Higher value, higher risk procurements will be provided under separate agreed and documented contractual terms and conditions between the supplier and Council.
1 – Definitions
In this Purchase Order the following terms and abbreviations shall, if not inconsistent with the context, have the meanings indicated below:
'Council' means the Boroondara City Council.
'GST' means a Goods and Services Tax, Value Added Tax, Consumption Tax, or tax of similar effect, whether authorised by A New Tax System (Goods and Services Tax) Act 1999 or otherwise.
'Information Privacy Principles' means the Information Privacy Principles under the Information Privacy Act 2000.
'Personal Information' means information or an opinion (including information or an opinion forming part of a database), that is recorded in any form and whether true or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.
'Purchase Order' means an order for the supply of Services issued by Council and these Purchase Order Terms.
'Supplier' means the company or person listed on the Purchase Order for the supply of Services to Council under this Purchase Order.
'Services' means the services to be provided in accordance with these Terms, the Purchase Order and any other documents listed on the Purchase Order and also includes, where applicable, the performance of works and supply of goods.
2 – General Requirement
The Supplier must provide the Services in accordance with the Purchase Order and any directions of Council pursuant to the provisions of the Purchase Order.
The Supplier must provide the Services required under the Purchase Order:
- in a diligent manner;
- with a level of care, skill, knowledge and judgement required or in accordance with the highest professional standards and best industry practice; and
- in strict accordance with the provisions of the Purchase Order.
In providing the Services, the Supplier must:
- comply with the requirements of public and all other authorities having jurisdiction by law over any matter affecting the Services, and shall pay all fees and obtain all certificates and licenses required;
- comply with all relevant Acts of Parliament, Regulations, Rules, Codes, Orders, Industry Awards and/or Agreements, By-Laws, Local Laws and other Legislation, particularly in relation to Occupational Health and Safety ('OH&S') and workers’ compensation legislation; and
- ensure that any employees engaged on the Services hold all qualifications, licences, registrations and permits required by law, and are adequately trained and are competent to carry out their duties and perform their functions in relation to the provision of the Services.
3 – Default
If the Supplier:
- commits any breach of the Purchase Order;
- defaults in the performance of any requirement of the Purchase Order or refuses or neglects to comply with any direction issued in accordance with the Purchase Order; or
- becomes insolvent or bankrupt or being a company goes into liquidation,
Council may terminate the Purchase Order.
4 – Goods
If the Services include the supply of goods ('Goods'), the Goods are at the Supplier's risk until delivered to the destination at the time specified in the Purchase Order. Upon delivery, the Supplier shall pass title to the Goods free of encumbrances and all other adverse interests to Council, unless Council rejects the Goods.
5 – Insurance
5.1 Public Liability Insurance
The Supplier must, at all times while providing the Services, be the holder of a current public liability policy of insurance ('the Public Liability Policy') in the name of the Supplier providing coverage for an amount per event of at least $10,000,000.
The Public Liability Policy shall cover such risks and be subject only to such conditions and exclusions as are approved by Council and shall extend to cover Council in respect to claims for personal injury or property damage arising out of negligence of the Supplier.
5.2 Professional Indemnity Insurance
Where the Supplier is providing professional services to Council the Supplier must, at all times while providing the Services, be the holder of a current professional indemnity policy of insurance in respect of the activities related to the provision of the Services providing coverage for an amount per event of at least $5,000,000.
5.3 Provision of Evidence
The Supplier must provide Council with certificates of currency in respect of all insurances required by the Purchase Order and also evidence of Worker’s Compensation Insurance, within two (2) days of a written request by Council.
5.4 Failure to Insure
If the Supplier fails to comply with its obligations to insure or to provide evidence of insurance Council may immediately terminate the Purchase Order.
6 – Indemnity
The Supplier must indemnify and keep indemnified Council, and its Councillors and staff, from and against all actions, claims, losses, damages, penalties, demands or costs (including, without limitation, all indirect losses, consequential losses and legal costs on a full indemnity basis) consequent upon, occasioned by, or arising from its performance or purported performance of its obligations under the Purchase Order and directly related to a negligent act, error or omission of or on behalf of the Supplier.
7 – Occupational Health & Safety
The Supplier must itself, and must ensure that any sub-contractors of the Supplier, at all times identify and take all necessary precautions for the health and safety of all persons, including the Supplier's employees and sub-contractors, staff of Council and members of the public, who may be affected by the provision of the Services.
The Supplier must immediately comply with any and all directions by Council relating to OH&S. The Supplier must prepare and use safety plans and risk assessments for the Services and supply these to Council when requested.
8 – Completion
The Supplier must complete the Services on or before the deadline specified by Council in accordance with the Purchase Order. Time is of the essence in the Purchase Order. Any extension of time for the provision of the Services must be approved in writing by Council prior to the original deadline for the completion of the Services.
Council reserves the right to terminate the Purchase Order if the Services are not provided by the deadline set out in the Purchase Order.
9 – Intellectual Property
Subject to this clause, the property and copyright in all materials produced pursuant to the Purchase Order will vest in Council. The Supplier must ensure that any person, including employees, agents, and subcontractors, engaged by it in the provision of the Services agrees to assign to Council all the property and copyright in the material produced.
Nothing in the Purchase Order affects or in any way alters the Supplier's ownership of or rights to any pre-existing intellectual property.
The Supplier will not use, reproduce, or publish, other than for Council, the material produced pursuant to the Purchase Order, without the prior written consent of Council.
The Supplier, in providing the Services, shall not breach the intellectual property rights of any third party.
10 – Confidentiality
The Supplier will not disclose, will ensure that its employees, agents and contractors do not disclose, and will maintain proper and secure custody of, any information relating to Council or its affairs which may come to its or their knowledge during the term covered by the Purchase Order.
11 – Information Privacy
The Supplier shall, in respect of Personal Information held in connection with the Purchase Order, comply with the Information Privacy Principles with respect to any act done, or practice engaged in, by the Supplier, its employees, and agents including, without limitation, using Personal Information only for the purposes of fulfilling the Supplier's obligations under the Purchase Order and not disclosing Personal Information except for the purpose of fulfilling the Supplier's obligations under the Purchase Order.
12 – Variation or Termination
Council may, at any time, by giving written notice to the Supplier, terminate the Purchase Order and the Supplier must on receipt of such notice immediately cease all work and take all appropriate action to mitigate any loss or prevent further costs being incurred. In such event Council will pay the reasonable fees and expenses of the Supplier in accordance with the Purchase Order but not any loss of prospective profits. In no circumstances shall the fees payable exceed the fees that would have been paid had the Services under the Purchase Order been completed.
Council may at any time give written notice to the Supplier proposing a variation to the scope of the Services. The Supplier must, as soon as possible, or in any event within seven days, provide a written proposal as to varied costs that will apply for the provision of the varied Services. Council may accept the varied cost proposal within seven days of receipt from the Supplier but in the absence of such acceptance this Purchase Order will continue as if no proposal under this clause had been made.
13 – Rejection of Services
Council may reject any of the Services that do not comply in every respect with the Purchase Order. Council is not required to make payment for any rejected Services. If the Services include goods, the Supplier shall remove all rejected Goods from Council's premises within a reasonable period of time, and at the Supplier's expense and risk.
14 – Survival of Rights and Obligations
The rights and obligations of the parties under clauses 5, 8, 9, 10, and 11 shall survive the termination or expiry of the Purchase Order.
15 – Payment
The Purchase Order is placed on a firm price basis, including GST, in accordance with the price(s) listed in the Purchase Order.
Where applicable, payment for provision of the Services under the Purchase Order must be claimed on a Tax Invoice that includes the Australian Business Number of the Supplier. This invoice must be submitted to Council no later than the 28th day of the month. Payment shall, unless otherwise stated in writing, be made by the last day of the following month. Deductions for statutory reasons or contract retentions shall be made where applicable.
In the Purchase Order, a reference to "$" or "dollars" is a reference to Australian dollars.
Payment will be made only by electronic funds transfer. The Supplier must nominate and provide details of a bank account for this purpose.
16 – Governing Law
The law of the State of Victoria governs the Purchase Order and any legal proceedings under the Purchase Order.
17 – Joint and Several Obligations
If the Supplier consists of two or more parties, the Purchase Order binds each of them severally and jointly.