Trading Agreement 1 Insert State/Territory Emblem Trading Agreement This Trading Agreement is the General Conditions of Contract Insert Name of Organisation, and Services Required -Where Applicable Version 1.0 April 2004 Trading Agreement 2 TABLE OF CONTENTS ______________________________________________________________________________ 4 1 Recitals _____________________________________________________________________ 5 2 Agreed Terms: Definitions and Interpretations ______________________________________ 5 3 Construction _________________________________________________________________ 8 4 Term _______________________________________________________________________ 8 5 No Assignment _______________________________________________________________ 9 6 Survival_____________________________________________________________________ 9 7 Stamp Duty __________________________________________________________________ 9 8 Supply of Services ____________________________________________________________ 9 9 Acceptance of Services ________________________________________________________ 10 10 Quality of Services __________________________________________________________ 10 11 Ownership of Contract Material ________________________________________________ 11 12 Warranties and Guarantees ____________________________________________________ 11 13 Amounts Owing To Be Deducted From Moneys Due________________________________ 11 14 Code of Conduct ____________________________________________________________ 11 15 Payment ___________________________________________________________________ 11 16 Price ______________________________________________________________________ 12 17 Price Variations _____________________________________________________________ 12 18 Intellectual Property Rights ____________________________________________________ 12 19 Confidential Information ______________________________________________________ 14 20 Reporting Against Key Performance Indicators ____________________________________ 14 21 Conflict Of Interest __________________________________________________________ 15 22 Indemnity__________________________________________________________________ 15 23 Insurance __________________________________________________________________ 15 24 Publicity___________________________________________________________________ 16 25 Dispute Resolution___________________________________________________________ 16 26 Termination ________________________________________________________________ 16 27 Termination By The Contractor_________________________________________________ 17 28 Notices ____________________________________________________________________ 17 29 Public Disclosure Of Contract Information ________________________________________ 18 30 Occupational Health And Safety ________________________________________________ 18 31 Force Majeure ______________________________________________________________ 18 32 Modification Or Amendment __________________________________________________ 18 33 Severance__________________________________________________________________ 19 34 Waiver ____________________________________________________________________ 19 35 Applicable Law _____________________________________________________________ 19 36 Jurisdiction Of Courts ________________________________________________________ 19 37 Signatories _________________________________________________________________ 20 Trading Agreement 3 PART 6 DRAFT TRADING AGREEMENT This agreement is the only Trading Agreement General Conditions between the State and the supplier requiring the signature of both parties. Contracts, Standing Offers, etc. will require formal notification specific to the Special Conditions only without the need for signature by both parties. Notes to Tenderers 1 This document is DRAFT ONLY, prepared on behalf of the Contract Authority for the purposes of assisting the Contract Authority in the procurement of services. The Contract Authority will not be legally bound by it until a final copy is signed by the parties. Any actions taken in anticipation of signing is at the risk of the party taking them. 2 The partner document to this agreement is the specific Request for Tender document, which contains the Special Conditions. Trading Agreement 4 PART 6 DRAFT CONTRACT DEPARTMENT OF (insert) EXAMPLE 1 ONLY THIS AGREEMENT is made the day of 2001 BETWEEN: THE MINISTER FOR (INSERT TITLE) a body corporate pursuant to (add legal description) AND [INSERT] (A.C.N. [INSERT]) of [INSERT] (“Contractor”) [THERE IS NO REQUIREMENT TO COMPLETE THIS FIELD AT THE TIME OF RESPONDING] EXAMPLE 2 ONLY THIS AGREEMENT DATED this _______________________ Day of __________________________ 200__ BETWEEN THE STATE OF (insert) through the (add legal description) AND trading as (if applicable) and having its Contract Authority place of business at (in this Agreement called “the Contractor”) ___________________________________________________________________ Trading Agreement 5 1 RECITALS a) (Name of State Health Department/Authority) may from time to time wish to place orders on the Contractor for the supply of goods and services. b) These parties wish to record their agreement about incorporating (Name of State Health Department/Authority General Conditions of Contract into certain contracts. c) The Contractor has agreed to supply the services in accordance with the terms and conditions in this Trading Agreement General Conditions and those specified in the Special Conditions. 2 AGREED TERMS: DEFINITIONS AND INTERPRETATIONS Term Definition and Interpretation Acceptance Date The date on which the Services are accepted by the Contract Authority in accordance with the relevant Special Conditions. Agreement This Trading Agreement General Conditions for the supply of Services between the Contract Authority and the Contractor. ANTS GST Act The A New Tax System (Goods and Services Tax) Act 1999. Commencement Date The date specified in the relevant Special Conditions. Completion Date The date specified in the relevant Special Conditions. Confidential Information Any information or data, including Personal Information, whether or not in a material form, which is confidential to a party including confidential information acquired, collected or developed for the purposes of this Agreement or obtained during the currency of this Agreement, except that which is already in the public domain otherwise than as a result of a breach of this Agreement. Sensitive information, of either party, not already in the public domain and not available from any other source, the publication of which could adversely affect either party. Contract The agreement between the Contract Authority and the Contractor. Contract Authority A (insert names eg department, agency, Health Unit), statutory authority of the Contract Authority or other bodies as approved by the Contract Authority from time to time. (Each jurisdiction to provide their own legal description). Contract Authority’s Representative The person so identified in the relevant Special Conditions. Contractor’s Representative The person so identified in the relevant Special Conditions. Trading Agreement 6 Term Definition and Interpretation Contract Material (i) any material forming part of or constituting a deliverable that is created, written or otherwise brought into existence by or on behalf of the Contractor in the course of performing the Services (called “new contract material”); (ii) any material that exists at the commencement date and is incorporated into a deliverable (called “existing contract material”); Defective Contract Material Any Contract Material which is found to contain defects or imperfections or any non-compliance with the Specification at any time prior to the expiry of the Warranty Period which applies to the Contract Material. Force Majeure a) An act, omission or circumstance over which a Party could not reasonably exercise control which affects the ability of that Party to perform its obligations; and b) In the case of the Contractor, includes any delay by a sub-Contractor of the Contractor, but only if that delay is beyond the reasonable control of that sub-Contractor. Free Into Store (FIS) No additional costs incurred above the contracted price. GST The tax imposed under the ANTS GST Act. GST Act A New Tax System (Goods and Services Tax) Act 1999 (Cth) as amended. Insolvency Event a) An administrator is appointed to the Contractor or action is taken to make that appointment; b) The Contractor resolves to be wound up; c) An application is made to a court for an order or an order is made that the Contractor be wound up (whether on grounds of insolvency or otherwise);the Contractor ceases to carry on business; e) A receiver or a receiver and manager of property of the Contractor is appointed whether by a court or otherwise; f) An application is made to a court for an order appointing a liquidator or provisional liquidator in respect of the Contractor or one of them is appointed, whether or not under an order; g) The Contractor enters into a compromise or arrangement with its creditors or a class of them; or h) The Contractor is or states that it is unable to pay its debts as and when they fall due. Intellectual Property Rights Any patent, copyright, trademark, trade name, design, trade secret, know how or other form of confidential information, or any right to registration of such rights and any other form of intellectual property right whether arising before or after the execution of this Agreement. Notice A notice or a consent, approval or other communication required to be in writing under this Agreement. Trading Agreement 7 Term Definition and Interpretation Price The price for the Items described in the relevant Special Conditions. Purchase Card The (insert card name) or other Contract Authority-nominated credit card made available to Purchasers from time to time through a whole of Government contract. Related” and “Subsidiary When used to describe a corporation, have the same meanings as in the Corporations Act 2001. Request for Tender [RFT] The partner document to this Trading Agreement document, that defines the Services that the Contract Authority requires Tenderers to supply. Schedule A schedule to this Agreement. Special Conditions Any Special Conditions stated as part and parcel of the Contract. In the event of any inconsistency between sections, the Special Conditions [unless the Contract otherwise provides] shall prevail. Special conditions include any contract, standing offer, purchase order or similar Special Conditions for the supply of services to the Contract Authority by the Contractor. Specifications The specifications for the Items listed in the relevant Special Conditions as changed (if at all) by the Contract Authority when placing an order. Tenderer A person, company or organisation that responds to this Request for Tender. The person, body or company who offers to supply services which are subject to this Contract. Term The period referred to in Clause 4. TGA Therapeutic Goods Administration, a division of the Australian Government Department of Health and Ageing Trading Agreement This Trading Agreement document is the General Conditions of contract. Unacceptable usebbydate A date by which, in the normal course of events, the Contract Material bearing the date could not be used within the Contract Authority’s usual stock turnover rate. Warranty The period set out in Clause 4 (refer also to Clause 13). Trading Agreement 8 3 CONSTRUCTION 3.1 Subject to any inconsistency of subject or context, the following rules of construction will be used to interpret this Agreement: a) any word importing the plural includes the singular and vice versa; b) any word importing a gender includes all other genders; c) a reference to a body corporate includes a reference to natural persons or other forms of associations and vice versa; d) a reference to a Recital, Clause, Schedule or Annexure is a reference to a recital, clause, schedule or annexure of this Agreement; e) the captions, headings, section numbers and clause numbers appearing in this Agreement are inserted only as a matter of convenience and in no way affect the construction of this Agreement; f) a reference to a statute includes all statutes amending, consolidating or replacing the statute. 3.2 Documents comprising this Agreement This Agreement incorporates any schedule and annexure attached to it. In resolving inconsistencies in this Agreement: a) this Agreement (excluding its Schedules); b) Special Conditions; c) its Schedules; and d) any Annexures to the Schedules have priority, in that order. 3.3 Relationships a) Nothing in this Agreement should be construed to create any fiduciary relationship between the parties or any relationship of employer and employee, Contract Authority and agent or partnership between the Contract Authority and: • the Contractor; • the Nominee; or • any Contractor Staff. b) In their dealings with third parties, neither the Contract Authority, on the one hand, nor the Contractor or any Contractor Staff on the other hand, have the authority to bind the other party in any manner whatsoever, except with the prior written approval of the other party. 4 TERM 4.1 This Agreement commences on the Commencement Date and expires on the Completion Date unless: a) that period is extended by agreement between the parties; or b) either party exercises its right to terminate this Agreement under clauses 27 or 28, however that right arises; or c) parties agree there is no completion date. Trading Agreement 9 4.2 The Contract Authority may extend the period of operation of this Agreement for a further period (as specified in the Schedules) or part thereof by giving written notice to the Contractor at any time before Completion Date. An extension of this Agreement will be on the same terms and conditions as are contained in this Agreement except that the Contract Authority will not have any right to extend the operation of this Agreement by a further period unless the Contractor agrees. 5 NO ASSIGNMENT 5.1 Except with the prior written consent of the Contract Authority, the Contractor shall not assign or encumber any of its rights or obligations under this Agreement. 5.2 Unless otherwise agreed, an amendment to this Agreement will not affect any contractual arrangements entered into prior to the amendment taking effect. 6 SURVIVAL 6.1 Any obligation imposed by this Agreement in relation to Intellectual Property Rights, insurance, indemnity and publicity shall survive the expiry or termination of this Agreement. 7 STAMP DUTY 7.1 The Contractor shall pay all Stamp Duty, if any, in connection with the relevant Special Conditions. 8 SUPPLY OF SERVICES 8.1 Contractor Obligations, the Contractor shall: a) supply the Services on the terms and conditions set out in the relevant Special Conditions and free from encumbrance; b) have sufficient resources to provide the services in a timely manner during the currency of the Agreement; c) comply with all timeframes specified in the relevant Special Conditions; and d) provide all other material or information specified in the relevant Special Conditions. 8.3 Failure to Supply 8.3.1 Where the Contractor is unable or fails (for whatever reason) to provide the Services the Contracting Authority may without being liable in any way to the Contractor obtain or acquire such Services as it requires at that time or in that place (as the case may be) from any other source, Contractor or provider thereof. Any additional expense incurred by the Contracting Authority by reason of its exercise of the powers conferred by this clause shall be a debt due from the Contractor to the Contracting Authority. 8.4 Intellectual Property Terms and Conditions 8.4.1 The terms and conditions specified in the relevant Special Conditions apply whenever the Contractor grants to the Contracting Authority a licence to use Intellectual Property Rights under this Agreement. Trading Agreement 10 9 ACCEPTANCE OF SERVICES 9.1 The completion of Services shall not of itself constitute acceptance of the Services by the Contracting Authority. 9.2 The Contracting Authority will provide notice in writing to the Contractor of any failure to provide the Services. 9.3 The Contracting Authority will accept the Services by providing notice in writing to the Contractor once the Contracting Authority is satisfied that the Services conform to the Specification. 9.4 Acceptance of the Services by the Contracting Authority does not relieve the Contractor of its obligations or warranties under this Agreement. 9.5 If the Contracting Authority does not accept the Services, the Contractor must within (the period specified in) the relevant Special Conditions, supply Services that comply with this Agreement, or the Contracting Authority may terminate this Agreement at its option. 10 QUALITY OF SERVICES (Identical to RFT Clause 31). 10.1 All Services supplied shall be to a standard acceptable to the Contracting Authority and shall conform to the Specification and the standards specified in the Special Conditions or to samples supplied. 10.2 Where no standards are specified in the Special Conditions, the Services shall comply with the appropriate and current standard of the Standards Association of Australia and if there is no such standard then such other standard as the Contracting Authority may consider appropriate. 10.3 If no standards are applicable the Services supplied shall be of the best of their several kinds and materials, standards of construction and capacity for performance, as the case may be, and shall be of a kind which is suitable for their purpose as stated in the Agreement and which is consistent with the nature and character of Services fully capable of the intended use to which the Services are to be put. 10.4 Where applicable the Contractor is obliged to ensure the conduct of all quality control testing of products is in accordance with the appropriate requirements -TGA’s Code of Good Manufacturing Practice, uniform recall procedures for therapeutic goods, or other applicable standards required by legislation prior to releasing them for sale. Where requested, the Contractor is to provide a copy of the analytical report to accompany the specific batch of the product supplied. 10.5 For therapeutic goods provided as part of the Services, the Contractor shall be required to comply with the TGA’s Uniform Recall Procedures for Therapeutic Goods. 10.6 All Contract Material supplied as part of the Services shall be in new and unused condition and of recent origin, unless the Special Conditions specifies otherwise. Such Contract Material shall not be of inferior quality or improper description. If Trading Agreement 11 this condition is not satisfied the Services may be rejected and the Special Conditions repudiated at the discretion of the Contract Authority. 11 OWNERSHIP OF CONTRACT MATERIAL 11.1 Title to and ownership of the Contract Material shall pass to the Contracting Authority upon acceptance of the Contract Material, or upon payment for the Services, if such payment is made prior to acceptance of the Services. Payment shall include credit by way of set-off. 12 WARRANTIES AND GUARANTEES 12.1 The Contractor shall guarantee the Services, and all options and accessories, against faulty workmanship and materials for twelve months, except as otherwise specified in the Special Conditions. 13 AMOUNTS OWING TO BE DEDUCTED FROM MONEYS DUE 13.1 All damages, losses, charges or expenses incurred by the Contract Authority, which are chargeable to or recoverable from the Contractor, may be deducted from moneys due or to become due to the Contractor and shall be a debt due from the Contractor to the Contract Authority, and may be recovered from the Contractor in any Court of competent jurisdiction. 13.2 The costs of repairing, replacing or making good all or any damage caused by the Contractor or the Contractor’s employees to the property of the Contract Authority shall be borne by the Contractor. 14 CODE OF CONDUCT (Refer to Special Conditions -Jurisdictions will insert own clause, or delete). 14.1 The Contract Authority’s employees are bound by a “Code of Conduct” that requires probity in all dealings including those conducted with Contractors. The Contract Authority has adopted the Code to ensure that functions are undertaken efficiently, impartially and with integrity. 14.2 Contractors agree to report any reasonably held suspicion of fraudulent activity against the Contract Authority, arising out of or connected with this Contract, to the Contract Authority. 15 PAYMENT 15.1 Subject to this clause, the Contract Authority (or an entity approved by the Contract Authority) is liable to pay the prices for Services supplied and accepted in accordance with this Agreement and the relevant Special Conditions within (the specified number of) days of valid Tax Invoice. 15.2 The Contract Authority (or an entity approved by the Contract Authority) is not obliged to make any payment under this Agreement unless the Contractor has provided a correctly rendered Tax Invoice in respect of that payment. Trading Agreement 12 15.3 The Contract Authority (or an entity approved by the Contract Authority) may deduct any amount owed to the Contractor by the Contract Authority (or an entity approved by the Contract Authority) or any other Contract Authority under this Agreement. 16 PRICE 16.1 Fixed prices are required for the term of the contract unless otherwise agreed between the parties in the relevant Special Conditions, and in relation to price variations in Clause 18. 16.2 Any charge not stated in the Special Conditions as being additional, will not be allowed as a charge against any transaction under the Special Conditions. 17 PRICE VARIATIONS 17.1 This clause shall only apply if the Contractor’s tender has been accepted by the Contract Authority on the basis that Contract prices are variable. 17.2 The Contractor shall advise the Contract Authority in writing of any decrease in the costs of the Services being supplied and shall pass on those cost reductions within 14 days of becoming aware of those cost decreases. Reductions shall be notified to the Contract Authority in writing. 17.3 Applications for increases in Contract rates shall be submitted in writing to the Contract Authority, along with documentary evidence to justify the variation (eg cost of materials, direct labour, overheads, profit), as far in advance as practicable of the date from which the variation is to be claimed. Variations may only be allowed for price movements which are outside the control of, and which could not have been known for certain by, the Contractor at the time of tendering. Any increase granted shall operate not less than 14 days from the receipt of satisfactory documentary evidence. The Contract Authority may not consider applications for retrospective increases. 17.4 The Contract Authority reserves the right, upon receipt of any application, to grant or refuse it in whole or in part in its absolute discretion or to suspend or terminate the Agreement and purchase from another source without infringement of the Agreement whilst the application is being considered. 18 INTELLECTUAL PROPERTY RIGHTS 18.1 Subject to this clause, the Contract Authority will own all Intellectual Property Rights in all things produced by the Contractor arising out of, or in respect of, this Agreement. 18.2 The Contract Authority does not own: a) the Contractor’s Intellectual Property Rights in existence at, or prior to, the date of this Agreement; or b) copyright in existing publications or other work produced by or on behalf of the Contractor prior to, or otherwise than in, the course of performing its obligations under this Agreement. 18.3 The Contractor must not infringe the intellectual property rights of any person in performing its obligations under this Agreement. Trading Agreement 13 18.4 The Contractor shall indemnify and keep indemnified the Contract Authority against all costs, expenses and liabilities whatsoever arising out of, or in connection with, any claim that the provision of the Services by the Contractor infringes the Intellectual Property Rights of any person. 18.5 If it is determined by any independent tribunal of fact or law, or if it is agreed between the parties to a dispute, that an infringement of Intellectual Property Rights has occurred, the Contractor must at its own expense: a) obtain for the Contract Authority the right to continue using the Contract Material; b) modify or replace the Contract Material (without detracting from their overall performance) so as to avoid the infringement, and compensate the Contract Authority for the amount of any direct loss or damage sustained or incurred by the Contract Authority during, or as a result of, such modification or replacement); or c) if the solutions in either of the two preceding paragraphs cannot be achieved on reasonable terms: • remove the Contract Material; • refund the moneys paid for the Contract Material; and • pay to the Contract Authority the amount of any direct loss or damage sustained as a result of such removal; provided that the Contract Authority, in its sole discretion, may determine that it is necessary to retain and continue to use the Contract Material and any payments required to be made to a third party as a consequence of this action shall be reimbursed by the Contractor to the Contract Authority. 18.6 The Contractor shall effect and maintain insurance against the risks referred to in this clause and will on request by the Contract Authority produce to the Contract Authority written evidence of the currency of such insurance. 18.7 For the purposes of this Clause, “infringement” includes unauthorised acts which would, but for the operation of the Section 163 of the Patents Act 1990 (Cth), Section 40A of the Designs Act 1906 (Cth) and Section 183 of the Copyright Act 1968 (Cth) constitute an infringement. 18.8 In the event of any claim being made or brought against the Contract Authority in respect of any of the matters stated in this clause, the Contractor shall be immediately notified thereof. The Contractor shall, with the assistance if required of the Contract Authority, but at the Contractor’s sole expense, conduct all negotiations for the settlement of the same or any litigation that may arise therefrom and in the event of the failure by the Contractor so to do, the Contract Authority shall have the power to suspend payment of any money due to the Contractor under the Agreement until such claim has been satisfied, settled or withdrawn. Any such claim which has not been satisfied or withdrawn at the date when the Agreement would otherwise have been completed shall be a debt due by the Contractor to the Contract Authority. Trading Agreement 14 19 CONFIDENTIAL INFORMATION 19.1 If the Contract Authority discloses Confidential Information to the Contractor, the Contractor must not use or disclose the Confidential Information without first obtaining the Contract Authority’s written consent. 19.2 There will be no breach of obligations by the Contractor if the Confidential Information is legally required to be disclosed or permitted to be disclosed by this Agreement. 19.3 The Contractor may disclose Confidential Information to its Personnel if: a) the Personnel need to know the information for the performance of duties under this Agreement; b) the Contractor first makes the Personnel aware of the confidential nature of the Confidential Information; and c) the Contractor requires the Personnel to treat the information confidentially. 19.4 When the Contractor is aware of any steps being taken, or considered, to legally compel the Contractor or the Personnel to disclose Confidential Information, the Contractor shall: a) to the extent legally permitted, defer and limit the disclosure with a view to preserving the confidentiality of the Confidential Information as much as possible; b) promptly notify the Contract Authority; and c) do anything reasonably required by the Contract Authority including the institution and conduct of legal proceedings at the Contract Authority’s direction and expense to oppose or restrict that disclosure. 19.5 The Contractor acknowledges that the Contract Authority may disclose Confidential Information: a) to Parliament, the Governor, Cabinet or a Parliamentary or Cabinet committee or subcommiittee b) to any agency, authority, instrumentality, Minister or officer of the State to whom it is customary for the Contract Authority to disclose the Confidential Information (whether or not the Contract Authority is legally obliged to do so); or c) for the purposes of prosecuting or defending any legal proceedings. 20 REPORTING AGAINST KEY PERFORMANCE INDICATORS 20.1 The Contractor must comply with any Key Performance Indicators (KPIs) contained in the relevant Special Conditions. 20.2 Either Party may request a review of the KPIs at any time during the Term, and the Parties must negotiate in good faith to amend the KPIs. 20.3 If the Parties are unable to agree to amend the KPIs, then the KPIs described in the relevant Special Conditions will prevail. 20.4 The Contractor must provide the reports described in the relevant Special Conditions. Trading Agreement 15 21 CONFLICT OF INTEREST 21.1 The Contractor must disclose in writing to the Contract Authority all actual and potential conflicts of interest that exist, arise or may arise (either for the Contractor or any Contractor Staff) in the course of performing the Services as soon as practical after it becomes aware of that conflict. 22 INDEMNITY 22.1 The Contractor must indemnify and keep the Contract Authority indemnified from and against any cost, loss, expense, claim, demand, expense or liability of any kind in respect of: a) loss of life, personal injury or disability; b) loss of or damage to property; or c) any other loss arising directly or indirectly in relation to the supply of Services, except to the extent that the loss is caused, or contributed to, by the Contract Authority or the Contract Authority’s employees, agents or contractors. The indemnity shall be a continuing indemnity and shall survive the termination of the Agreement. 23 INSURANCE 23.1 The Contractor shall maintain in force at its own expense during the Term and with insurers satisfactory to the Contract Authority: a) Public liability insurance in the name of the Contractor, but also naming the Contract Authority, for not less than (the amount specified in the relevant Special Conditions) for any one event (and in the aggregate for Products Liability in any one policy period) or such other amount as the Contract Authority may reasonably require; b) Professional Indemnity insurance in the name of the Contractor for not less than (the amount specified in the relevant Special Conditions) for any one event (and in the aggregate in any one policy period) or such other amount as the Contract Authority may reasonably require. c) Worker’s Compensation insurance in the name of the Contractor in relation to any employees of the Consultant for not less than (the amount specified in the relevant Special Conditions), including liability under statute and at common law 23.2 The Contractor will ensure that the insurance policy referred to in Clause (insert no,) is renewed and maintained until termination of this Agreement. 23.3 Before commencing work or the delivery of Services under this Agreement the Contractor shall provide the Contract Authority with insurance certificates of currency for the insurances required in 24.1 a) and 24.1 b). 23.4 The Contract Authority in specifying levels of insurance in this Agreement 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. Trading Agreement 16 23.5 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 Agreement. 24 PUBLICITY 24.1 The Contractor must not make or permit to be made a public announcement or media release about any aspect of this Agreement or the Special Conditions without the Contract Authority’s prior written consent. 25 DISPUTE RESOLUTION 25.1 Disputes in relation to this Agreement or the Special Conditions must be resolved in accordance with this clause. 25.2 Either party may, in a case of genuine urgency, seek immediate interlocutory relief or an interim remedy. 25.3 Subject to sub-clause 26.2 all disputes must be resolved 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 14 days of the dispute arising. b) The Negotiators must meet as soon as practicable 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 their Executive Negotiator as specified in this Agreement or in the Special Conditions. d) The Executive Negotiators must meet as soon as practicable 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. 25.4 Notwithstanding the existence of a dispute each party must continue to perform its obligations under this Agreement. 25.5 This clause survives any expiry or termination of this Agreement. 26 TERMINATION 26.1 The Contract Authority may terminate the Agreement in whole or in part if the Contractor: a) fails to deliver the Services within the time specified in the Special Conditions or when ordered; b) fails to provide Services that perform in accordance with the Contract requirements and specification; c) is in breach of any other term of the Special Conditions and has failed to remedy such breach within 30 days of being notified of details of the breach in writing by the Contract Authority; d) assigns its rights under, or sub-contracts the whole or part of, the Special Conditions without the written consent of the Contract Authority; e) (if an individual) becomes bankrupt; or Trading Agreement 17 f) (if a corporation) goes into voluntary or compulsory liquidation or is placed under official management or goes into receivership; g) makes an assignment of its estate for the benefit of its creditors, or makes an arrangement or composition with its creditors; h) is convicted of any offence, which in the opinion of the Contract Authority is relevant to the discharge of its obligations under the Contract; or i) commits a breach of the Code of Conduct and/or Ethics, where appropriate. 26.2 In the event that the Agreement is terminated pursuant to Clause 27.1: a) all losses that have been incurred by the Contract Authority as a result of the termination shall be recoverable by the Contract Authority from the Contractor; b) the Contract Authority will not be liable to pay any compensation to the Contractor; c) the Contract Authority may cease to make any payments to the Contractor under that Contract; d) the Contract Authority may recover from the Contractor all sums paid for undelivered Services and/or Contract Material. 27 TERMINATION BY THE CONTRACTOR 27.1 The Contractor may terminate the Agreement by notice to the Contract Authority if: a) the Contract Authority has failed to make a payment in breach of clause 16, except with respect to any payment or portion that the Contract Authority disputes under clause 26; and b) the breach in clause 28.1 (a) is not remedied within thirty (30) days of receipt of a notice from the Contractor. 28 NOTICES 28.1 A notice must be in writing and signed by or on behalf of the sender, addressed to the recipient and: a) delivered by hand to the recipient’s address; b) sent by pre-paid mail to the recipient’s address; c) delivered by courier to the recipient’s address; d) transmitted by facsimile to the recipient’s address; or e) transmitted by email to the recipient’s email address. 28.2 A notice given to a person in accordance with this clause is treated as having been given and received: a) on the day of delivery if delivered before 5.00pm on a business day, otherwise on the next business day; b) if delivered by courier and evidence is produced to that effect, at the time of delivery; c) if sent by pre-paid mail, in due course of the post; d) if transmitted by facsimile and a correct and complete transmission report is received on the day of transmission, on that day if the report states that transmission was completed before 5.00pm on a business day, otherwise on the next business day; or e) if transmitted by email at the time received by the recipient’s computer. Trading Agreement 18 28.3 The address, facsimile number and email address of a person are those set out below that person’s name in the relevant Special Conditions. 28.4 A person may from time to time change its address or facsimile number by giving written notice to the other party. 29 PUBLIC DISCLOSURE OF CONTRACT INFORMATION 29.1 (Each jurisdiction insert own clause). 30 OCCUPATIONAL HEALTH AND SAFETY 30.1 To ensure compliance with the highest health and safety standards the Contractor must ensure that: a) the Contract Material is safe and without risk to health when properly used; b) the risks associated with manual handling of the Contract Material during delivery, transfer, use and disposal must, as far as possible, be minimised; c) the risks posed by the Contract Material in association with exposure to blood and other body fluids (either from needle-stick or other cutting injuries, or from splashing on to skin or muscular surfaces) are, as far as possible, minimised. 30.2 The contractor must provide, with the Contract Material, all available information regarding: a) the purpose for which the Contract Material is designed; b) the results of any tests carried out on the Contract Material; c) any conditions (i.e. environmental or procedural) necessary to ensure that, when put to correct use, the Contract Material will be safe and without risks to health; and d) instructions for correct use (including storage, use and disposal). 31 FORCE MAJEURE 31.1 Either party may terminate the Agreement by giving ten Business Days notice to the other party where the performance of that party's obligations has become impossible due to Act of God meaning for the purpose of the Agreement any natural event not being within the power of man to prevent or an event of Force Majeure being for the purposes of the Agreement any event beyond the control of the party seeking to rely on it and which renders it impossible for that party to perform including fire, explosion, accident, industrial dispute, civil commotion or impossibility of obtaining materials but not an obligation to pay money. 31.2 If the Agreement is so terminated the Contract Authority shall only be liable to make payments pursuant to the provisions of clause 16 for Services supplied before the effective date of termination. The Contract Authority shall not be liable to make any other payments whatsoever. 32 MODIFICATION OR AMENDMENT 32.1 Any modification of or amendment to this Agreement and/or the Special Conditions shall be in writing and signed by both parties. Trading Agreement 19 33 SEVERANCE 33.1 If any provision or part of a provision of this Agreement is invalid or unenforceable in any jurisdiction: a) the provision shall be read down for the purposes of the operation of that provision in that jurisdiction, if possible, so as to be valid and enforceable; or b) if the provision: • cannot be read down; and • is capable of being severed without affecting the validity of this Agreement and/or the Special Conditions; then the parties shall consult in good faith to determine whether any amendment or substituted provision is required. 34 WAIVER 34.1 A waiver of any provision of this Agreement and/or the Special Conditions is ineffective unless it is in writing and signed by the party waiving its rights. 34.2 A waiver by either party in respect of a breach of a provision of this Agreement and/or the Special Conditions by the other party is not a waiver in respect of any other breach of that or any other provision. 34.3 The failure of either party to enforce at any time a provision of this Agreement and/or the Special Conditions shall not be interpreted as a waiver of such provision. 35 APPLICABLE LAW 35.1 This Agreement will be governed by, and construed in accordance with the law for the time being in force in (insert name of State or Territory), and the parties submit non exclusive to the jurisdiction of the courts of that State. 36 JURISDICTION OF COURTS 36.1 The courts of (insert name of State or Territory) have exclusive jurisdiction to determine any proceeding in relation to this Agreement and/or the Special Conditions. 36.2 Any proceeding brought in a Federal Court must be instituted in the (Insert name of State or Territory) Registry of that Federal Court. 36.3 The Contractor undertakes not to apply to transfer any proceedings to another registry of the Federal Court. Trading Agreement 20 37 SIGNATORIES Example Only The parties have executed this Agreement as follows – SIGNED for and on behalf of the ) STATE/TERRITORY OF (Insert name of State or Territory) by ) ) ) ) ) (Signature) this day of , 200___ ) ) in the presence of : ) ) ) (Signature) SIGNED for and on behalf of ) ) ) (Full Name of Contractor) ) by ) ) ) __________________ (Full Name of Signatory) ) (Signature) ) ) ) (Designation) ) ) who certifies that he/she has authority to so sign, ) ) this day of , 200___ ) ) in the presence of : ) ) ) (Signature) Trading Agreement 21 EXECUTED AS AN AGREEMENT THE COMMON SEAL of THE ) ) MINISTER FOR (INSERT NAME) ) ) was affixed here by (Insert Name), Chief Executive of the ) of (Insert Name of Contract Authority), who is duly authorised ) in that regard: ) ............................................................................................ Witness [Print Name: ] THE COMMON SEAL of [INSERT] (A.B.N [INSERT]) ) ) was affixed here by . . . . . . . . . . . . . . . . . . . . . . . . . , ) ) a duly authorised person in that regard, ) ) in the presence of: ) [THERE IS NO REQUIREMENT TO COMPLETE THESE FIELDS AT THE TIME OF RESPONDING] ............................................................................................ Director [Print Name: ] ............................................................................................ Director/Secretary [Print Name: ]