or actions that the Principal may have against the Contractor that may have arisen prior to the date of termination.

27. COMPLIANCE WITH LAWS AND POLICIES

27.1 The Contractor must comply with the requirement of all Laws.

27.2 The Contractor undertakes to comply with all South Australian Government policies that are specified in the Specification and which relate to the performance of the Contractor’s obligations under this Contract.

27.3 The parties submit themselves to the exclusive jurisdiction of the Courts having jurisdiction in South Australia.

27.4 Any proceedings brought in a Federal Court must be instituted in the Adelaide registry of that court.

27.5 The parties undertake not to apply to transfer any proceedings to a registry of the Federal Court located in another State or Territory, or to the courts of another State or Territory.

28. RESOLUTION OF DISPUTES

28.1 Either party may, in a case of genuine urgency, seek immediate interlocutory relief or an interim remedy.

28.2 Subject to clause 28.1, neither party may commence legal proceedings without attempting to resolve the dispute as follows:

(a) Each party must submit the dispute to one of its senior officers who has not previously been involved in the dispute (“Negotiators”) within 7 days of the dispute arising.

(b) The Negotiators must meet as soon as possible to resolve the dispute.

(c) If the Negotiators cannot resolve the dispute within 14 days of its reference to them, each Negotiator must prepare a written summary of his or her attempts to resolve the dispute and immediately refer that summary to a senior executive of each party (“the Executive Negotiators”).

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28.3 The Executive Negotiators must meet as soon as possible to resolve the dispute, but in any case within 7 days of its reference to them. Each party must authorise and inform its Executive Negotiator sufficiently so that he or she can undertake that meeting without detailed reference to another person.

28.4 Notwithstanding the existence of a dispute each party must continue to perform its obligations under this Contract.

28.5 This clause survives any expiry or termination of this Contract.

29. PUBLICITY

The Contractor must not make any public announcement or media release in respect of any aspect of this Contract.

30. SUB-CONTRACTING

30.1 The Contractor must not engage any sub-contractor for the Supply of Plant without approval of the Principal, which shall not be unreasonably withheld.

30.2 The Contractor must apply to the Principal in writing for approval to appoint a sub-contractor and the application must include details of the name of the proposed sub-contractor and the tasks that the Contractor proposes that it performs.

30.3 The Principal may request other information about the proposed sub-contractor.

30.4 If the Principal grants its approval then the approval may be given on such conditions as the Principal reasonably considers appropriate.

30.5 The Principal shall have the right during the Term to revoke its prior approval of a subcontractor if:

(a) the subcontractor’s performance is deficient;

(b) there have been material misrepresentations made to the Principal by or concerning the subcontractor.

30.6 The Contractor shall remain responsible for obligations performed by subcontractors to the same extent as if such obligations were performed by the Contractor.

31. ENTIRE AGREEMENT

This Contract:

(a) incorporates the annexure and any attached schedules;

(b) contains the entire agreement between the parties with respect to its subject matter; and

(c) supersedes any prior agreement, understanding or representation of the parties on the subject matter.

32. MODIFICATION OF CONTRACT

This Contract may be amended or modified by the parties, but changes will not be binding upon the parties unless they are in writing and signed by each party or its representative authorised for that purpose.

33. WAIVER

A party’s:

(a) failure to exercise, or delay in exercising, a power or right does not operate as a waiver of that power or right;

(b) waiver or exercise of a power or right does not preclude its future exercise or the exercise of any other power or right; and

(c) waiver of any power or right will not be effective unless it is in writing and signed by the Representative of the party waiving its rights.

34. SEVERANCE

34.1 Each word, phrase, sentence, paragraph and Clause of this Contract is severable

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34.2 If a court determines that a part of this Contract is unenforceable, invalid, illegal or void that court may sever that part.

34.3 Severance of any part of this Contract will not affect any other part of this Contract.

35. READING DOWN

Where a word, phrase, sentence, paragraph or other Clause or provision of this Contract would otherwise be unenforceable, illegal or void the effect of that provision shall so far as possible, be limited and read down so that it is not unenforceable, illegal or void.

36. COSTS

Except as otherwise provided by this Contract, each party is responsible for its own costs and risks in relation to the negotiation and preparation of this Contract and all things to be done under this Contract.

37. NOTICES

37.1 Any notice or purchase order relating to this Contract must be:

(a) in writing;

(b) signed by the Representative of the sender; and

(c) given to the other party:

(i) by hand delivery;

(ii) by prepaid mail; or

(iii) by facsimile or email transmission.

37.2 For the purposes of delivery of notices:

(a) mail must be sent to the address of the recipient party set out in this Contract; and

(b) facsimile or email messages must be marked for the attention of the person specified in this Contract.

37.3 If email is used to transmit the notice or purchase order, it must be scanned into a non-editable file format and attached to the email;

37.4 If a Party changes its contact details, then it must provide written notice to the other party within five Business Days.

37.5 A notice sent for the purposes of this Clause will be considered received:

(a) if delivered before 5.00 pm on a Business Day, otherwise on the next Business Day;

(b) if sent by pre-paid mail, on the third Business Day after posting; or

(c) if transmitted by facsimile before 5.00 pm on a Business Day and a complete transmission report is received on the day of transmission, otherwise on the next Business Day, provided that:

(i) if the recipient receives by facsimile transmission a notice that is illegible, the recipient must notify the sender immediately and the sender must continue to retransmit the notice until the recipient confirms that it has received a legible notice; and

(ii) if transmitted by email before 5.00 pm on a Business Day and the Sender receives a message-opened response, otherwise on the next Business Day, subject always to the Sender receiving a message-opened response.

38. NO ASSIGNMENT

The Contractor must not assign, encumber or otherwise transfer any of its rights or obligations under this Contract without the prior written consent of the Principal.

39. VARIATIONS

39.1 The Supply of Plant may be varied in accordance with this Clause.

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39.2 The Principal may propose varying the Supply of Plant by notice in writing to the Contractor setting out the proposed variation.

39.3 If the proposed variation would increase the scope of this Contract the Contractor may:

(a) notify the Principal that the proposed variation will cause the scope of this Contract to increase;

(b) provide to the Principal a written quotation indicating the additional cost of providing the Plant should the proposed variation be implemented;

(c) indicate the amount of additional time (if any) which will be required to provide the Plant if varied; and

(d) the Contractor shall not provide any additional Plant, until the Contractor has received a written notice from the Principal accepting the quotation and altering the time in which the Plant, as varied, are to be supplied.

39.4 If the proposed variation would decrease the scope of the Contract, the Principal shall give written notice to the Contractor indicating:

(a) how the scope of this Contract is decreased;

(b) how the price will be adjusted; and

(c) how the date or time for delivery will be adjusted.

39.5 The Plant, as varied under this Clause, shall be supplied in accordance with the terms and conditions of this Contract.

39.6 If the Contractor proposes to provide Plant which the Contractor considers to be a variation and the matter has not been brought to the attention of the Principal, the Contractor shall inform the Principal as soon as practicable. The Principal shall not be liable for payment for any additional Plant supplied or work undertaken by the Contractor if the Principal has not been notified of the Contractor’s intent for the additional Plant or work undertaken to be classified as a variation.

40. RELATIONSHIP

40.1 Nothing in this Contract constitutes any relationship of employer and employee or partnership between the parties.

40.2 No party has any authority to bind the other party in any manner without the prior consent of the other party.

41. WORK HEALTH AND SAFETY

41.1 The Principal is committed to the provision of a safe working environment and expects the Contractor to demonstrate the same commitment to Work Health and Safety (‘WHS”). The Contractor must:

(a) comply with the Work Health and Safety Act 2012 (SA) and the Work Health and Safety Regulations 2012 (SA);

(b) comply with any reasonable instruction issued by the Principal in relation to WHS;

(c) if requested by the Principal, provide evidence satisfactory to the Principal of its capacity to comply with the Work Health and Safety Act (including the provision of any documentation required by the Work Health and Safety Act which is relevant to this Contract); and

(d) provide the Contractor’s Workcover Registration Number.

41.2 The Contractor must permit the Principal to carry out any inspections which are reasonably necessary to verify that the Contractor is complying with the Work Health and Safety Act.

41.3 If all or part of the work under this Contract is to be provided on a site controlled by the Principal or under the direction of the Principal, the Contractor must comply with the Principal’s WHS policies, procedures and instructions. If the Contractor becomes aware of any potentially hazardous situation on the premises of the Principal, the Contractor must immediately bring it to the Principal’s attention for a direction regarding the matter.

42. ENVIRONMENTAL CONSIDERATIONS

The Contractor must not cause any harm, damage or nuisance to the environment when providing the Plant.

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43. TRAINING

43.1 The Contractor shall ensure that each item of Plant supplied under this Contract is accompanied by a suitable Training Plan which will enable the Principal’s staff to become proficient in the use of the Plant.

43.2 The Contractor shall, at no extra cost to the Principal, provide comprehensive operation and maintenance training for operational staff to be proficient in the usage of the Plant and attachments in accordance with the Training Plan submitted.

.

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Revision 0 GCC: Supply of PlantAnnexure

ANNEXURE TO THE CONTRACT

The Principal: (Clause 2) Commissioner of Highways

The address of the Principal: (Clause 2) Roma Mitchell House136 North TerraceADELAIDE SA 5000

The Principal’s Representative: (Clause 5) Manager,Fleet Management and Mechanical Services,Department of Planning, Transport and infrastructure.

The address of the Principal’s Representative:(Clause 5)

1 Wright RoadWALKLEY HEIGHTS SA 5098

Delivery Point: (Clause 8) X

Date for Delivery: (Clause 8) X

The number of sets of keys to be supplied at time of delivery with each item of Plant: (Clause 8)

X Number

The number and type of Manuals to be supplied at time of delivery with each item of Plant: (Clause 9)

Operator’s Manual X Number

The number and type of Manuals to be supplied to the Principal’s Representative: (Clause 9)

Operator’s Manual X Number

Parts Manual X Number

Service Manual X Number

Electronic Format X Number

Warranty Period: (Clause 13) As nominated by the Contractor in the Schedule.

or

36 months and X km

Insurance for loss or damage to the Plant (Clause 20) Required / not Required

Amount of Public Liability Insurances: (Clause 20) $10,000,000

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