1. Terms and Conditions
1.1. These terms and conditions of purchase and the purchase order overleaf (Purchase Order), form the agreement (Agreement) between The Royal Australian College of General Practitioners Ltd (ABN 34 000 223 807) (RACGP) and the party identified in the Purchase Order (Supplier).
1.2. In this Agreement, Goods and Services mean the goods and services as described in the Purchase Order.
1.3. This Agreement may not be varied, novated, assigned or otherwise dealt with except by agreement in writing.
2.1. This Agreement will be accepted by the Supplier and become effective immediately upon the first to occur of: (a) the date on which the Supplier provides written acceptance to the RACGP (whether by electronic means or otherwise), or (b) the Supplier’s commencement of any work under this Agreement.
3. Entire Agreement
3.1. This Agreement, together with any attachments and documents incorporated by reference by the RACGP in this Agreement, constitutes the entire agreement between the Supplier and the RACGP with and supersedes all prior oral or written representations and agreements.
3.2. This Agreement will prevail if there is any conflict between them and the terms of any offer or any the terms or conditions contained on any invoice, delivery docket or similar document provided by the Supplier to the RACGP.
4. Delivery, Title and Risk
4.1. The Supplier must deliver the Goods or provide the Services to the RACGP as set out in the Purchase Order unless otherwise agreed in writing.
4.2. Time is of the essence and deliveries must be made in both the quantities and at times specified by the RACGP. The RACGP will not be required to pay for Goods that are in excess of the quantities specified in the Purchase Order.
4.3. Delivery of Goods will not be taken to have occurred unless and until the RACGP has signed a delivery receipt for those Goods. Services will not be deemed to have been completed until the RACGP confirms in writing that the Services have been performed to its reasonable satisfaction.
4.4. Risk in the Goods passes to the RACGP upon delivery in accordance with clause 4.1. Title to the Goods passes to the RACGP free of any liens, claims or other rights upon delivery of the Goods.
5.1. The price applicable to the Goods or Services is fixed and is set out in the Purchase Order.
5.2. Unless otherwise expressly provided in this Agreement, the price includes all packing costs, transport, insurance, loading, unloading and storage costs, duties, taxes (excluding GST) and other expenses associated with the provision of the Goods and Services.
5.3. The Supplier must obtain the benefit of any manufacturer’s warranties for the RACGP.
6. Acceptance of Goods and Services
6.1. If the Goods conform with the description and details in the Purchase Order (Specification), the RACGP will accept the Goods in writing.
6.2. If the Supplier fails to provide the Goods or Services in accordance with this Agreement, either upon delivery or at any time during any warranty period, the Supplier must, if the RACGP requires: (a) in the case of Goods, promptly remove those Goods from the RACGP’s premises and, at the RACGP’s election, either (i) promptly replace the Goods with goods which comply with this Agreement, (ii) refund to RACGP all money paid in respect of the removed Goods, or (iii) pay to the RACGP the cost of replacement Goods purchased by the RACGP from a third party; or (b) in the case of Services, and at the RACGP’s election, either (i) rectify any omission or defect, (ii) reperform the Services to comply with this Agreement, or (iii) refund to the RACGP all money paid in respect of the Services.
6.3. Payment is not evidence that the Goods or Services have been provided in accordance with this Agreement but must be taken only as payment on account.
7.1. The Supplier will invoice the RACGP on delivery or an agreed performance milestone. Each invoice must comply with applicable law.
7.2. Unless otherwise stated in the Purchase Order, the RACGP will pay the Supplier the price of the Goods or Services under this Agreement together with any applicable GST within 30 days of receiving from the Supplier an invoice that complies with A New Tax System (Goods and Services Tax) Act 1999 (Tax Invoice) together with such other information as the RACGP may reasonably require. The Tax Invoice must accurately describe the Goods or Services provided and quote the purchase order number described in the Purchase Order.
7.3. The RACGP does not retain any pay as you go withholding tax or superannuation guarantee contributions for payments made under this Agreement. The Supplier acknowledges that it is responsible for payment of any taxation liabilities, including superannuation guarantee contributions, arising out of payments made in accordance with this Agreement.
7.4. Despite clause 7.3, withholding tax will be retained and remitted to the Australian Taxation Office where an ABN is not supplied, and superannuation contributions will be made under this Agreement and remitted to the relevant superannuation fund if the Supplier is a sole trader.
7.5. On demand by the Supplier, the RACGP will pay simple interest on a daily basis on any overdue amount, at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).
7.6. For the purposes of clause 7.5, overdue amount means an amount (or part thereof) that (i) is not, or is no longer, disputed, or (ii) is due and owing under a Tax Invoice properly rendered by the Supplier in accordance with this Agreement and which has been outstanding for more than 30 days from the date of receipt of the Tax Invoice or the date that the amount ceased to be disputed, as the case may be.
8.1. When entering the RACGP’s premises, the Supplier must and must ensure that its employees and subcontractors take all necessary measures to protect people and property, prevent nuisance, act in a safe and lawful manner and comply with the RACGP’s standards and policies (including occupational health and safety policies and security policies and any safety training or induction provide by the RACGP).
9.1. The Supplier must not subcontract to any third person any of its obligations under this Agreement without the RACGP’s prior written consent and the Supplier remains fully liable and responsible for the performance of all its obligations and those of its subcontractors under this Agreement.
10. Intellectual Property Rights
10.1. All Intellectual Property Rights (IPR) in all materials (including trade marks, design files, documents, drawings, specifications, digital files and data) provided by the RACGP remains the property of RACGP and must not be used by Supplier except as required by the Purchase Order.
10.2. The Supplier assigns to the RACGP all right, title and interest in and to all IPR (including trade marks, design files, documents, drawings, specifications, digital files and data) that may arise as a result of or be developed in the course of providing the Services, , effective immediately on the creation of any such IPR.
10.3. The assignment under clause 10.2 will not include rights to any IPR developed by the Supplier or a third party prior to provision of the Services. The Supplier grants to the RACGP a perpetual, irrevocable, non-exclusive, royalty-free licence to use pre-existing IPR (whether owned by the Supplier or not) as required to enable the RACGP to use the Goods and/or Services as contemplated in this Agreement.
10.4. If the provision of Goods and Services involves any photographs, images and sound recordings to which the Supplier, its subcontractors or personnel has contributed or appeared, the Contractor grants the RACGP a perpetual, irrevocable, non-exclusive, worldwide, royalty free licence to use including the right of sub-licence, to use, reproduce, publish, adapt and exploit such materials in any manner it requires for both internal and commercial purposes.
10.5. The Supplier must do all things necessary to obtain all rights to intellectual property referred to in clauses 10.2 and 10.3 including, where necessary, obtaining an assignment from any sub-contractor or personnel.
10.6. The Supplier must ensure that in relation to moral rights in works created in providing the Services, it procures from its employees or subcontractors who perform the Services, written consent for the RACGP and its licensees to use the works for the purpose for which the works were created and in the ordinary operation of the RACGP’s business: (a) without attribution of authorship to the author; (b) bearing the name of the project or the RACGP; and (c) even if it results in "derogatory treatment" which may be prejudicial to the author’s honour or reputation. In this clause 10.6 “work” has the meaning given in Part IX of the Copyright Act 1968. Service Provider must ensure that any consent given under clause 10.6 is genuinely given and not obtained by duress or by the making of any false or misleading statement.
10.7. The Supplier must not make any public announcement relating to this Agreement or use the name, logo or trade marks of the RACGP in any promotional or marketing materials including on its website without the RACGP’s prior written consent.
11. Confidentiality & Privacy
11.1. Confidential Information means any technical, commercial, financial, clinical or other information of or about the RACGP, to which the Supplier gains access in connection with this Agreement. The Supplier and its employees, agents, directors, partners, shareholders and consultants must not disclose or make available to any other person any Confidential Information and must not use the Confidential Information except as necessary for the purposes of this Agreement.
11.2. The Supplier acknowledges that it must comply with the Privacy Act 1988 (Cth) with respect to any act done in connection with the provision of the Goods and Services; and will not do any act or engage in any practice that contravenes the Privacy Act 1988 (Cth) in respect of any data collected, held, used, managed, disclosed or transferred by the Supplier, on behalf of the RACGP.
11.3. The Supplier will notify the RACGP of any suspected data breach, whether or not connected with this Agreement, as soon as practicable.
12. Warranty and Indemnity
12.1. The Supplier warrants that: (a) it engages under this Agreement as an independent contractor; (b) neither it or nor any of its personnel have any conflict of interest as to its provision of the Goods or Services and no conflict is likely to arise; (c) it has the right to sell and transfer title to and property in the Goods to the RACGP; (d) it is entitled to use and deal with any IP Rights which may be used by it in connection with the provision of the Goods and Services; (e) unless otherwise clearly stated on the front of the Purchase Order, the Goods are new and of merchantable quality; (f) in producing or providing the Goods or Services it must have at all times complied with the requirements of the Occupational Health and Safety Act 2004 (Vic) and have fully paid any WorkCover premiums; (g) all Goods and Services; (i) will conform in all respects with the description in the Purchase Order and Specification (including any warranty period in relation to Goods); and (ii) will be fit for the purpose stated in the Specification (or, if no purpose is stated, in the case of Goods, the purpose for which the Goods would ordinarily be used).
12.2. The Supplier will indemnify the RACGP and each of its employees and agents against any loss, damage, claim, action or expense (including without limitation legal expense) suffered as a result of: (a) any warranty given by the Supplier in this Agreement being incorrect or misleading in any way; (b) the supply of the Goods or the provision of the Services; or (c) any fraud or negligence of the Supplier or any of its employees, agents, officers or subcontractors.
13. Compliance with Law and Policy
13.1. The Supplier must, in providing the Goods and Services under this Agreement, comply with all applicable laws, regulations and codes in force in Australia.
13.2. The Supplier further represents that neither it nor any of its subcontractors will utilise slave, prisoner or any other form of forced or involuntary labour in the supply of goods or provision of services under this Agreement. At the RACGP’s request, the Supplier must certify in writing its compliance with the foregoing. The Supplier indemnifies and holds the RACGP harmless from and against any liability claims, demands or expenses (including legal or other professional fees) arising from or relating to the Supplier’s noncompliance.
14. Termination for Cause
14.1. The Supplier may immediately terminate all or part of this Agreement, without liability, if the RACGP: (a) breaches of a term of this Agreement capable of rectification that it fails to remedy within 28 days of the receipt of a notice in writing specifying the breach; (b) states its intention not to perform or otherwise rejects its obligations under this Agreement other than by an exercise of its rights under Paragraph 15.
14.2. The RACGP may immediately terminate all or part of this Agreement, without liability, if the Supplier: (a) breaches of a term of this Agreement capable of rectification and fails to remedy the breach within 28 days of the receipt of a notice in writing specifying the breach; (b) states its intention not to perform or otherwise rejects its obligations under this Agreement; or (c) has a change of direct or indirect ownership without the RACGP’s prior consent.
14.3. The RACGP will pay the fees for the Goods and Services properly provided until termination but will not be liable for any costs as a consequence of termination. The termination or expiry of this Agreement will not prejudice any right of action or remedy which may have accrued to either party prior to termination.
15. Termination for Convenience
15.1. In addition to any other rights of the RACGP to terminate this Agreement, the RACGP may, at its option, terminate all or any part of this Agreement on 60 days’ notice, at any time and for any reason, by giving written notice to the Supplier. Upon such termination, the RACGP will pay to the Supplier the following amounts without duplication:(a) the price for all Goods or Services that have been completed in accordance with this Agreement; and(b) the actual costs of work-in-process and materials incurred by the Supplier in furnishing the Goods or Services under this Agreement to the extent such costs are reasonable in amount and are properly aportionable under generally accepted accounting principles to the terminated portion of this Agreement; less the cost of any non-merchantable Goods or materials.
15.2. The RACGP will make no payments for finished Goods, Services, work-in-process or materials fabricated or procured by the Supplier in amounts unreasonably in excess of those authorized in delivery releases nor for any undelivered Goods that are in the Supplier’s standard stock or that are readily marketable.
15.3. Payments made under this Paragraph will not exceed the aggregate price payable by the RACGP for finished Goods or Services that would be produced or performed by the Supplier. Except as provided in this Paragraph, the RACGP will not be liable for and will not be required to make payments to the Supplier for loss of anticipated profit, unabsorbed overhead, interest on claims, product development costs, facilities rearrangement costs or rental, unamortized depreciation costs, or administrative burden charges from termination of this Agreement.
15.4. Within 30 days from the effective date of termination, the Supplier must submit its termination claim to the RACGP, with sufficient supporting data to permit the RACGP to assess the claim, and thereafter promptly provide any additional, supplemental and supporting information as the RACGP requests. The RACGP or its agents shall have the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to the Supplier’s termination claim.
16.1. The Supplier must maintain policies of insurance (with a reputable insurer on terms acceptable to the RACGP) sufficient to cover any loss or costs that may be incurred and for which the Supplier is liable in connection with the supply of the Goods or Services under this Agreement, including professional indemnity insurance for not less than $10m for each and every occurrence, public and products liability insurance for not less than $10m for each and every occurrence on an occurrence basis and workers compensation insurance as required by law. The Supplier must provide evidence of the currency of such insurance policies on request.
17. Audit and Benchmarking Rights
17.1. The Supplier grants the RACGP access to the Supplier’s premises and books and records for the purpose of (a) auditing the Supplier’s compliance with the terms of this Agreement, including inspecting or conducting an inventory of all work to be provided pursuant to this Agreement located at the Supplier’s premises and (b) benchmarking against like Goods or Services. The Supplier will cooperate with the RACGP so as to facilitate the RACGP’s audit, including, without limitation, by segregating and promptly producing such records as the RACGP may reasonably request, and otherwise making records and other materials accessible to the RACGP.
17.2. The Supplier will preserve all records relevant to this Agreement, and the Supplier’s performance under this Agreement, for a period of not less than three year after the RACGP’s final payment to the Supplier.
17.3. Any audit, inspection, benchmarking or review conducted by the RACGP or its representatives will not constitute acceptance of any Goods (whether in progress or finished), relieve the Supplier of any liability under this Agreement or prejudice any rights or remedies available to the RACGP.
18. Governing Law and Jurisdiction
18.1. This Agreement is governed by the laws of Victoria, Australia, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and any conflict of law provisions that would require application of another choice of law and the parties submit to the jurisdiction of the courts of Victoria, Australia and those courts entitled to hear appeals for determining any dispute between the parties relating in any way to this Agreement.