1. The Agreement
The Agreement will be formed between Gold Coast 2018 Commonwealth Games Corporation (GOLDOC) and Supplier on the terms of these Purchase Order Conditions when the Supplier either accepts the Purchase Order, provides the goods (Goods) or services (Services) set out in a Purchase Order or a Purchase Order is issued by GOLDOC in relation to a Supply Request (whichever is the earlier). The Agreement continues until the Goods are delivered or the Services are performed, or the due date specified in the Purchase Order (if applicable) (whichever is the later) unless terminated earlier in accordance with this Agreement.
2. Supplier to provide Goods and/or Services
GOLDOC appoints the Supplier to supply the Goods and/or Services. The Supplier accepts the appointment. The Supplier must provide the Goods and/or Services in accordance with this Agreement and GOLDOC’s delivery instructions including within the timeframes specified in the Purchase Order or as otherwise agreed.
The Supplier will promptly notify GOLDOC if it believes it will not be able to meet any delivery date or other timeframes specified in the Purchase Order. If the Supplier cannot meet the timeframes specified in the Purchase Order, then GOLDOC may terminate the Agreement at no cost to GOLDOC.
3. Right to cancel Purchase Order before delivery for convenience
GOLDOC has the right to cancel the Purchase Order and terminate this Agreement at any time prior to delivery of the Goods or completion of the Services, by written notice to the Supplier. The Supplier will promptly notify GOLDOC if it will incur expenses as a consequence of the cancellation, including the estimated amount. If GOLDOC proceeds to cancel the Purchase Order, GOLDOC will reimburse the Supplier for its reasonable out of pocket expenses reasonably incurred as a direct consequence of the cancellation. The Supplier must take all reasonable steps to minimise the expenses associated with cancellation.
a) The Supplier must ensure that the Goods satisfy the description in the Agreement or the Purchase Order, are of a high quality, and fit for their usual purpose and any other purpose disclosed by GOLDOC before the Agreement is formed.
b) The Supplier must ensure the highest quality of work, and provide the Services in a proper, timely and efficient manner using the standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services that are similar to the Services;
c) If the Supplier enters any Site to deliver the Goods or provide the Services, the Supplier must comply with GOLDOC policies, codes of conduct, rules, standards and procedures, and workplace health and safety policies (GOLDOC Policies), relevant to the Site. The Supplier will otherwise comply with any other GOLDOC Policies where requested by GOLDOC and where GOLDOC reasonably believes it is necessary for the staging of GC2018. GOLDOC will make copies available on request.
d) The Supplier must comply with all reasonable directions of GOLDOC in relation to the Supplier’s performance of the Agreement.
e) The Supplier must comply with all Laws necessary for the Supplier to perform the Agreement (and provide evidence of compliance if GOLDOC asks), and ensure that use of the Goods by GOLDOC as contemplated in the Agreement will comply with all Laws.
f) Unless otherwise specified in the Purchase Order, the Supplier must maintain public liability and products insurance for a minimum amount of $20 million per claim and workers’ compensation insurance (if required by law), and any other insurance specified in writing by GOLDOC.
g) The Supplier must not use or disclose or otherwise make available any Confidential Information to any person except to its Personnel on a need to know basis to perform the Agreement.
h) If the Supplier collects or has access to any Personal Information in order to perform the Agreement, the Supplier must, when performing this Agreement:
i) if GOLDOC is an ‘agency’ for the Information Privacy Act 2009 (Qld), other than for Chapter 3 of the Information Privacy Act 2009 (Qld) – comply with those parts of Chapter 2 of the Information Privacy Act 2009 (Qld) which are applicable to GOLDOC, as if the Supplier were GOLDOC; or
ii) otherwise – comply with the Australian Privacy Principles in the Privacy Act 1988 (Cth).
i) The Supplier is fully responsible for its Personnel, including for ensuring Personnel comply with the terms of this Agreement. The Supplier is not, and Supplier Personnel are not, employees of GOLDOC.
j) If GOLDOC reasonably requests, the Supplier will promptly remove from GOLDOC premises and/or the performance of this Agreement, any Personnel used in performance of the Agreement, and replace them with other Personnel acceptable to GOLDOC, at no additional cost to GOLDOC.
k) The Supplier must not subcontract any part of its obligations under this Agreement unless agreed to by GOLDOC in writing.
l) The Supplier must take care of any resources that GOLDOC provides or makes available to the Supplier in relation to this Agreement and only use those resources for the purpose of performing the Agreement, to the extent necessary to perform the Agreement and as otherwise advised by GOLDOC.
m) The Supplier must ensure that the sustainability practices it has in place at the start date of this Agreement are maintained or enhanced during the term of this Agreement. The Supplier must also comply with the Sustainability Requirements. When reasonably requested by GOLDOC the Supplier agrees to provide GOLDOC with details and information about its sustainability practices and permits GOLDOC to disclose such information if such disclosure will assist GOLDOC to implement and promote sustainable business practices and it would not be disadvantageous for the Supplier to have such information disclosed.
n) The Supplier must comply with the Technology Security Guidelines.
o) Wherever possible, practicable and financially viable the Supplier will use local suppliers in carrying out activities in connection with this Agreement.
5. Conflict of Interest and criminal organisations
5.1. Conflict of Interest
The Supplier warrants that it and its Personnel do not hold any office or possess any property, are not engaged in any business or activity and do not have any obligations where a conflict of interest is created, or might appear to be created, in conflict with its obligations under this Agreement, except as disclosed in writing to GOLDOC. For the purposes of this clause a conflict of interest includes any actual, reasonably anticipated or perceived conflict of interest, whether personal, financial, professional or otherwise.
5.2. Criminal organisation
The Supplier warrants that neither it nor its Personnel:
a) have been convicted of an offence under the Criminal Code where one of the elements of the offence is that the person is a participant in a criminal organisation within the meaning of section 60A(3) of the Criminal Code; or
b) are subject to an order under, or have been convicted of an offence under the Criminal Organisation Act 2009 (Qld).
5.3. Warranties are ongoing
The warranties in this clause are provided as at the date of the Agreement and on an ongoing basis. The Supplier warrants that it will immediately notify GOLDOC if it becomes aware that any warranty made in this clause was inaccurate, incomplete, out-of-date or misleading in any way when made, or becomes inaccurate, incomplete, out-of-date or misleading in any way.
In addition to any other remedies available to it under Law or contract, GOLDOC may, in its absolute discretion, immediately terminate the Agreement if it believes the Supplier has breached any warranties in this clause.
6. Invoicing, Price and payment
a) The Supplier may invoice GOLDOC after delivery of Goods or Services that comply with this Agreement.
b) The Supplier must include adequate information for GOLDOC to verify that the invoice is accurate, and will provide supporting documentation reasonably requested by GOLDOC. GOLDOC is not required to pay any invoice that does not comply with this clause.
c) GOLDOC will pay each correctly rendered tax invoice within 30 days of receipt.
d) GOLDOC may withhold payment of any amount which it disputes in good faith, until the dispute is resolved and it is determined that the amount is payable.
e) The Price is inclusive of all charges, expenses and overheads, and all taxes and duties, except for GST. GOLDOC will not reimburse any travel, accommodation or any other expenses unless otherwise agreed in writing prior to the expense being incurred.
f) GOLDOC may set off any amounts or values due and payable by the Supplier to GOLDOC against amounts payable to the Supplier by GOLDOC.
a) Unless expressly stated otherwise, all amounts payable under this Agreement are GST exclusive.
b) Where GST is imposed on a supply under the Agreement, the recipient of the supply shall pay to the supplier an amount equal to the GST (if any) payable on the taxable supply, at the same time that it is required to make the payment for the taxable supply, provided that it receives a valid tax invoice at or before the time of payment. Terms in this clause have the same meanings as in the GST Law.
The maximum liability of GOLDOC to the Supplier, whether in contract, tort (including negligence) or otherwise in connection with the Agreement, is an amount equal to the total of all Prices (including additional expenses and charges) payable under the Agreement. The cap on liability does not apply to liability in relation to:
a) personal injury, including sickness, injury or death; or
b) loss of, or damage to, tangible property; or
c) Wilful Default, Wilful Misconduct, unlawful act or omission of, or failure to comply with applicable Law by the Supplier or its Personnel; or
d) any Claim by a third party relating to this Agreement, including breach of a third party’s Intellectual Property Rights.
9. Intellectual Property Rights and Moral Rights
a) The Supplier grants (and must procure that relevant third parties grant) GOLDOC an irrevocable, unconditional, perpetual, free of additional charge, non-exclusive, worldwide and transferable (including sub-licensable) licence to exercise all Intellectual Property Rights in the Goods and Services and Deliverables, for any purpose of GOLDOC or the Commonwealth Games Federation. The Supplier warrants that it is authorised to grant the rights in this clause.
b) Subject to clause 10 (“GOLDOC Data”) new Intellectual Property Rights created or developed in performing the Agreement will be owned by GOLDOC. GOLDOC grants the Supplier an irrevocable, unconditional (subject to this clause), perpetual, royalty-free, non-exclusive, worldwide, transferable and sub-licensable licence to exercise all such newly developed Intellectual Property Rights to the extent required for the Supplier to be able to meet its obligations under the Agreement.
c) The Supplier consents and must procure the irrevocable consent of its Personnel to the infringement of their Moral Rights and to not enforce any and all Moral Rights that those individuals may have, presently or in the future, arising from the exercise of rights or fulfilment of obligations under this Agreement.
10. GOLDOC Data
The ownership of GOLDOC Data, including any Intellectual Property Rights in GOLDOC Data, shall vest in GOLDOC on creation. The Supplier has no right, title or interest in GOLDOC Data except as specified in this clause. The Supplier must not use, access, modify or disclose GOLDOC Data to any person except to its Personnel on a need to know basis to perform the Agreement. The Supplier must comply with clause 4(h) and all applicable Laws in relation to GOLDOC Data which is Personal Information, and must provide reasonable assistance to GOLDOC on request to enable GOLDOC to comply with Laws, policies and standards applicable to GOLDOC in relation to GOLDOC Data including (without limitation) identifying, labelling, searching, reporting, copying, retrieving and modifying GOLDOC Data in relation to Personal Information, public records, right to information and information standards.
11. Where Requirements not met
If any Requirements for the Goods and/or Services are not met, at the request of GOLDOC the Supplier will promptly:
a) resupply the relevant Goods;
b) re-perform the relevant Services; or
c) refund GOLDOC any monies paid,
and GOLDOC may exercise any other right or remedy that it has under this Agreement or otherwise.
If the Supplier fails to comply with its obligations under this clause, GOLDOC may have the Goods and/or Services re-supplied or re-performed by others, and the Supplier shall pay to GOLDOC on demand any costs incurred by GOLDOC in doing so.
Acceptance of the Goods and/or Services by GOLDOC does not relieve the Supplier of any of its obligations under the Agreement.
12. Successful staging of GC2018
In performing this Agreement the Supplier must:
a) not interfere with or cause any material disruption to the staging of GC2018;
b) not do or omit to do any act or thing which would hinder either party’s performance of its obligations under this Agreement or would be prejudicial to the image, reputation or goodwill of either party, GC2018, a Commonwealth Games Body or a sponsor, contractor, consultant or supplier of GOLDOC;
c) not represent or promote in any way the fact that the Supplier has any connection or association with or is endorsed or approved by GOLDOC, the Commonwealth Games or GC2018, or that it has provided services to GOLDOC without GOLDOC’s prior written approval;
d) not use any intellectual property owned by or licenced to GOLDOC unless expressly provided for in this Agreement or otherwise approved in writing by GOLDOC and then only in accordance with the terms of this Agreement or GOLDOC’s written approval;
e) not make any public announcements or advertisement (including via social media) or give any assistance to any person in relation to the writing, publishing or broadcasting of any story or comment relating to the Agreement, the relationship between the parties or the affairs of GOLDOC without GOLDOC’s prior written consent.
f) where it is practicable and commercially viable to do so, use its reasonable endeavours to use Gold Coast, Queensland, Australian and New Zealand products, services and materials in exercising its rights and fulfilling its obligations under this Agreement;
g) not do or omit to do any act or thing which is likely to violate or interfere with any security measures in place for GC2018 or which might otherwise threaten the security of GC2018; or
h) ensure that any goods, services, materials, structures, plant and equipment used or supplied by or on behalf of the Supplier in the Venues during GC2018 are free of all Commercial Content unless approved in writing by GOLDOC. If it is not practicable to remove Commercial Content from such goods, services, materials, structures, plant or equipment, the Supplier must cover the Commercial Content provided it is covered in a subtle and aesthetically pleasing manner.
The parties agree that:
a) (communication) they will direct all enquiries relating to the Agreement to the other party’s nominated contact person, or to another person if the other party directs;
b) (variation) the Agreement may only be varied by written agreement of authorised representatives of the parties;
c) (entire agreement) this Agreement sets out all the parties’ rights and obligations relating to the subject matter of the Agreement, and it replaces all earlier representations, statements, agreements and understandings except for any confidentiality deed signed by the parties or as stated otherwise in this Agreement. No other terms apply;
d) (relationship) their relationship is of principal and contractor. This Agreement does not create any partnership, joint venture or employment relationship. The Supplier must not represent itself or allow anyone else to represent that the Supplier is a partner, joint venturer, officer or employee of GOLDOC;
e) (manufacturer warranties) the Supplier assigns any manufacturer’s warranty to GOLDOC, where possible to do so, and must inform GOLDOC where it is not possible to do so;
f) (delivery) the Supplier must deliver the Goods or other relevant Deliverables to the Site in accordance with GOLDOC’s instructions. If the Supplier asks, GOLDOC will confirm in writing that the Deliverables have been received;
g) (packaging) the Supplier must adequately pack and protect Goods to withstand transit and storage, and provide a packing note with the Goods;
h) (rejected Goods) if GOLDOC rejects Goods, and the Supplier does not repossess the rejected Goods within 30 days of notice of rejection, GOLDOC may sell or dispose of the Goods, at GOLDOC’s cost;
i) (risk) risk will transfer to GOLDOC when the Goods are delivered to the delivery address specified in writing by GOLDOC, in accordance with the delivery instructions.
j) (title) title in the Goods and Deliverables will transfer on the earlier of the delivery or payment of the applicable Price;
k) (no encumbrance) the Supplier warrants that the Goods are not (and when title passes, will not be) subject to any encumbrance or interest, except for an encumbrance or interest which arises by operation of a Law that cannot be excluded by contract; and
l) (right to publish) GOLDOC may publish information about the Agreement on the Government’s contract directory, where required or recommended by Government procurement policy, or as required under the Right to Information Act 2009 (Qld).
Unless it is expressly stated that a different rule of interpretation will apply:
a) (agreement) a reference to an agreement includes any variation or replacement of the agreement;
b) (Business Day) if the due date for any obligation is not a Business Day, the due date will be the next Business Day unless an accelerated timeframe has been specified as applying;
c) (consistency) where the Agreement is made up of more than one document, the Agreement must be read in a way that minimises inconsistency, ambiguity or discrepancy;
d) (contract departures) any additional conditions detailed in the Purchase Order will take precedence over all other documents;
e) (currency) all currency amounts are in Australian dollars;
f) (headings) headings are provided for convenience and do not affect the interpretation of the documents making up an Agreement;
g) (includes) “include”, “includes” and “including” must be read as if followed by the words “without limitation”;
h) (joint and several) agreements, representations and warranties made by two or more people will bind them jointly and severally;
i) (governing law) the laws of Queensland apply to this Agreement. Each party submits to the jurisdiction of the courts of Queensland;
j) (law) a reference to law includes common law and statutory laws, regulations, orders, subordinate legislation, ministerial directions, directions of relevant regulators and binding codes of conduct, and includes any consolidation, amendment, re-enactment or replacement of a law;
k) (person) a person includes the person’s executors, administrators, novatees and assignees;
l) (construction) no rule of construction will apply to a provision of a document to the disadvantage of a party merely because that party drafted the provision or would otherwise benefit from it;
m) (severability) if any part of a Agreement is invalid, unlawful or unenforceable, the invalid, unlawful or unenforceable part of the Agreement will not apply but the other parts of the Agreement will not be affected.
A notice will be deemed to be given:
a) if posted – two (2) Business Days after the date of posting;
b) if delivered by hand during a Business Day – on the date of delivery;
c) if faxed, as soon as the sender receives from the sender’s fax machine a report of an error free transmission to the correct fax number.
However, if any notice or communication is given before 31 December 2017, on a day that is not a Business Day or after 5pm on a Business Day, it is to be treated as having been given at the beginning of the next Business Day.
Agrement: means the Purchase Order, these Purchase Order Conditions and any document which the Purchase Order states will form part of the Agreement.
Business Day: means between 9.00am and 5.00pm on a day other than a Saturday, Sunday or public holiday at GOLDOC’s address.
Claim: includes any claim, action, proceeding, demand, liability, obligation, costs (including legal costs), losses, damages or expenses, including those arising out of the terms of any settlement.
Commercial Content: means any content that is used or displayed for the purpose of promoting any product, service, brand or commercial entity (or that could reasonably be considered as being used or displayed for that purpose) including but not limited to logos, branding, graphics, commercials, advertisements, promotions, watermarks and identifiers.
Commonwealth Games Body: means the Commonwealth Games Federation, Australian Commonwealth Games Association, any regional Council where GC2018 will be held, the State of Queensland, the Commonwealth and any national or international organisation which organises or controls a sport included in the GC2018 or which is responsible for sending a team to compete in the GC2018 and any GC2018 team.
Confidential Information: means all information disclosed by or on behalf of GOLDOC or the Supplier (“Discloser”) to the other party (“Recipient”) in connection with a Agreement or created using that information, which is confidential in nature and designated as confidential or which a reasonable person receiving the information would realise is sensitive or confidential, and all information to the extent it is derived from that information, and (in the case of GOLDOC) all GOLDOC Data. Confidential Information does not include any information which:
a) is or becomes public, except through breach of a confidentiality obligation;
b) the recipient can demonstrate was already in its possession or was independently developed by the recipient; or
c) the recipient receives from another person on a non-confidential basis.
Deliverables: means the Goods, Services and documentation to be provided to GOLDOC including as described in the Requirements, and all incidental and ancillary goods, services and documentation.
GC2018: means Gold Coast 2018 Commonwealth Games™.
GOLDOC Data: means any information, materials, data, datasets or databases to the extent provided by or on behalf of GOLDOC or to the extent created, processed, produced or derived by or on behalf of the Supplier using that information, materials, data, datasets or databases.
GST: has the meaning given in the GST Law and includes an amount payable under or in accordance with section 5 of the GST and Related Matters Act 2000 (Qld) or equivalent legislation.
GST Law: has the meaning given to that term in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Intellectual Property Rights: includes all copyright, trade mark, design, patents, semiconductor or circuit layout rights, plant breeders rights and other proprietary rights, and any rights to registration of such rights existing anywhere in the world, whether created before or after the date of the Agreement.
Laws: means all:
a) Acts, ordinances, regulations, by-laws, orders, awards and proclamations of the Commonwealth and the State of Queensland;
a) certificates, licences, consents, permits, approvals and requirements of organisations having jurisdiction in connection with the provision of the Deliverables;
b) the requirements of any authority with jurisdiction in respect of the Deliverables and/or the Site, as applicable; and
c) fees and charges payable in connection with the foregoing.
Moral Rights: means the right of integrity of authorship, the right of attribution of authorship and the right not to have authorship falsely attributed, more particularly as conferred by the Copyright Act 1968 (Cth), and rights of a similar nature anywhere in the world, whether existing before or after the date of the Agreement.
Personal Information: has the meaning given:
a) for the purpose of the Information Privacy Act 2009 (Qld) – in that Act; or
b) for the purposes of the Privacy Act 1988 (Cth) – in that Act.
Personnel: means officers, directors, employees, agents and subcontractors.
Price: means the price or prices described in a Agreement or calculated using a calculation method in the Purchase Order.
Purchase Order: means any purchase order from GOLDOC for the provision of Goods and/or Services which incorporates or refers to these Purchase Order Conditions.
Queensland Government Body: means any of:
a) a body corporate or an unincorporated body established or constituted for a public purpose by the State of Queensland legislation, or an instrument made under that legislation (including a local authority);
b) a body established by the State of Queensland through the Governor or a Minister; or
c) an incorporated or unincorporated body over which the State of Queensland exercises control.
Requirements: means the standards, specifications and other requirements for the Deliverables and the performance of the Supplier’s other obligations under the Agreement, which are set out in the Agreement or otherwise agreed by the parties in writing.
Service Request: means a form titled “Service Request” detailing Goods and/or Services requested by the Customer and executed by the Supplier.
Site: means the site or premises at which the Deliverables are to be provided as specified in the Purchase Order.
Supplier: is described in the Purchase Order.
Sustainability Requirements: means GOLDOC’s Sustainability Sourcing Code, any sustainability requirements the Supplier is required to comply with in this Agreement and any other sustainability practices GOLDOC reasonably requires the Supplier to comply with in exercising its rights and fulfilling its obligations under this Agreement.
Technology Security Guidelines: means the technology security guidelines provided by GOLDOC to the Supplier from time to time.
Venues: means any competition, non-competition or other venues or locations to be used in connection with GC2018 and events related to GC2018.
Wilful Default: means fraud, fraudulent concealment, dishonesty, or any illegal or malicious act or omission in relation to the Agreement by a party or its Personnel.
Wilful Misconduct: means an intentional breach of either a material provision of the Agreement or of a Law in respect of the Supplier’s obligations under the Agreement, committed with reckless disregard for the consequences and in circumstances where the Supplier knows or ought to know that those consequences would likely result from the breach, and which is not due to an honest mistake, oversight, error of judgement, accident or negligence.