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General Terms And Conditions

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RECITALS

Cape York NRM wishes to engage the Supplier to provide goods and perform, and the Supplier has agreed to provide goods and perform Works or Activities, in accordance with these general terms and conditions.

  1. General terms and conditions
    These general terms and conditions constitute the entire, final and concluded arrangement between the parties. It supersedes any previous arrangements, correspondence, tenders, representations, proposals, understandings and communications, whether oral or in writing.
  2. Definitions

    The following terms have the meanings set out in this clause, except where the context otherwise requires:

    “Activities” means the activities described in the Purchase Order to be performed in accordance with these terms and conditions;

    “Cape York NRM” means Cape York Natural Resource Management Ltd.;

    “Claim” means all claims including claims under statute or at common law or equity losses (including Consequential Loss) actions, damages, costs (including reasonable legal costs) and expenses whatsoever (whether incurred or suffered before or after the date of the Purchase Order)

    “Code” means the National Code of Practice of the Construction Industry, in accordance with the Australian Government Implementation Guidelines for the National Code of Practice for the Construction Industry, reissued June 2006 (“the Code”);

    “Commonwealth” means the Commonwealth of Australia as represented by the Department of Environment and/or the Department of Agriculture and any employee, agent or representative of these Departments.

    “Consequential Loss” means loss of use, production, profit, income, business, Agreement or anticipated saving, or for any delay, financing costs or increase in operating costs or any other financial or economic loss or for any special, indirect or consequential loss or damage;

    “Date for Completion” means the date(s) to provide goods and/or the completion of Works referred to in the Purchase Order;

    “Day” means calendar day;

    “Deliverables” means any goods or Works required to be delivered to Cape York NRM or Commonwealth or State Government.

    “Direction” means any agreement, approval, authorization, demand direction, instruction notice request or requirement whether written or oral.

    “Document” means calculations, analyses, reports, records, drawings, plans, diagrams, specifications, schedules, manuals, programs, descriptions and other information on documents and includes any form of storage of information or images, whether visible to the eye or not, including details of expenditure, preliminary reports, notes and electronic files or other media.

    “GST” has the same meaning as in the GST Act;

    “GST Act” means A New Tax System (Goods and Services Tax) Act 1999 as amended;

    “Information” means any Document, drawings, reports, technical specifications or other information relating to the Works, or the Purchase Order;

    “Intellectual Property” means copyright, trade mark, design, patent, trade secrets, semiconductor or circuit board layout rights, trade, business or company names, or any rights to registration of such rights whether created before or after the Date of the Purchase Order, and whether created in Australia or elsewhere and includes Moral Rights.

    “Milestone” means any milestone identified in the Purchase Order

    “Moral Rights” means the moral rights of attribution of authorship, right not to have authorship falsely attributed and right of integrity of authorship as specified in Part IX of the Copyright Act 1968 (Cth) and any of the rights described in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Work 1886, being "droit moral" or other analogous rights arising under any applicable statute (including the Copyright Act 1968 (Cth) its amendments or any other law of the Commonwealth).

    “State Government” means the State of Queensland as represented by the Department of Natural Resources and Mines and any employee, agent or representative of the Department.

    “Party” or “Parties” means Cape York NRM or the Supplier, or both as the context requires.

    “Price” means the sum identified as such in the Purchase Order;

    “Purchase Order” means the Purchase Order issued by Cape York NRM, including all documents referred to in clause 1.1 of these terms and conditions;

    “Site” means the site identified in the Purchase Order;

    “Supplier” means the person or entity identified as such in the Purchase Order;

    “Supply” has the same meaning as in the GST Act;

    “Tax Invoice” has the same meaning as in the GST Act;

    “WH&S” means Work Health and Safety

    “Works” means the works described in the Purchase Order;

  3. Price
    1. In consideration of the due and proper performance of the Works or delivery of expected goods by the Supplier, Cape York NRM agrees to pay the Supplier the Price provided that: -
      1. Cape York NRM has received sufficient funds from Commonwealth or State Government to enable it do so; and
      2. the Supplier has provided all Deliverables including a valid Tax Invoice correctly identifying the goods or Works.
    2. No payment is an admission or acceptance that releases the Supplier and all payments by Cape York NRM will be taken only to be as payment on account.
  4. Directions
    1. The Supplier must comply with any reasonable Direction given by Cape York NRM. Cape York NRM may give a direction to the Supplier either orally or in writing.
    2. Subject to clause 7 of these terms and conditions, the Supplier has no entitlement for additional payment or an extension of time unless the direction expressly provides otherwise in writing.
  5. Supplier to inform itself
    1. The Supplier warrants and acknowledges that it has examined or has been given the opportunity to examine:
      1. These terms and conditions, the Site and any other information made available in writing by Cape York NRM or any other person to the Supplier prior to entering into the Purchase Order; and
      2. all Information relevant to the risks, contingencies and other circumstances having an effect on the Supplier entering into the Purchase Order and which is obtainable by making reasonable enquiries;
      and has satisfied itself as to the adequacy and accuracy of such examinations or that such examinations are not necessary and that the Price includes due allowance for all matters and things necessary for the proper delivery of goods or performance and Completion of the Works.
    2. Without limiting clause 5.1;
      1. the Supplier acknowledges that Information supplied to the Supplier by Cape York NRM may not have been prepared by Cape York NRM;
      2. unless and until otherwise expressly advised in writing by Cape York NRM to the Supplier, the Supplier should assume that all Information provided by Cape York NRM to the Supplier has been prepared by a person or entity other than Cape York NRM;
      3. Cape York NRM makes no representation and gives no warranty as to the accuracy or sufficiency of any Information provided by Cape York NRM but which has not been prepared by Cape York NRM; and
      4. the Supplier is required to undertake its own enquiries to satisfy itself of the sufficiency and accuracy of the Information.
  6. Commencement and Completion
    1. The Supplier must commence the Works on the date for commencement or such other date as Cape York NRM may direct.
    2. The Supplier must reach Completion of the Works, including any defect rectification work that may be required to be performed by the Date for Completion. The Supplier must perform the Works competently, with due expedition and without delay so as to achieve this result.
    3. Cape York NRM may at any time suspend the execution of the Works. The Supplier will not be entitled to any extra payment as a result of suspension in accordance with this clause.
    4. The Supplier is not entitled to any damages or additional payment as a result of a delay, and an extension of time, if any, granted under this clause shall be the Supplier’s only remedy and entitlement for the delay.
    5. Cape York NRM may at any time, in its absolute discretion, and whether or not the Supplier has made a claim for an extension of time, extend the Date for Completion. Notwithstanding anything else contained in these terms and conditions or implied by law, this clause is inserted solely for the benefit of Cape York NRM and Cape York NRM is under no obligation to exercise its discretion for the benefit of the Supplier.
  7. Variations
    1. The Supplier must not vary the goods or Works except in accordance with a written direction from Cape York NRM.
    2. Cape York NRM may at any time, prior to Completion, direct the Supplier to vary the goods or Works, but may not direct a variation which is outside the scope of the goods or Works.
    3. No variation will invalidate the Purchase Order.
    4. The Supplier must carry out variations as if they were part of the good or Works originally included in the Purchase Order.
    5. Subject to clause 7.6, the Supplier will have no entitlement to any payment in addition to the Price or an extension of time for any variation, unless Cape York NRM expressly directs in writing that the Supplier will be paid an additional sum or is entitled to an extension of time for the variation.
    6. If the Supplier believes that it should be entitled to additional payment and or an extension of time as a result of a variation but Cape York NRM has not issued a direction under clause 7 then the Supplier must before carrying out the variation, and no later than 10 business days after the Supplier first becomes aware, or ought to have become aware of the variation, notify Cape York NRM in writing that it believes it is entitled to additional costs and or an extension of time as a result of the variation.
    7. If the Supplier has strictly complied with clauses 7.4 and 7.6 then;
      1. it will be entitled to have the variation valued in accordance with the rates and prices included in the Purchase Order (if Cape York NRM determines that those rates or prices are applicable to the variation) or otherwise, by Cape York NRM using reasonable rates, and the value, if any, of the variation will be considered in determining the Price; and
      2. it may be entitled to an extension of time as assessed by Cape York NRM in its absolute discretion.
    8. The Supplier shall be barred from making any Claim, including a claim for an extension of time or additional payments, in respect of a variation unless it has complied strictly with this clause.
  8. Termination of the Purchase Order
    1. Cape York NRM may at any time for its sole convenience, by written notice to the Supplier, immediately terminate the Purchase Order and either itself, or by a third party, complete the uncompleted part of the Works. If Cape York NRM terminates the Purchase Order pursuant to this clause 8.1, then the Supplier will be entitled to be paid the following amounts as determined by Cape York NRM provided such funds have been received by Cape York NRM from Commonwealth or State Government:
      1. the unpaid value of all goods or Works, delivered or completed, in accordance with the Purchase Order prior to the date of termination;
      2. the reasonable cost of goods or materials reasonably ordered by the Supplier for the Works and delivered to the site or to Cape York NRM and for which the Supplier is legally bound to pay and which the Supplier cannot otherwise utilize, subject to clear title to such goods and materials being transferred to Cape York NRM.
    2. The Supplier must immediately take all necessary steps to mitigate the costs referred to in clause 8.1, and the Supplier’s entitlement to claim these costs will be reduced proportionately to the extent of any breach of this clause.
    3. Any payment under this clause 8 will be the Supplier’s sole and full entitlement to compensation if Cape York NRM terminates the Purchase Order under Clause 8.1.
    4. If for any reason Commonwealth or State Government requires Cape York NRM to repay any funds that were allocated or paid to the Supplier for the goods or Works, then those funds shall be deemed as a debt owing by the Supplier to Cape York NRM.
    5. Within fourteen (14) days of the termination of the Purchase Order, the Supplier must deliver all Deliverables relating to the Purchase Order to Cape York NRM.
  9. Warranties and Obligations
    1. The Supplier warrants that:
      1. it is suitably qualified and able to perform the Works;
      2. it is not aware of any conflict of interest in delivering the goods or performing the Works and will notify Cape York NRM if any potential conflict arises;
      3. any design prepared by the Supplier in relation to the Works will be in accordance with the requirements of these terms and conditions;
      4. the goods and/or Works will be free from defects;
      5. the Works will be carried out in accordance with the Purchase Order and will comply with all requirements of the Purchase Order and all relevant Australian Standards;
      6. the goods and/or Works will be fit for the purpose for which they are intended;
      7. the Supplier will use new material and will execute the Works in a tradesman like manner;
      8. it has satisfied itself that any previous Works performed by Cape York NRM or another Supplier or any third party which will affect the Supplier’s Works has been properly performed in all respects;
      9. it has satisfied itself that the design of the goods and /or Works (and any related design) is free from defects;
      10. it will carry out its responsibilities in a skillful, competent, proper and professional manner;
      11. it will keep and retain for a period of six years after the end of the Purchase Order books and records in sufficient detail of expenditure;
      12. it will achieve all Milestones as set by Cape York NRM within the time allocated;
      13. if requested, it will make available to the public, Commonwealth or State Government or Cape York NRM any Document or Information required by Cape York NRM;
      14. as required, it will liaise with other parties concerned with Commonwealth or State Government and biodiversity including Indigenous people with traditional knowledge;
      15. it will comply with reasonable requests by Cape York NRM and Commonwealth or State Government to access areas;
      16. it will deliver any Deliverables to Cape York NRM as required by Cape York NRM or Commonwealth or State Government;
      17. it will comply with the State or Commonwealth’s requirements in relation to acknowledgement, announcements, logos and badging on any Promotional Material as set out from time to time. Guidelines are available from Cape York NRM.
      18. it will notify Cape York NRM of any direction or request for access or Information made by Commonwealth or State Government to the Supplier as soon as possible after the request is received.
  10. Work Health and Safety
    1. The Supplier is responsible for safety related to, and during the performance of, the goods and/or Works to protect the goods and/or Works, workers, the public and all other people on or about the site and their property and the property of third parties.
    2. The Supplier shall be responsible for, and Cape York NRM may set off against any monies owing to the Supplier, or failing that, recover from the Supplier as a debt due and owing, an amount equal to, any fines or other monetary penalties incurred by Cape York NRM arising out of or in connection with a breach of this clause by the Supplier.
    3. The Supplier must effect public liability insurance ($10 million per occurrence and not less than $20 million in aggregate), workers compensation insurance (to the extent required by law), professional indemnity insurance ($1,000,000.00) or statement of advice signed between parties, and any other insurance as directed by Cape York NRM and must provide evidence of such insurance upon request.
    4. The Supplier releases and indemnifies Cape York NRM and Commonwealth or State Government from all Claims arising out of, in relation to or as a result of any negligent act or omission with respect to the goods and/or Works.
    5. The Supplier must comply with and must ensure that its employees comply with:
      1. any Workplace Health and Safety Plan prepared by the Supplier and provided to Cape York NRM;
      2. all occupational health, safety and environmental law and if so directed by Cape York NRM, provide reasonable evidence of such compliance;
      3. all occupational health, safety and environmental law and if so directed by Cape York NRM, provide reasonable evidence of such compliance; and
      4. any direction by Cape York NRM.
    6. If the Supplier is required by the WHS to report a Notifiable Incident to the Regulator arising out of the goods and/or Works:
      1. at the same time, or as soon as is possible in the circumstances, the Supplier must give notice of such incident, and a copy of any written notice provided to the Regulator, to Cape York NRM; and
      2. the Supplier must provide to Cape York NRM, within such time as is specified by Cape York NRM, a report detailing the circumstances of the incident, the results of investigations into its cause, and any recommendations or strategies for prevention in future.
    7. The Supplier must inform Cape York NRM on the full details of:
      1. any suspected contravention of the WHS Laws relating to the goods and/or Works, within 24 hours of becoming aware of any such suspected contravention;
      2. any cessation or direction to cease work relating to the goods and/or Works, due to unsafe work, immediately upon the Supplier being informed of any such cessation or direction;
      3. any workplace entry by a WHS Entry Permit Holder, or an Inspector, to any place where the Works is being performed or undertaken, within 24 hours of becoming aware of any such workplace entry; and
      4. any proceedings against the Supplier or its officers, or any decision or request by the Regulator given to the Supplier or its personnel, under the WHS Laws, within 24 hours of becoming aware of any such proceedings, decision or request.
    8. Cape York NRMs Premises The Supplier must, when using Cape York NRMs premises or facilities, comply with all reasonable directions and procedures relating to Occupational Health, Safety and Security in effect at those premises or in regard to those facilities, as notified by Cape York NRM or as might reasonably be inferred from the use to which the premises or facilities are being put.
    9. Inductions
      1. The Supplier and all persons who will undertake work under these terms and conditions must ensure, prior to commencing work under these terms and conditions, that they have completed the relevant and applicable induction and induct all persons who will perform any work under these terms and conditions, to ensure compliance with all appropriate WHS standards, as required at law, corresponding to the work to be undertaken and the location where it is to be conducted.
      2. The Supplier must provide such evidence as Cape York NRM may require evidencing the Supplier and all persons who will undertake work under these terms and conditions compliance with all necessary WHS standards, procedures and legislative and regulatory requirements in relation to the specific work to be undertaken in the specific location it is to be conducted. This may include requiring the Supplier to provide a signed statement, to be accompanied by supporting documentation for each person who will undertake work under these terms and conditions, to Cape York NRM, detailing the WHS instruction given to all and any persons who will undertake work under these terms and conditions. If this statement or documentation is unsatisfactory to Cape York NRM, the Supplier can be required by Cape York NRM to conduct further instruction or inductions with its employees with regard to WHS, to the satisfaction of Cape York NRM
  11. Contamination or pollution
    1. The Supplier must conduct its operations in a manner that will prevent pollution or contamination. The Supplier must comply with the requirements of Cape York NRM’s environmental policies and any other project specific requirements relating to environmental management.
  12. Payment
    1. Cape York NRM will pay the Supplier the Price within 15 business days of the later of:
      1. the Date of Completion of the Works or delivery of goods;
      2. the date on which Cape York NRM receives a valid Tax Invoice from the Supplier for the Price;
      3. the date when funds allocated for the goods and/or Works are received from Government.
  13. Default of Supplier
    1. Subject to clause 13.2, if the Supplier fails to perform or observe any obligation, term, condition, warranty or stipulation contained or implied in the Purchase Order and on its part to be performed, then Cape York NRM may give a notice to the Supplier specifying the default and stating its intention, if the default is not remedied within the time stated in the notice, to proceed under clause 13.2.
    2. Without limiting any other right of Cape York NRM under the Purchase Order or at law, if the Supplier;
      1. without reasonable cause, wholly or substantially suspends delivery of goods or performance of the Works;
      2. fails to comply with a valid notice from Cape York NRM under these terms and conditions (including a notice under clause 13.1);
      3. becomes insolvent, bankrupt or makes an assignment of its estate for the benefit of its creditors, or attempts to enter into a scheme of arrangement, voluntary or otherwise, or being a company goes into liquidation; or
      4. fails to comply with the Code; then the Supplier shall be in substantial breach of these terms and conditions and Cape York NRM may immediately do any one or more of the following:
      5. suspend any payment due to the Supplier until the default has been remedied;
      6. take the remaining goods and/or Works wholly or partly out of the hands of the Supplier;
      7. terminate the Purchase Order.
  14. Compliance with law (including the Code) and change in Law
    1. The Supplier warrants that;
      1. it has complied, and will comply with all applicable law and give all notices and pay all fees and other amounts which it is required to pay in respect of the performance of its obligations under these terms and conditions; and
      2. without limiting clause 14.1.1, it is aware of, is compliant with, and will remain compliant for the term of the Purchase Order with all relevant requirements of the Code;
    2. The Supplier must immediately notify Cape York NRM in writing if the Supplier becomes aware at any time that it is no longer compliant with the Code.
      1. The Parties acknowledge that the Office of the Australian Building and Construction Commissioner is entitled to access to the Site, and any Documents and any personnel to monitor compliance with the Code.
  15. Notification of Claims
    1. To the extent permitted by law, Cape York NRM will not be liable for any Claim of any kind whatsoever by the Supplier arising out of or in connection with the Purchase Order, or pursuant to any principle of law or basis of law including but not limited to common law, equity and statute unless the Supplier has:
      1. given Cape York NRM notice in writing within five (5) days after the first occurrence of the events or circumstances on which the claim is based that it intends to make a claim; and
      2. within five (5) days after that notice provides Cape York NRM with a claim containing detailed particulars concerning the events or circumstances on which the claim is based and how they have affected the Supplier.
  16. Dispute Resolution
    1. Any dispute or difference between Cape York NRM and the Supplier must be resolved in accordance with this clause.
    2. If a dispute or difference arises between the Cape York NRM and the Supplier under these terms and conditions and one party requires it to be resolved, that party must promptly give the other party notice identifying and giving details of the dispute or difference.
    3. Within ten (10) days of a party receiving the notice referred to in clause 16.2, the parties will meet and, in good faith, attempt to resolve the dispute or difference.
    4. If the dispute is not resolved under clause 16.3, then the parties must meet again within a further ten (10) days and, in good faith, attempt to resolve the dispute or difference.
    5. If the dispute or difference is still not resolved, then either party may, by giving written notice to the other, refer the matter for determination by an expert.
    6. If a matter is referred for determination by an expert then;
      1. the expert will be chosen by the parties but in the absence of an agreement on the expert within (5) days of the notice referred to in clause 16.5, the expert will be appointed by the President for the time being of the Institute of Arbitrators and Mediators Australia (“IAMA”); and
      2. the expert determination will be governed by the IAMA Expert Determination Rules, save and except that the expert may not make any determination which is inconsistent with the Code.
    7. Subject to clause 16.8 a Party must not commence proceedings in respect of a dispute without first complying with all available procedures under this clause 16.
    8. Nothing in this clause will prejudice the right of a Party to seek injunctive or declaratory relief pursuant to these terms and conditions.
  17. Public, Confidentiality and Restricted Information
    1. The Supplier agrees not to disclose to any person other than Cape York NRM or the Commonwealth or State Government, any Information relating to the Purchase Order without prior approval in writing from the Government and or Cape York NRM which may impose any conditions or restrictions they consider appropriate when giving their approval and agrees to formalize such an undertaking if requested by Cape York NRM or the Government.
    2. The Supplier acknowledges that under the Purchase Order, Cape York NRM may be required to make public or disclose to the Government Documents relating to the Purchase Order.
    3. The Supplier may request that Information and Documents be kept confidential by Cape York NRM, and the funding body (the Commonwealth and/or State Government) or not be disclosed to the State and/or the Commonwealth. Such a request must be made in writing to Cape York NRM upon delivery of the Documents or upon obtaining or creating such Information or Documents and include reasons to support the request for confidentiality.
    4. The Supplier acknowledges that a request to keep Information or Documents confidential cannot be granted by Cape York NRM unless it is first granted by the funding body (Commonwealth or State Government and/or the Commonwealth).
  18. Intellectual Property
    1. The Supplier agrees to assign any and all Intellectual Property rights which may vest in the Supplier as a result of the Supplier carrying out the Works to Cape York NRM and agrees to formalize the assignment if requested by Cape York NRM.
  19. Moral Rights
    1. Any individual acting on behalf of the Supplier consents to any acts or omissions of Commonwealth or State Government or Cape York NRM that might otherwise constitute an infringement of the individuals Moral Rights. The Supplier indemnifies and keeps Commonwealth or State Government and Cape York NRM indemnified against any Claim that may arise as a result of any infringement of an individual’s Moral Rights.
  20. Severability and Waiver
    1. If any provision or sub-provision of these terms and conditions is voidable or unenforceable that provision or sub-provision will be severed and the rest of these terms and conditions will remain in full force and effect. Any waiver or relaxation by Cape York NRM partly or wholly of any provision of these terms and conditions is valid only if in writing and signed by Cape York NRM. Any such waiver or relaxation is restricted to its written terms and unless expressly stated otherwise applies to that particular occasion only, is not continuing and does not constitute a waiver or relaxation of any other provision.
  21. Goods and Services Tax
    1. If GST is imposed on any Supply made by a Party (“the First Party”) to the other Party (“the Second Party”) under these the Purchase Order, then the Second Party must pay, in addition to any GST exclusive consideration for the Supply payable by the Second Party, an additional amount calculated by multiplying the prevailing GST rate by that GST exclusive consideration.
    2. The First Party must provide the Second Party with a Tax Invoice for any Supply referred to in clause 21.1.
    3. The Supplier must use reasonable endeavours to assist Cape York NRM to claim any GST credit including a full input tax credit for any amount paid or allowed by Cape York NRM to the Supplier.
  22. Service of Notices
    1. A notice required pursuant to this Agreement must be in writing and be either sent by facsimile or email transmission, mail or delivered by hand.
    2. A notice to a Party must be addressed to that Party at the address or facsimile number last notified to the other Party.
    3. A notice sent by mail or delivered by hand is effective upon receipt.
    4. A notice sent by facsimile or email transmission is effective upon receipt of confirmation of successful transmission to the recipient unless it is transmitted after the close of normal business hours, or on a Saturday, Sunday, public holiday or 27, 28 or 29 December, in which case it is effective on the opening of business on the next business day at the intended place of receipt.
  23. Governing law and jurisdiction
    1. The Purchase Order is governed by and will be construed according to the laws from time to time in force in Queensland and the Parties irrevocably submit to the authority of the Queensland Courts.
  24. Clauses Surviving Termination
    1. Clauses 3.2, 4.1, 8.4, 8.5, 9.1.11, 9.1.13, 9.1.16, 10, 14, 15, 17, 18 and 19 survive the termination of this Agreement.