Terms and Conditions

Standard Terms and Conditions – Fixed Price

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1. General

1.1 These Standard Terms and Conditions ('Conditions') referred to in the Order apply to the contract entered into by the University of Canberra ('UC') with You for purchase of the Supplies.

1.2 These Conditions apply to the exclusion of any terms or conditions appearing on any document of yours, other than any additional UC right or any warranty offered by You which is not inconsistent with these Conditions.

1.3 The Order will only override these Conditions if the Order specifies the particular clauses of these Conditions which do not apply. Otherwise, if there is any inconsistency between the Order and these Conditions, these Conditions prevail to the extent of the inconsistency.

1.4 If there is any inconsistency between documents constituting the Order, a later document will prevail over an earlier document to the extent of any inconsistency.

1.5 No variation to the contract is binding unless it is in writing and signed by the parties.

1.6 In these Conditions, unless the context otherwise requires:

Goods means the articles, goods, material referred to in the Order;

GST and GST law have the meanings given by section 195-1 of the A New Tax System (Goods and Services Tax) Act 1999 (Cth);

Harmful Code means any virus, disabling or malicious device or code, worm, Trojan, time bomb or other harmful or destructive code, but does not include any software lock or other technical mechanism that is included to manage the proper use of any software;

Intellectual Property includes all intellectual property rights including copyright, patents, trademarks, designs, trade secrets, know-how, moral rights, any application for any of the foregoing and any rights of a similar nature to any of the foregoing;

Order means the documents exchanged between the parties before the date of the contract detailing the goods and/or services being purchased under the contract (eg: a notice of acceptance of bid, an official purchase order or letter) and includes any documents attached to, or incorporated by reference in, those documents and any amendments to the Order specifically agreed in writing by UC and You;

Specifications means any specifications, descriptions or statements of requirements of UC in respect of the Supplies, whether part of, attached to, or incorporated by reference in, the Order, or otherwise made known to You;

Services means the services (if any) referred to in the Order;

Supplies means the Goods and Services; and

Total Price means the price for the Supplies set out in the Order.

You means the other party to the contract with UC, including that person's successors and permitted assignees and where 'You' is made up of more than one person, those persons jointly and severally;

1.7 Unless the context otherwise requires: words importing the singular include the plural and vice versa; reference to a person includes a body corporate and a natural person, and headings are for guidance only.

2. Performance and delivery

2.1 You must deliver all Goods and perform all Services, including providing any deliverables specified in the Order, at the time and place and in the manner specified in the Order and, if no time is specified, as soon as practicable and in any event within a reasonable time.

2.2 You must ensure the Goods are packed to ensure their safe delivery and in accordance with any specific packing, marking or labelling required by UC.

3. Quality and compliance

3.1 You must:

(a) supply the Goods and perform the Services in accordance with all applicable laws, any requirements of relevant authorities, and any UC policy notified by UC;

(b) perform the Services at a high standard with all due skill, care and diligence;

(d) ensure all Goods are new, free from encumbrance, free from defects in materials and workmanship, are of merchantable quality and are fit for their purpose; and

(e) ensure all Services are free from defects in performance, meet their purpose, and are complete.

3.2 You represent and warrant that the Supplies will not introduce any Harmful Code into UC's systems, and that You will not, nor will You suffer or permit any third party under your direction or control to, introduce into UC's systems or any Supplies any Harmful Code in the course of providing the Supplies. If any Harmful Code is introduced, You must promptly notify UC, take all necessary action to eliminate the Harmful Code and, at your own cost, repair any harm or destruction caused by that Harmful Code.

4. Inspection/acceptance

4.1 Despite clause 5, receipt of Supplies by UC will not under any circumstances be deemed to be acceptance of those Supplies by UC.

4.2 UC may inspect the Goods at any time prior to acceptance and reject any Goods found not to be in accordance with the contract. After acceptance UC may reject any Goods for any non-conformity with the contract which could not have been discovered by reasonable inspection before acceptance.

4.3 UC is not liable to pay for any rejected Goods or for any damage or costs arising from inspection or rejection of Goods.

4.4 Without prejudice to any other right or remedy of UC, if UC rejects any Goods, us must comply with a requirement of UC to, within 7 days (or such other timeframe agreed between us):

(a) replace, without cost to UC, the rejected Goods with goods that are in all respects in accordance with the contract;

(b) refund any payment for the rejected Goods; or

4.5 If UC requires You to submit samples of Goods, You must not proceed to bulk manufacture until UC has approved the samples.

4.6 UC may inspect the performance and outcome of the Services at any time. If the Services have not been performed in accordance with the contract, UC may by notice require You to take all necessary steps to ensure that the Services are promptly corrected at no additional cost to UC.

4.7 If You fail to correct the Services within 14 days after notification by UC under clause 4.6, UC may perform or have performed the necessary work and recover the cost from You without prejudice to any other rights or remedies UC may have.

5. Passing of property

5.1 Property in, and risk of loss of or damage to, the Goods passes to UC on delivery.

6. Warranty

6.1 Without limiting any other right or remedy of UC, if UC gives notice of any defect or omission discovered in Supplies during any warranty period offered by You (which will be deemed to be the longer of the warranty You offer UC and the warranty offered to You by a third party manufacturer) , You must correct that defect or omission without delay and at no cost to UC.

6.2 You must meet all costs of, and incidental to, the discharge of warranty obligations, including any packing, freight, disassembly and reassembly costs.

6.3 You must ensure UC receives all standard manufacturer and other relevant third party warranties in respect of the Supplies.

7. Inclusive price

7.1 Unless otherwise specified in the Order, the Total Price includes:

(a) GST and all taxes, duties and other imposts in connection with the performance of the contract;

(b) all amounts payable for the use (whether in the course of manufacture or use of the Goods or the performance or enjoyment of the Services or the use of the outcomes of the Services) of any Intellectual Property; and

(c) all charges for supply of the Goods or the performance of the Services, and no extra charges will be made for testing, inspection, packing, delivery, insurance or otherwise.

7.2 If and to the extent that, for any reason, a supply made under the contract is not subject to GST, the amount payable or other consideration to be provided for that supply shall be reduced by 1/11th.

8. Intellectual Property

8.1 Upon its creation all Intellectual Property in material created by You for the purpose of, or as a result of, performing your obligations under the contract (Contract Material) vests in UC. You must not use, disclose, copy or reproduce such Intellectual Property except for the purposes of the contract.

8.2 To the extent that UC needs to use:

(a) any material owned before the commencement of the contract by You;

(b) any material developed by You independently of performing your obligations under the contract; or

(c) any material owned by a third party that is included or embodied in or attached to the Contract Material or used as part of the performance of the contract, to receive the full benefit of the Supplies, You grant to (or must obtain for) UC a perpetual, world-wide, royalty free, non-exclusive licence (including the right to sublicense) to use, reproduce, adapt, modify and communicate that material.

8.3 You warrant that it has the necessary rights to vest the Intellectual Property and grant the licences as provided in this clause 8.

8.4 You warrant that the Supplies and the material referred to in clauses 8.1 and 8.2 (Warranted Material) and UC's use of the Supplies and Warranted Material will not infringe the Intellectual Property of any person.

8.5 If someone claims, or UC reasonably believes that someone is likely to claim, that all or part of the Supplies or Warranted Material infringes its Intellectual Property, You must, in addition to the indemnity under clause 8.6 and to any other rights that UC may have against it, promptly, at your expense:

(a) use your best efforts to secure the rights for UC to continue to use the affected Supplies or Warranted Material free of any claim or liability for infringement; or

(b) replace or modify the affected Supplies or Warranted Material so that the Supplies or Warranted Material or the use of them does not infringe the Intellectual Property of any other person without any degradation of the performance or quality of the Supplies or Warranted Material.

8.6 You indemnify UC against any loss, liability and expense arising out of, or as a consequence of, the infringement or alleged infringement of any Intellectual Property by reason of the purchase, possession or use of the Supplies or Warranted Material.

9. Assignment and subcontracting

9.1 You must:

(a) not, without the consent in writing of UC, assign or subcontract the whole or any part of the performance of the contract;

(b) on request, provide UC with the names and other requested details of any of your subcontractors. agrees, and must ensure that any subcontractor agree, that UC may disclose the subcontractor's name publicly; and

(c) ensure that any subcontractor (including any subcontractor of a subcontractor) complies with all applicable laws and clause 14.

9.2 You will be liable to UC for the acts and omissions of any subcontractor as if they were your acts and omissions.

10. Personnel

10.1 If the Order indicates that particular Supplier personnel are to be involved in performance of the contract, You must perform the contract using those personnel and must not change those personnel without prior written approval from UC.

10.2 UC may at any time request You to remove any of your personnel from work in respect of the contract. You must promptly arrange for the removal and replacement of such personnel.

11. Payment

11.1 Subject to the satisfactory performance of the contract by You, UC must pay the Total Price in accordance with the terms of payment (if any) specified in the Order and within 30 days after receipt of a correctly rendered invoice.

11.2 An invoice will be correctly rendered if it:

(a) contains your name, address and ABN;

(b) contains pre-GST amounts, the amount of GST applied and the Total Price payable by UC;

(d) contains an itemised list of the goods and/or services supplied and the price of each item;

(e) contains itemised details of any other fees and expenses properly payable by the University;

(f) complies with the requirements of the GST law;

(g) is accompanied by reasonable documentation substantiating the amount claimed; and

(h) is provided to UC by email to accounts.payable.support@canberra.edu.au.

11.3 UC is not required to pay You unless it receives a tax invoice for the Supplies to which the payment relates.

12. Termination for default

12.1 Without limiting any other rights or remedies UC may have against You arising out of or in connection with the contract, UC may terminate the contract effective immediately by giving notice to You if:

(a) You breach a material provision of the contract where that breach is not capable of remedy;

(b) You breach any provision of the contract and fail to remedy the breach within 14 days after receiving notice requiring You to do so; or

12.2 You must notify UC immediately if You cease to be able to pay your debts as they become due, enter into liquidation, have a controller or managing controller or liquidator or administrator appointed, or are declared bankrupt or assigns your estate for the benefit of creditors or any analogous event occurs.

13. Termination for convenience

13.1 UC may, at any time, by notice, terminate the contract.

13.2 If the contract is terminated under clause 13.1, UC is liable only for:

(a) payments under clause 11 for Supplies provided in accordance with the contract before the effective date of termination; and

(b) reasonable costs actually incurred by You and directly attributable to the termination.

13.3 UC is not liable to pay compensation under clause 13.2 for an amount which would, in addition to any amounts paid or due, or becoming due, to You under the contract, exceed the Total Price.

13.4 You are not entitled to compensation for loss of prospective profits.

13.5 Termination of the contract under clause 12 or 13 does not affect any accrued rights or remedies of a party.

14. Protection of property and information

14.1 You must ensure that any material and UC property (including security-related devices and clearances) provided by UC for the purposes of the contract are protected at all times from unauthorised access, use by a third party, misuse, damage and destruction.

14.2 You must not disclose, and must ensure your officers, employers, agents and subcontractors do not disclose, confidential information of UC. This clause 14.2 does not apply to information which is part, or becomes part, of the public domain otherwise than by breach of the contract or which is required by law to be disclosed.

14.3 In relation to personal information obtained during the course of providing the Supplies, You must:

(a) use or disclose personal information only for the purposes of the contract; and

(b) immediately notify UC if You becomes aware of a breach or possible breach of any of your obligations under this clause 14.

14.4 You must obtain UC's written agreement before making a public announcement in connection with the contract or any transaction contemplated by it, except if required by law or a regulatory body (including a relevant stock exchange).

14.5 If requested by UC, You must provide, and must ensure that any personnel or subcontractor (including any subcontractor of a subcontractor) provides, UC with a written undertaking in the form of a deed relating to the use and non-disclosure of personal information and UC confidential information.

15. Use of UC premises and facilities

15.1 You must, when using UC's premises or facilities, comply with all reasonable directions of UC relating to occupational health, safety and security in effect at those premises or in regard to those facilities, as notified by UC or as might reasonably be inferred from the circumstances.

16. Insurance

16.1 You must have and maintain insurance cover which is usual and appropriate for the type of business engaged in by You and the provision of the Supplies, including, as applicable, product liability insurance, public liability and professional indemnity insurance. You must provide evidence of insurance upon request by UC.

17. International sale of goods

17.1 The United Nations Convention on Contracts for the International Sale of Goods does not apply to the contract.

18. University of Canberra's representative

18.1 The person named in the Order is UC's representative, but is not entitled to amend or modify the contract between the parties.

18.2 UC may alter its representative at any time by sending You a notice.

19. Address of Supplier

19.1 If the Supplier has provided an e mail or facsimile address to UC, then UC is entitled to deliver information, documents or notices to that address or any other non – electronic address.

20. Waiver

20.1 Waiver of any provision of or right under the contract must be in writing signed by the party entitled to the benefit of that provision or right, and is effective only to the extent set out in the written waiver.

21. Negation of employment, partnership and agency

21.1 The contract does not create a relationship of employment, agency or partnership between You and UC.

22. Applicable law

22.1 The contract will be governed by, and construed in accordance with, the law in force in the Australian Capital Territory.

23. Entire agreement

23.1 The contract constitutes the entire agreement between the parties in connection with its subject matter.

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