general conditions of contract for consultancy definitions in this contract, except where the...

General conditions of

contract for consultancy

July 2012 Version

2012 Water Corporation

Except as permitted under the Copyright Act 1968 (Cth), no part of this publication

may be reproduced, stored in a retrieval system, or transmitted in any form or by

any means electronic, mechanical, photocopying, recording or otherwise, without the

prior written permission of the Water Corporation.

Inquiries should be addressed to the Manager Contracts.

Contents

1 Definitions .......................................................................................... 1

2 Interpretation ..................................................................................... 3

3 Construction of Contract ..................................................................... 3

4 Service of Notices ............................................................................... 4

5 Representatives .................................................................................. 4

6 Evidence of Contract ........................................................................... 4

7 General obligations ............................................................................. 4

8 Personnel ........................................................................................... 5

9 Parking ............................................................................................... 5

10 Quality assurance ............................................................................ 5

11 Geocentric Datum of Australia (GDA) compliance ............................ 5

12 Occupational safety and health ........................................................ 5

13 Insurance ........................................................................................ 6

14 Copyright and other intellectual property ......................................... 7

15 Limitation of liability ........................................................................ 8

16 Indemnity by consultant .................................................................. 9

17 Confidentiality ................................................................................. 9

18 Time and progress ......................................................................... 10

19 Directions and variations ............................................................... 11

20 Payment ........................................................................................ 11

21 Termination ................................................................................... 12

22 Dispute resolution ......................................................................... 14

23 Conflict .......................................................................................... 15

Annexure Part A - clause item details

Annexure Part B - confidentiality undertaking

Annexure Part C - pecuniary interest declaration

1

Definitions In this Contract, except where the context otherwise requires:

Item: means an Item in Annexure Part A to these General Conditions of Contract;

Approvals: means certificates, licences, consents, permits, approvals and

requirements made or authorised by a Commonwealth, State, Territory or local

government, or by a legislative requirement;

Bid: means the written offer by the Consultant to perform the Services;

Brief: means the documentation provided by the Principal (or provided by the

Consultant and accepted by the Principal) setting out the Services to be provided and

the purpose thereof;

Claim: means, in relation to any claim against the Principal, any action, suit, claim,

proceeding and demand of any nature howsoever arising out of, relating to or

connected with the Contract, made or to be made or that might be made against the

Principal;

Commencement date: means the date on which the Consultant is required to

commence the Services as shown in Item 13;

Consultant: means the party whose bid is accepted by the Principal and includes

that party’s successors and permitted assigns;

Contract: means the agreement between the parties evidenced as described in

clause 6;

Date of acceptance: means the date of written acceptance of the Consultant’s bid

or, where that acceptance is in the form of a Principal’s purchase order, the date of

issue of that order;

Day: means calendar day;

Deliverables: means those documents and things required under this Contract to be

handed over to the Principal by the Consultant;

Direction: means any agreement, approval, assessment, authorisation, decision,

determination, explanation, instruction, order, permission, rejection, request or

requirement given or made by the Principal;

Documents: includes information stored by electronic and other means;

Fee: means the money payable under this Contract for the performance of the

Services as adjusted in accordance with this Contract (excluding expenses and

disbursements);

Force majeure: means an event or circumstance which:

(a) is beyond the reasonable control of either party,

(b) is not caused by either party,

(c) can occur with or without human intervention, and

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(d) was not reasonably foreseeable by the parties at the time of entering into this

Contract,

the consequences of which could not have been reasonably prevented by the party

affected;

GST: means the tax payable on a taxable supply under A New Tax System (Goods

and Services Tax) Act 1999 (Cth) (GST Act) and any related legislation;

Intellectual property right: means all intellectual and industrial property rights

existing anywhere in the world including:

a) copyright and related rights;

b) any invention, patent, design, semi-conductor, circuit layout, trade mark,

service mark, know how, trade secret, geographical indication, the right to have

confidential information kept confidential, protection against unfair competition,

and any other rights of a similar nature; and

c) any application or right to apply for registration of any of those rights;

Key personnel: means those persons stated as key personnel in Item 6 and

replacements for such persons approved by the Principal in accordance with clause

9.2;

Legislative requirements: means legislation and subordinate legislation of the

Commonwealth of Australia or the State or Territory applicable to the Services, and

any instruments made under such legislation or subordinate legislation;

Loss means, subject to clause 17.1, any loss, damage, cost, charge, expense,

diminution in value or deficiency of any kind or character that a party pays, suffers or

incurs, or is liable for, including:

a) all interest and other amounts payable to third parties; and

b) all legal (on a full indemnity basis) and other expenses incurred in connection

with investigating or defending any claim or action, whether or not resulting in

any liability and all amounts paid in settlement of any claim;

Personnel: means persons (including key personnel and persons provided by sub-

consultants under the Contract), involved in the provision of the Services (or part

thereof) on behalf of the Consultant;

Principal: means the Water Corporation, a statutory body corporate created by the

Water Corporation Act 1995 (WA), its successors and assigns;

Services: means the services to be performed or carried out by the Consultant as

described in the Contract, including the supply of the deliverables;

Site: means the Principal’s premises or any other place the Principal designates

(other than the Consultant’s premises) for the performance of the Services;

Variation: means a change in the Services directed by the Principal as described

in clause 21;

and like word have a corresponding meaning.

3

Interpretation In this Contract, except where the context otherwise requires,

(a) a reference to a person includes a company, partnership, joint venture,

association, corporation or other body corporate and any governmental agency;

(b) includes and including are not words of limitation;

(c) a reference to legislative requirements includes all amendments, re-enactments

and replacements to legislative requirements;

(d) if a word is defined, another part of speech or grammatical form of that word

has a corresponding meaning;

(e) words in the singular include the plural and words in the plural include the

singular, according to the requirements of the context, and

(f) words importing a gender include every gender.

Construction of Contract (a) The Contract is governed by and will be construed in accordance with the laws

of the State of Western Australia. The parties agree to submit to the exclusive

jurisdiction of the courts of the State of Western Australia and the courts having

appellate jurisdiction from those courts;

(b) the clause headings in the Contract shall not form part of, nor be used in the

interpretation of the Contract;

(c) if the time for giving any notice, making any payment or doing any other act

required or permitted by the Contract, falls on a Saturday, Sunday or Statutory

or Public Holiday, then the time for giving the notice, making the payment or

doing the other act shall be deemed to be on the day next following which is not

a Saturday, Sunday or Statutory or Public Holiday;

(d) unless otherwise provided, prices are in Australian dollars;

(e) communications between the Principal and the Consultant shall be in the

English language;

(f) the Contract constitutes the entire agreement between the parties for the

provision of the Services by the Consultant and supersedes any prior

negotiations, arrangements, agreements, representations or undertakings

between the parties, whether written or oral;

(g) the waiver of a breach by another party of any provision of the Contract does

not operate as a waiver of another provision or as a continuing breach by that

party of that provision;

(h) any failure by either party to enforce any provision of the Contract or any delay

or indulgence granted by either party to the other will not be construed as a

waiver of the first mentioned party's rights under the Contract;

(i) none of the terms of the Contract will be varied, waived, discharged or released

either at law or in equity, except by the express written agreement of the

parties;

(j) the Principal may exercise the rights conferred by the Contract in addition to

any other rights or remedies that the Principal is or may be entitled to against

the Consultant, whether at law or under the Contract;

(k) the rights, duties and remedies granted or imposed under the provisions of the

Contract operate to the extent not excluded by law;

(l) if any provision of the Contract is or becomes for any reason invalid or

unenforceable at law, that provision will be deemed severed from the Contract

without affecting the remainder of the Contract and that remainder will continue

to be valid and enforceable in all things;

(m) in the interpretation of this Contract, no rule of construction applies to the

disadvantage of one party on the basis that the party put forward or drafted

this Contract or any provision in it;

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(n) To the extent permitted by law, if either party consists of one or more persons,

this Contract binds such persons and their respective executors, administrators,

successors and permitted assigns jointly and severally and this Contract shall be

read and construed accordingly; and

(o) Part 1F of the Civil Liability Act (WA) 2002 is excluded from application to this

Contract.

Service of Notices A notice shall be deemed to have been given when it is received by the person to

whom it is addressed or is delivered to the address of that person stated in the

Contract or any other address as may be notified in writing to the party giving notice

by the intended recipient but in any event to the last notified address.

The Principal and the Consultant shall each notify the other of a change of address.

Representatives Principal’s Representative

The person named in Item 3 or such other person as advised in writing from time

to time to the Consultant by the Principal, shall act as the Principal’s

representative for all matters under the Contract.

Consultant’s Representative

The person named in Item 4 or such other person as advised in writing from time

to time to the Principal by the Consultant shall act as the Consultant’s

representative and any direction given by the Principal to the Consultant’s

representative shall be binding on the Consultant.

Evidence of Contract The written acceptance by the Principal of the Consultant’s Bid, together with all

documents or parts of documents referred to therein or to which reference may

properly be made to ascertain the rights and obligations of the parties, shall

evidence the Contract and the Consultant shall not be entitled to rely upon or

enforce any representation made by or on behalf of the Principal prior to the date

of acceptance of the bid other than those contained in the Contract. If a formal

instrument of agreement is required by the documents evidencing the Contract,

the Principal shall prepare such an instrument and send it to the Consultant within

28 days of the date of acceptance. Having satisfied itself as to the correctness of

the instrument of agreement, the Consultant shall execute and return it to the

Principal within 14 days of receipt, or such other time as the Principal may

approve in writing.

Notwithstanding any other provision of the Contract, the Consultant shall not be

entitled to payment until such copies are properly executed and returned by the

Consultant.

General obligations The Consultant shall ensure that the Services are such as to achieve the purpose

set out in the brief and must perform the Services in a skilful, competent,

conscientious, expeditious and professional manner and in conformity with the

Contract. Where the Consultant is required to provide or utilise equipment, the

Consultant must ensure that the equipment is suitable for the Services and

maintain the equipment in good, safe and proper working condition at all times.

Where the personnel utilise equipment provided by the Principal or others, the

5

equipment must be utilised in accordance with the instructions from the

manufacturer of the equipment. The Principal shall:

(a) pay the Consultant in accordance with the Contract;

(b) provide the Consultant with information and documents sufficient for the

performance of the Services; and.

(b) provide such access to the site as is reasonably necessary for the Consultant

to carry out the Services.

Law and approvals

The Consultant shall comply with and bear the cost of all fees and charges

required to comply with all legislative requirements; and approvals (except those

stated in Item 5) in carrying out the Services.

Personnel Personnel Generally

If the Principal reasonably considers any personnel carrying out the Services are

acting dishonestly, in an unprofessional manner or negligently or are otherwise

not suitable to carry out the Services, the Principal may direct the Consultant to

replace such personnel and the Consultant shall comply at its own cost.

Key Personnel

The Consultant shall provide key personnel to perform the Services stated in

Item 6. If any of the key personnel is not available due to circumstances beyond

the reasonable control of the Consultant, the Consultant shall promptly notify the

Principal and arrange a replacement which must be approved by the Principal

(such approval shall not be unreasonably withheld or delayed).

Parking The Principal will not provide parking facilities at the Principal’s premises for any

of the personnel.

Quality assurance If the Consultant stated in its bid that it held or met any quality system

certification required by the Principal, the Consultant shall maintain that quality

system certification in full force and effect for the term, and any extended term,

of the Contract.

Geocentric Datum of Australia (GDA) compliance All information containing geospatial data submitted by the Consultant shall

comply with either the Map Grid of Australia 1994 (MGA94) or the GDA

compatible Project Grids, for example, Perth Coastal Grid 1994 (PCG94), or both.

The GDA based coordinate system used shall be prominently shown in information

provided by the Consultant (e.g., shown in the Title Block of a paper plan, defined

internally within a digital file or specified in a companion document).

Occupational safety and health The Consultant shall, when on the site or when using the Principal’s facilities,

comply with all of the Principal’s directions, procedures and policies relating to

occupational health, safety and security requirements, which are available on

request. Neither party shall assign the Contract or any payment or any other right or,

benefit or interest under the Contract without the others prior written consent,

which shall not be unreasonably withheld.

6

Where approval to sub-contract is given by the Principal the approval does not in

any way relieve the Consultant from full and entire responsibility to duly and

punctually observe, perform and comply with the Consultant’s obligations under

the Contract.

Approval to subcontract may be subject to:

(a) the subcontract being subject to the terms and conditions of the Contract in

so far as they may apply;

(b) the Consultant obtaining from the subconsultant the corresponding

intellectual property rights granted to or vested in the Principal pursuant to

Clause 16.1;

(c) the Consultant obtaining from the subconsultant appropriate professional

indemnity insurance; and

(d) the subcontract containing a provision that any subconsultant shall exclude

part 1F of the Civil Liability Act (WA).

The Consultant shall if requested by the Principal provide copies of the proposed

subcontract documents without prices.

Insurance Requirement to Effect and Maintain

The Consultant shall, at its own expense, effect and maintain all insurances

required by law and the following subclauses to this clause 15.

The insurance policies shall note the Principal, as a client, as an interested party.

Professional Indemnity Insurance

Professional indemnity insurance shall:

(a) be for not less than the amount stated in Item 7(a);

(b) shall be maintained for the period stated in Item 7(b); and

(c) shall allow for one automatic reinstatement of the sum insured.

Public Liability Insurance

Public Liability Insurance shall:

(a) cover liability to any third party including death, bodily injury, loss of

and damage to property arising out of anything done or omitted to

be done; and

(b) be for a limit of liability in respect of each occurrence of not less

than the amount stated in Item 8.

Insurance of Employees

Worker’s compensation insurance shall insure the Consultant against its statutory

and common law liability for death or injury to its personnel and shall, to the

extent permitted by law, be extended to provide indemnity for the Principal’s

statutory and common law liability to the Consultant’s employees.

The Consultant must also ensure that all subconsultants maintain similar

insurance for the duration of the Contract.

7

However, if the Consultant:

(a) is a natural person and carries out Services for the Principal

pursuant to this Contract, the natural person shall be covered under

the Principal’s workers’ compensation insurance against liability for

death or injury arising out of or in connection with the carrying out

of the Services; or

(b) has a working director (without workers’ compensation insurance

coverage) and that working director carries out Services for the

Principal pursuant to this Contract, the working director shall be

covered under the Principal’s workers’ compensation insurance

against liability for death or injury arising out of or in connection

with the carrying out of the Services.

Further to Clause 15.4(a) and (b), if requested by the Principal and

notwithstanding termination or completion of the Contract, the Consultant shall

promptly provide all information requested by the Principal which the Principal

requires in order for the Principal’s insurer to determine the premiums for the

Principal’s workers’ compensation insurance coverage, including an estimate of

the value of the Services carried out for the Principal as a percentage of its total

work for the relevant period (which information shall not be used for any other

purpose and shall be kept confidential).

Motor Vehicle Third Party Insurance

Motor vehicle third party liability policy shall cover damage to motor vehicles and

other property for an amount in respect of any one occurrence of not less than

the sum in Item 9.

Proof of Insurance

Within 7 days of the commencement date and whenever subsequently requested

in writing by the Principal, the Consultant shall provide the Principal with

satisfactory evidence to demonstrate that the insurances required under the

Contract have been effected and are being maintained.

Notification of Death or Injury

The Consultant shall notify the Principal:

(a) of any injury to or death of any of its personnel or other person

whilst carrying out the Services, forthwith upon its occurrence; and

(b) any other circumstances or incidents arising or occurring, which may

give rise to a claim against the Principal, within 48 hours of its

occurrence.

Copyright and other intellectual property Ownership of Intellectual Property

(a) All existing intellectual property rights owned or held by a party at

the date of acceptance remains the property of that party.

(b) The Principal will own all new intellectual property rights created by

the Consultant as a result of undertaking the Services under the

Contract.

(c) intellectual property rights used in the Services but arising from the

activities of either of the parties after the date of acceptance but

outside the Contract shall remain the property of the party that

originally owned that intellectual property right.

Licensing

8

The Principal will grant the Consultant a non-exclusive, personal, non-

transferable, royalty free, worldwide licence to use such new intellectual property

right created by the Consultant for its own purposes.

The Consultant will grant to the Principal or cause to be granted to the Principal a

non-transferable royalty free, perpetual, irrevocable licence to use all of the

Consultant’s intellectual property rights used in the Services for its own internal

purposes.

If a third party’s intellectual property right forms part of the Services, is used in

the Services or is necessary for the proper functioning or operation thereafter,

the Consultant must obtain non-exclusive, perpetual, irrevocable paid up licence

from the third party for the Consultant and the Principal to use that third party

intellectual property right.

Warranty and indemnity

(a) The Consultant warrants that it is the legal and beneficial owner of

all existing intellectual property rights (or pursuant to clause 16.2

has licence to use such rights) that it provides or is required to be

provide for the Services and that use by the Principal of the

Consultant’s existing intellectual property rights does not infringe

any patent, copyright, design or trademark (foreign or domestic),

intellectual property rights or any other rights of a third party.

(b) The Principal warrants that it is the legal and beneficial owner of all

existing intellectual property rights, or holds a licence to use such

intellectual property rights, that it provides or is required to be

provide for the Services and that use by the Consultant of those

intellectual property rights does not infringe any patent, copyright,

design or trademark (foreign or domestic), intellectual property

rights or any other rights of a third party.

(c) The parties indemnify each other from all claims and any loss

arising from any breach by either of them of this clause 16.3.

Publication of Deliverables

The Consultant may use the deliverables in industry or scientific research and

publication of industry or scientific papers with the prior written consent of the

Principal. If the deliverables do not contain any commercially sensitive

information, confidential information or intellectual property right of the Principal,

the Principal shall not unreasonably withhold its consent.

Consultant’s Record of Deliverables

Notwithstanding any other provisions of the Contract, the Consultant may retain

a copy of the deliverables for its records.

Limitation of liability Limitation of Liability

Notwithstanding any other provision of the Contract:

(a) the Principal’s total liability to the Consultant for all claims (other

than claims for personal injury or death) arising out of, or in

connection with the Contract (other than the obligation to pay under

Clause 7(a) is limited to the greater of:

(i) the amount stated in Item 10; or

ii) any amounts the Principal is able to recover under any

insurances taken out under the Contract;

9

(b) the Consultant’s total liability to the Principal for all claims (other

than claims for personal injury or death) arising out of or in

connection with the Contract is limited to the greater of:

(i) the amount stated in Item 11; or

(ii) any amounts the Consultant is able to recover under any

insurances taken out under the Contract, or which it would

have been able to recover if the insurances had been taken

out, or which it would have been able to recover under the

insurances, in either case, but for any act, failure or omission

by the Consultant; subject always to the Consultant’s total

liability not exceeding the amount of insurance cover specified

in clause 15 and Annexure Part A and

(c) neither party is liable to the other for any indirect, consequential,

special, contingent or penal loss or damage, including but not limited

to loss of use, loss of profit, loss of revenue or cash flow, loss of

reputation, loss of opportunity or loss of anticipated savings.

Indemnity by consultant The Consultant shall indemnify the Principal against any loss or claim, whether

arising at common law, in equity or under any statute, which the Principal suffers

or incurs arising out of or in connection with the Services, except to the extent

the loss or claim occurs as a result of the sole negligence of the Principal.

Confidentiality The Consultant must treat as confidential and use its best endeavours to ensure

that the personnel treat as confidential, all information disclosed or made known

to the Consultant or the personnel by the Principal, or acquired or developed by

the Consultant or the personnel, during the course of or for the purposes of the

Contract (Confidential Information).

Without limiting the generality of this clause 19, the Confidential Information

includes computer programs, client lists, the Principal’s methods of operation,

details of clientele and potential clientele of the Principal and details relating to

bids, bidders and contracts of the Principal.

Within 2 days of the completion of the Services or the prior termination of the

Contract, the Consultant must deliver and use its best endeavours to ensure that

the personnel deliver to the Principal all documents and materials relating to the

Confidential Information which is in the Consultant’s or the personnel’s

possession, custody or control at that time. The Consultant may retain one copy

of the Confidential Information for record and insurance purposes only, which

must at all times be held under confidential cover in compliance with the

provisions of this clause 19.

Without limiting the generality of this clause 19, the Consultant must use its best

endeavours to ensure that the personnel do not use or disclose or authorise the

use or disclosure of the Confidential Information to any person or company

without the prior written consent of the Principal.

The Consultant is not obliged to treat information as confidential in the following

circumstances where:

10

(a) it would be unconscionable to require the Consultant to treat the information

confidentially;

(b) it would be an invalid restraint of trade under the law of the State of

Western Australia to require the Consultant to treat the information

confidentially;

(c) it is previously known to the recipient or is or becomes public knowledge

(other than due to a breach of this Contract);

(d) it is independently generated or rightfully received from a third party not

under a duty of confidentiality;

(e) it is made available to a third party without a similar restriction applying;

(f) it is required by law to be communicated to a person who is authorised by

law to receive that information;

(h) at the material time, it is in the public domain; or

(g) it is trivial or obvious;

The operation of this clause 19 survives the completion or termination of the

Contract.

In the event that the Principal so directs, the Consultant must cause all personnel

undertaking the Services to properly sign the Principal’s Confidentiality

Undertaking in the form set out in Annexure Part B.

Time and progress Time and Program

The Consultant shall proceed with the Services under the Contract with due

expedition and without delay.

The Consultant shall, where stated in Item 12 and within the time and in the

form stated, submit to the Principal a program for carrying out the Services.

The Consultant shall commence the Services on the date or within the period

stated in Item13.

The Consultant shall complete the Services or the defined parts of the Services

by the dates or within the periods stated in Item 14 or as extended by the

Principal under clause 20.2.

Extension of time

If the Consultant is delayed in completing the Services:

a) as a result of circumstances beyond the reasonable control of the

Consultant;

b) as a result of a variation or the combined effects of more than one

variation; or

c) by reason of an act or omission of the Principal, other than as a result of

any act or omission of the Consultant;

the Principal may at its absolute discretion extend the completion date. The

Consultant must notify the Principal of the delay and its cause as soon as it

becomes aware of the delay. Within 7 days after the Consultant becomes aware

of the delay or its cause it must provide reasonable evidence of the cause and

duration of the delay.

Delay Costs

The Principal shall pay any reasonable costs incurred by the Consultant as a

result of an extension of time but only to the extent that the delay was not the

11

result of any act of the Consultant or its personnel, agents or other

subconsultants;

Directions and variations Directions by the Principal

Any direction by the Principal may be given orally but shall be confirmed in

writing within two days. The Consultant shall not be bound to follow an oral

direction if it is not confirmed in writing.

Variations

The Principal may vary the source, form, quality or quantity of the Services or

any part of the Services that the Principal deems necessary, provided always that

such variations must not (without the agreement of the Consultant) change the

general scope or nature of the Contract. The Consultant must not vary the

Services without a prior written direction from the Principal.

Variations will be valued by agreement between the Principal and the Consultant.

However, if such agreement can not be reached by the parties with regards to

the valuation of a variation, the variation shall be valued by the Principal using

the applicable rates and prices contained in the Contract or, where the Contract

does not contain such rates or prices, then reasonable relevant rates, prices,

expenses and disbursements.

No variation will vitiate the Contract.

The value of the variation will be taken into account in determining the final

amount payable to the Consultant under the Contract.

Errors or Omissions in the Deliverables

The Consultant shall correct errors or omissions in the deliverables at the

Consultant’s own expense.

Payment Claims for Payment

Claims for payment shall be in writing and shall be provided at the times stated

in Item 15. Claims shall include details of the Services performed and shall

separately identify expenses, disbursements and reimbursements.

Payment of Fees, Disbursements and Expenses

Payment of fees shall be made in accordance with Item 16(a). Expenses and

disbursements shall be reimbursed to the Consultant in accordance with the

details shown in Item 16(b).

Payment of moneys shall not be evidence of the value of work or an admission of

liability or evidence that the Services have been executed satisfactorily but shall

be a payment on account only.

Time and Place for Payment

Payments shall be made within the times and at the place stated in Item 17(a)

and 17(b) respectively.

If the Principal assesses the amount due as being less than the amount claimed

in a claim for payment it shall provide a written explanation to the Consultant by

the time for payment of that claim.

Interest on Overdue Payments

If any moneys due and payable remain unpaid by the date for payment the

Consultant may claim interest thereon at the rate stated in Item 18.

12

Timesheets

If Item 16 provides for the fees to be determined on a time charge or similar

basis, the Consultant:

(a) shall maintain a “timesheet system”, recording hours worked by

each of its personnel carrying out the Services; and

(b) shall provide summary information (in a format approved by the

Principal) of hours worked by each of its personnel, with the

Consultant’s claims for payment.

Goods and Services tax

The parties confirm that they are both registered for GST pursuant to the GST

Act and that should either of them cease to be so registered it shall inform the

other at the earliest opportunity.

If the Consultant fails to provide to the Principal an Australian Business Number,

the Principal shall deduct “Pay As You Go” tax, at the top marginal rate from any

payment due to the Consultant under the Contract and remit the amount of that

tax to the Australian Taxation Office for the benefit of the Consultant.

Right to Deduct Moneys from Payments

The Principal may elect that moneys due and owing otherwise than in connection

with the subject matter of the Contract also be due to the Principal pursuant to

the Contract.

Termination Convenience

The Principal may, at any time, terminate the Contract by giving seven (7) days

prior written notice to the Consultant. On receipt of a notice of termination the

Consultant must:

a) cease performing the Services in accordance with and to the extent

specified in the notice of termination;

b) immediately do everything possible to mitigate any costs incurred or

which may be incurred as a result of the termination; and

c) take any other action relating to termination that the Principal may

reasonably require.

On termination of the Contract the Principal will pay to the Consultant the

reasonable and substantiated costs incurred by the Consultant directly

connected with the Services prior to the date of termination or any instructions

given by the Principal under clause 23.1(c) less any monies already paid to the

Consultant or otherwise due from the Consultant to the Principal under the

Contract.

Force Majeure

Neither party is responsible for any delay or failure to perform its obligations

under the Contract if the delay or failure is attributable to force majeure. Should

the performance by either party of its obligations under the Contract be

prevented or adversely affected by force majeure, that party must, as soon as

possible, give a written notice to the other party of the force majeure and the

likely impact on the performance of that party's obligations under the Contract.

In the event of the happening of force majeure which delays the performance by

the Consultant of the whole or a substantial part of the Contract for more than 21

days, the Principal has the right to terminate the Contract by giving the

13

Consultant 7 days written notice of termination under which circumstance the

provisions of clause 23.1 shall prevail.

Insolvency

Despite anything in the Contract to the contrary, the Principal may by written

notice to the Consultant terminate the Contract at any time with immediate effect

upon the happening of any one of the following events:

(a) the Consultant enters into a deed of company arrangement or an

order is made for the Consultant to be wound up;

(b) a receiver or receiver/manager or controller or administrator is

appointed for the Consultant;

(c) the Consultant is placed under official management;

(d) the Consultant resolves by a special resolution that it be wound up

voluntarily;

(e) a mortgagee of any of the Consultant’s property takes possession of

any of that property;

(f) the Consultant being a natural person, or the Consultant being a

partnership, a partner of that partnership, becomes bankrupt or a

party, as a debtor, to a deed of assignment, a deed of company

agreement or a composition under Part X of the Bankruptcy Act

1966 (Cth).

Termination due to Default by Either Party

If either party

(a) commits a substantial breach of Contract, including, but not limited

to, failure to:

(i) remedy errors or omissions in the deliverables pursuant to

Clause 21.3;

(ii) provide evidence of insurance;

(iii) use the materials or standards required by the Contract;

(iv) proceed in accordance with a program without reasonable

cause or the Principal’s approval; or

(v) proceed with due expedition and without delay; then

the other party may give to the party who committed the breach, a

written notice to show cause.

(b) A notice to show cause shall:

(i) state it is a notice given under Clause 23.4 of these General

Conditions of Contract;

(ii) specify the alleged breach with reasonable details;

(iii) require the party who committed the breach to show cause in

writing why the party giving the notice should not exercise a

right referred in this Clause 23.4; and

(iv) specify the date by which the party who committed the breach

shall show cause (which date shall be not less than 7 clear

days after the notice is given to that party).

If by the time specified in a notice given under this Clause 23.4 the party who

committed the breach fails to show reasonable cause the other party may, by

further written notice, terminate the Contract or suspend the party’s obligations

to perform the Contract.

If the Contract is terminated pursuant to this Clause 23.4, the rights and

liabilities of the parties shall be the same as they would have been at common

14

law had the defaulting party repudiated the Contract and the other party had

elected to treat the Contract as at an end and recover damages.

If a party suspends performance of the Contract pursuant to this Clause 23.4,

that party shall lift the suspension if the other party remedies the breach. If the

party in default fails, within a reasonable time, to remedy the breach the other

party may, by further written notice, terminate the Contract.

A party who suspends performance of the Contract pursuant to this Clause 23.4

shall be entitled to recover any damages incurred by reason of the suspension. Preservation of Other Rights

If a party breaches or repudiates the Contract, nothing in this Clause 23.5 shall

prejudice the right of the other party to recover damages or exercise any other

right or remedy.

If the Contract is terminated pursuant to Clauses 23.3 and 23.4 the parties’

remedies, rights and liabilities shall be the same as they would have been under

the law governing the Contract had the defaulting party repudiated the Contract

and the other party elected to treat the Contract as at an end and recover

damages.

Dispute resolution Notice of Dispute

If a difference or dispute (together called a ‘dispute’) between the parties arises

in connection with the subject matter of the Contract, then either party shall, by

hand or by registered post, give the other party a written notice of dispute

adequately identifying and providing details of the dispute. A Consultant’s notice

of dispute shall be delivered to the address at Item 19.

Notwithstanding the existence of a dispute, the parties shall, subject to Clause 23

and Clause 24.5, continue to perform the Contract.

Conference

Within 14 days after receiving a notice of dispute, the parties shall confer at least

once to resolve the dispute or to agree on methods of doing so including but not

limited to mediation, conciliation and binding expert determination of the whole

or any part of the dispute.

At every such conference each party shall be represented by a person having

authority to agree to such resolution or methods of resolution. All aspects of

every such conference except the fact of occurrence shall be privileged.

If the dispute has not been resolved nor a method of resolution been agreed,

each within 56 days of service of the notice of dispute, then the dispute shall be

dealt with in accordance with clause 24.3.

Elevation Clause

If the parties are unable to resolve the dispute or agree a method of resolution in

accordance with Clause 24.2:

(a) the dispute shall be referred to the General Manager Business

Services or a duly authorised representative of the Principal and the

Chief Executive Officer/Managing Director or a duly authorised

representative of the Consultant to resolve the dispute or agree a

method of resolution;

15

(b) the individuals referred to in Clause 24.3(a) shall meet within 14

days after referral of the dispute in an effort to resolve the dispute

or agree a method of resolution; and

(c) if the individuals referred to in Clause 24.3(b) agree on the method

of resolution they shall also nominate a timeframe for the

commencement and conclusion of the method of resolution; or

(d) if the individuals referred to in Clause 24.3(b) are unable to resolve

the dispute or agree a method of resolution, each within 14 days of

the dispute being referred, either party may give notice to the other

stating that the parties have been unable to resolve the dispute or

agree a method of resolution.

Instituting proceedings

Neither party shall proceed to resolve a dispute by instituting court proceedings until

issuing to, or receiving from, the other party, a notice in accordance with Clause

24.3(d).

Summary Relief

Nothing herein shall prejudice the right of a party to institute proceedings to enforce

payment due under the Contract or to seek injunctive or urgent declaratory relief.

Conflict The Consultant shall declare in writing, in the form provided in Annexure D, to the

Principal as soon as possible after its discovery, any direct or indirect pecuniary

interest in any business, organisation or group that may give rise to a conflict of

interest.

The Consultant and the personnel shall not carry on business or enter into any

financial arrangements, activities or accommodation with the Principal’s personnel,

consultants or agents that may, or may appear to, conflict with or compromise the

interests and objectives of the Principal without the Principal’s prior written approval.

Annexure Part A - clause item details Item

1. The Principal is:

(clause 1)

Water Corporation

John Tonkin Water Centre

629 Newcastle Street

Leederville, WA. 6007

ABN: 28 003 434 917

2. The Consultant is:

(clause 1)

As shown on the Purchase Order accepting the Consultant’s

bid………………….

…………………………………………..

……………………………………..

3. The Principal’s

representative is:

(clause 5.1)


bid………………….

……………………………………….

……………………………………..

4. The Consultant’s

representative is:

(clause 5.2)


bid………………….

………………………………………….

……………………………………..

5. Approvals to be

obtained by the

Principal:

(clause 8)

………………………………………….

List approvals, if any.

6. The key personnel and

Services to be

provided by those

personnel are:

(clause 9.2)

………………………………………….

If none state “not applicable”

7. (a) The amount of

professional indemnity

insurance shall be not

less than:

(clause 15.2)

$1,000,000..………………………………………….

b) the period for

which professional

indemnity insurance

shall be maintained is:

(clause 15.2)

…6…years after the completion date of the Services

………………………………………………..

If nothing stated until completion of the Services

8. The amount of public

liability insurance shall

be not less than:

(clause 15.3)

$10,000,000…………………………………………..

9. Motor vehicle

insurance

(clause 15.5)

Applicable/not applicable

If applicable the amount shall be not less than

$20,000,000......................................................

10. The Principal’s liability

is limited to:

(clause 17.1)

$.100,000.................................................................

11. The Consultant’s

liability is limited to:

(clause 17.1)

$100,000..................................................................

12. (a) A Program shall be

submitted:

(clause 20.1)

Yes/No

(b) If yes the program

shall be in the

following form; and

(clause 20.1)

Linked Gantt Chart

(c) shall be submitted

by:

(clause 20.1)

Prior to commencement of the Services

13. Commencement date

(clause 20.1)

Date of acceptance or as otherwise shown on the Purchase

Order accepting the Consultant’s bid…

……

14. Completion date

(clause 20.1)


bid………………….

15. Claims for payment

shall be made:

(clause 22.1)

On the second last day of each month

Monthly for Services completed

On completion of the Services

On completion of the following stages of the Services:

…………………………………………………

Select applicable option

16. (a) The Consultant’s

fee shall be

determined as

follows:

(clause 22.2)


bid………………….

…………………………………………..

(b) The expenses and

disbursements to

be reimbursed to

the Consultant

shall be:

(clause 22.2)

Payable at cost:

Economy class airfares and other travel fares

Accommodation and meals

…………………………………………..

If none delete and state “not applicable”

17. (a) Time for payment

(clause 22.3)

days after the date of submission of a claim for payment

…………………………………………..

If nothing stated 28 days

(b) Place for payment

(clause 22.3)

Via EFT from the Principal’s office

…………………………………………..

If nothing stated the Principal’s address

18. The rate of interest on

overdue payments

is:

(clause 22.4)

6%

19. The Principal’s address

for service of notice

of dispute only

(clause 24.1)

The Manager Contracts

Water Corporation

John Tonkin Water Centre


Leederville, WA. 6007

Email: [email protected]

Annexure Part B - confidentiality undertaking

To: Water Corporation


Leederville WA 6007

Attention: XXXXXXX

I am engaged by …………………….…………………………………………………...……….. (Consultant)

(Insert the Name of the Consultant)…………………………………………………………….

who have been engaged by the Water Corporation (the Principal) under the Contract for ……..

Contract Number (Contract).

I undertake the following in favour of the Corporation:

1. I will treat as confidential all information disclosed or made known to me by the Consultant or

by or on behalf of the Principal or acquired or developed during the course of or for the

purposes of performing, or assisting in the performance of, the Services required under the

Contract.

2. Without limiting the above:

a) I acknowledge and confirm that the confidential information includes computer programs,

Principal’s client lists, the Principal’s methods of operation, details of clientele and potential

clientele of the Principal and details relating to bids, bidders and other contracts of the

Principal.

b) I will not use or disclose or authorise the use or disclosure of the confidential information to

any person or company without the prior written consent of the Principal except as provided in

c).

c) I understand that I may disclose the confidential information to officers or employees of the

Consultant only if it is necessary for the due and proper performance of the Contract, but I

undertake that I will use all reasonable endeavours to ensure that any information disclosed is

kept confidential.

3. Within 7 days of the conclusion of my involvement in the Services or the completion or earlier

termination of the Contract or termination of my employment with the Consultant, I will deliver

to the Consultant, for return to the Principal, all documents and materials relating to the

confidential information which are then in my possession, custody or control.

4. My undertakings will survive the conclusion of my involvement in the Services or the

completion or earlier termination of the Contract or the termination of my employment with

the Consultant.

I understand that these undertakings bind me and I sign this letter as a deed.

Yours faithfully In the presence of:

………………………………………… Date:……/……/……

[Signature]

……………………………………… Date:……/……/……

[Signature]

…………………………………………….

[Print full name]

……………………………………………….

[Print full name]

……………………………………………………………………

[Print residential address]

…………………………………………………………………………


Annexure Part C - pecuniary interest declaration

To: Water Corporation


LEEDERVILLE WA 6007

Attention:

I………………………………………………………………………………………………..

[Print full name]

of……………………………………………………………………………………………..


hereby declare to the (the Principal) that I have a direct or indirect pecuniary interest in:

…………………..………………………………………………………………………………

[Provide details of business, company, club, organisation or group]

…………………..………………………………………………………………………………

that may compromise the Services to be performed under the Contract for

…………………………………………………………………………….. , being Contract No. ………………………., for the

following reasons:

…………………..………………………………………………………………………………

…………………..………………………………………………………………………………

Yours faithfully,