City of Sydney contract terms precedent

General Contract terms (v2.3, Sept 2017) Page 1 of 7

GENERAL CONTRACT TERMS

1. Definitions:

‘City’ means the Council of the City of Sydney ABN 22 636 550 790.

‘City Contact’ means the person identified by the City in Schedule 2

as amended from time to time.

‘Contract’ means (in order of priority) these Contract Terms

(“Terms”), schedules and any attachments thereto.

‘Deliverables’ means any documents, materials or information

(including, but not limited to any notes, drawings, methodologies,

reports or templates) in any format (whether electronic or otherwise)

which the Supplier is required to provide to the City under this Contract

specified in Schedule 2.

‘Documentation’ means documentation specified in the Schedules or

otherwise required to enable the City to make full use of the Products.

‘GST’ means any goods and services tax, value added tax or sales

tax imposed on the sale or supply of goods, services and rights

including but not limited to a tax imposed by the GST Law.

‘GST Law’ means the A New Tax System (Goods and Services Tax)

Act 1999 (C’th) and the related imposition Acts of the Commonwealth.

‘IPR’ means all present and future rights conferred in law in relation to

any copyright, trade marks, designs, patents, circuit layouts, plant

varieties, business and domain names, inventions and information

supplied in accordance with clause 20, and other results of intellectual

activity in the industrial, commercial, scientific, literary or artistic fields,

throughout the world, whether or not registrable, registered or

patentable that exist or that may come to exist anywhere in the world,

but excluding any Moral Rights.

‘Moral Rights’ means all present and future rights of integrity of

authorship, rights of attribution of authorship, rights not to have

authorship falsely attributed and rights of a similar nature conferred by

statute anywhere in the world.

‘Personnel’ of a party means the officers, employees, agents and

contractors (including their employees and contractors) of that party.

‘Premises’ means any place or thing used by the City in the course of

conducting its business.

‘Products’ unless otherwise specified, means any goods and/or

Services supplied by or on behalf of the Supplier under this Contract.

‘Services’ means all services provided under this Contract.

‘Site’ means Premises or any other workplace controlled by the City.

‘Specifications’ means (in order of priority) (a) any description of or

representation about the Products provided to the City or referred to

in the Schedules, and (b) the Supplier’s published specifications for

the Products.

‘WHS Legislative Requirements’ means all applicable work health

and safety legislation, regulations, rules, Codes of Practice and

Australian Standards as amended from time to time.

‘WHS Obligations’ has the meaning given to it in this Contract.

Any other term that starts with a capital letter and used in these Terms

has the meaning given to it in the Schedules.

2. Contract Formation: This Contract may be sent electronically to

the Supplier. The binding Contract between the City and the

Supplier will come into existence on the earlier of the date the

Supplier confirms acceptance of the Contract (including but not

limited to signing these Terms), or the date the Supplier

commences delivery of any of the Products.

3. Delivery: The Supplier must deliver the Products to the Delivery

Address on the Delivery Date and in accordance with the Supplier

Instructions (if any) and the Schedules.

4. Acceptance: If the Products do not comply with the

Specifications, the City may terminate this Contract or require the

Supplier to promptly modify the Products so that they comply with

the Specifications. Execution of a delivery document or payment

by the City does not constitute acceptance by the City.

5. Price: The Prices are fixed and include all levies, duties, taxes

(except GST, unless expressly stated to be inclusive of GST),

insurance packaging and delivery costs. The total amount payable

by the City under this Contract will not exceed the Total Price.

6. Payment: Unless stated in the Schedules or otherwise agreed,

the Supplier may invoice the City following delivery of the Products

or otherwise as permitted by law. Each invoice must itemise the

GST and other indirect taxes included in the Prices, state the

City’s purchase order and be addressed to the City Contact at the

address for invoices specified in the Schedules. The City will pay

correctly rendered invoices (less any amounts due to the City from

the Supplier) within 30 days of the date that invoice is received.

Method of payment will be Electronic Funds Transfer (‘EFT’), with

payments made to the Supplier..

7. Goods and Services Tax: Unless expressly stated to be

inclusive of GST, the consideration for the supply of goods,

services or other things under this Contract has been calculated

exclusive of GST. If GST is imposed on a supply made pursuant

to this Contract, the recipient of that supply must pay, in addition

to the GST-exclusive consideration, an amount equal to the GST

payable by the supplier in respect of the supply. The Supplier must

ensure that any invoice or other request or demand for payment

for supplies provided by it to the City constitutes a tax invoice that

will, where applicable, enable the City to claim any tax credits for

the GST in respect of supplies to which the invoice relates. No

amount will be due and payable by the City in respect of a supply

under this Contract unless the City has received from the party

making the supply an invoice which complies with the GST Law.

8. Risk and Title: Risk in the Products will pass to the City when the

Products are delivered to the Delivery Address. Title in the

Products (other than Product licensed under the clause

10) will

pass to the City on the earlier of acceptance of, or payment for,

the Products by the City.

9. Cancellation: The City may cancel or reduce the quantity of any

Products by notifying the Supplier before the relevant Delivery

Date or if the Supplier fails to supply a Product on the Delivery

Date. The City will not be liable for any amounts or expenses for

cancelled Products.

10. IPR: The parties agree that:

(a) subject to clauses 10(b)and 10(c), the Supplier grants the City

(and its Personnel) an irrevocable, non-exclusive, royalty free,

perpetual licence to use and copy the Products so that the City

(and its Personnel) can make full use of them anywhere in the

world for any purpose;

(b) the City owns the IPR in any modifications made by the City to

the Products; and

in any Products or other material created by the Supplier under

or in connection with this Contract.

11. Moral Rights: The Supplier must obtain from its Personnel all

necessary written unconditional and irrevocable consents and

waivers permitted by applicable law to any act or omission that

would otherwise infringe any of their Moral Rights in the Products

whether occurring before or after a consent or waiver is given for

the benefit of the City, its licensees, successors in title, and

anyone authorised by any of them to do any acts comprised in the

12. Warranty: The Supplier warrants:

(a) that all Products, excluding the Services: (i) are new and in

good condition; (ii) comply with all relevant Australian

standards and industry codes; (iii) are free from defects in

design, materials and workmanship; (iv) are of good and

merchantable quality and fit for their intended purposes; and

(v) comply with the Specifications;

(b) for Services, that the Supplier will: (i) provide the Services with

General Contract terms (v2.3, Sept 2017) Page 2 of 7

the degree of skill, care and diligence that would be expected

of a skilled professional experienced in providing the same or

similar services; (ii) ensure that the Deliverables are fit for the

purposes expressly stated in Schedule 2; (iii) comply with all

reasonable directions of the City Contact; and (iv) comply with

all City conduct policies (as notified to the Supplier by the City

from time to time), relevant Australian standards and industry

codes; and

not breach any obligation of confidence or infringe the IPR of

any person.

13. Breach of Warranty: If the Supplier becomes aware, or the City

notifies the Supplier, that a Product or Service fails to comply with

the warranties given under this Contract, the Supplier must,

without prejudice to any other rights of the City:

(a) in the case of the warranties provided under clause 12(a),

during the Warranty Period (or if no Warranty Period is

specified a period of 12 months from the acceptance of the

Product) fix any non-conformity; and

(b) in the case of any other warranty provided under this Contract,

promptly (at the City’s option) (i) remedy that failure (including

by replacing the Product or resupplying any Services if

necessary), (ii) provide to the City a full refund of the price paid

for the relevant Product or Service, or (iii) deduct in accordance

with the City’s directions the price paid for the relevant Product

or Service from any amounts owing to the Supplier.

14. Indemnity:

Without limiting the City's other rights under this Contract or

otherwise at law, the Supplier must indemnify the City on

demand against any claim, damage, expense, loss, cost

(including reasonable legal costs) or liability (including

liabilities of the City to third parties) arising out of or in

connection with:

(a) loss of, loss of use of, destruction or damage to real or

personal property of the City or any third party, including

existing property;

(b) breach of confidentiality or privacy;

(d) injury to, or disease or illness (including mental illness)

or death of, persons,

to the extent that, and in proportion to which, such claim,

damage, expense, loss, cost or liability arises from any

negligent

act or omission of the Supplier or its Personnel.

14A. Limit of Liability: (a) Subject to clause 14A(b), the Supplier’s

aggregate liability to the City, whether in contract, tort (including

negligence) or otherwise at law, in relation to this Contract or in

respect of the Services is limited to the amount set out in

Schedule 2. (b) The limitation in clause 14A(a) will not apply to

limit the Supplier’s liability to the City in relation to:

(i) fraudulent or criminal conduct by the Supplier or a

subcontractor engaged by the Supplier with respect to the

Services;

(ii) a wilfully wrongful act or omission by the Supplier or a

subcontractor engaged by the Supplier with respect to the

Services;

(iii) injury to, or disease or illness (including mental illness) or

death of, persons, or damage to property of third parties;

(iv) breach of confidentiality or privacy by the Supplier or a

subcontractor engaged by the Supplier with respect to the

Services;

(v) infringement by Supplier or a subcontractor engaged by the

Supplier with respect to the Services of an intellectual

property right or moral rights; or

(vi) conduct by the Supplier or a subcontractor engaged by the

Supplier with respect to the Services which in the City’s view

exhibits reckless disregard for the consequences.

15. Insurance: The Supplier must at its own expense effect and

maintain the insurances listed in Schedule 2. Policies must be

issued with an insurer licensed by the Australian Prudential

Regulatory Authority in Australia or holding an investment grade

rating from an industry recognised rating agency such as

Moodies, Standard & Poors or Bests. The Supplier must provide

to the City a certificate of currency for each of the insurance

policies listed in Schedule 2:

(a) before signing this Contract or commencing delivery of any of

the Products, whichever occurs first; and

(b) promptly following a request by the City at any other time.

16. Assignment and Subcontracting: The Supplier must not novate

or assign part or all of this Contract. The Supplier must not use

any subcontractors for supply of the Products or Services without

the City’s prior written consent. If the Supplier uses a

subcontractor, the Supplier remains liable for the subcontractor’s

performance.

17. Termination: The City may terminate this Contract:

(a) on at least 1 months’ notice for any reason in its discretion

(without liability);

(b) immediately by giving notice to the Supplier if the Supplier (i)

commits a breach of this Contract which is not remedied within

7 days of written notification by the City or (ii) becomes,

threatens, resolves to become or is likely to become subject to

any form of insolvency, administration, receivership,

bankruptcy or liquidation; or (iii) enters into any composition or

arrangement with its creditors or has a receiver appointed over

any of its assets or is the subject of any resolution or petition

for winding up; or

if: (i) the Supplier fails to meet a Delivery Date; or (ii) the

Supplier fails to remedy any breach of the WHS Obligations; or

(iii) the Supplier breaches its WHS Obligations more than once;

or (iv) a breach of the WHS Obligations by the Supplier results

in the serious injury or illness or death of any person or a

dangerous occurrence (as defined in the WHS Legislative

Requirements) on a Site; or (v) other damage results from the

Supplier's failure to comply with the WHS Obligations.

18. Entire Agreement: This Contract is the entire agreement

between the City and the Supplier in relation to the Products and

prevails over any other terms or conditions issued by either party.

No confirmation, shipment, delivery document or representation

will vary this Contract.

19. Work Health and Safety:

19.1 WHS Obligations: In providing the Services at a Site under this

Contract, the Supplier must comply, and must ensure that its

Personnel comply, with:

(a) its obligations as set out in this clause 19;

(b) the WHS Legislative Requirements;

(d) any other directions to the Supplier regarding health, safety or

the environment issued by the City from time to time, (together

the 'WHS Obligations').

19.2 Work Health and Safety Plan:

(a) The City may, at its discretion, require the Supplier to provide

the City with a work health and safety plan in respect of the

Supplier's provision of the Services under this Contract ('WHS

Plan').

(b) The WHS Plan must address those matters specified by the

City at the time of it requesting the WHS Plan.

19.3 Training: The Supplier must ensure that its Personnel undertake

any training:

(a) required by the City from time to time; or

(b) required by law; or

Supplier's obligations under this Contract.

General Contract terms (v2.3, Sept 2017) Page 3 of 7

19.4 Supervision: The Supplier must ensure that its Personnel are

adequately supervised to ensure their health and safety and that

of other persons on the Site at all times while involved in the

provision of the Services on a Site under this Contract.

19.5 Monitoring:

(a) The City may monitor the Supplier's compliance with its WHS

Obligations including: (i) conducting audits of the Supplier's

work health and safety performance; (ii) requiring the Supplier

to provide it with whatever documents and other information

the City requires regarding the Supplier or its Personnel in

relation to: (A) certification of insurances; (B) licences of the

Supplier's Personnel; (C) registration of any vehicles; and (D)

any other matter which it considers appropriate.

(b) The Supplier must cooperate with any monitoring undertaken

by the City under this clause 19.5 and must provide any

documents or information requested by the City from time to

time.

19.6 Breach:

(a) If, at any time, the City Contact is of the opinion that the

Supplier is in breach of its WHS Obligations, the City Contact

may notify the Supplier in writing of the alleged breach and the

City Contact may direct the Supplier to suspend the provision

of the Services in whole or in part.

(b) If the Supplier has been notified by the City Contact of an

alleged breach of its WHS Obligations, the Supplier must: (i) if

directed to do so by the City Contact, immediately suspend the

provision of the Services to the extent directed by the City

Contact; (ii) not resume providing any part or whole of the

Services which has been suspended at the direction of the City

Contact until the Supplier fully satisfies the City Contact that its

WHS Obligations will be fully complied with; and (iii)

immediately remedy the breach at its own expense.

19.6(b)(iii) to immediately remedy the breach, the City may, in

addition to its other rights and remedies, have the obligation

performed by others. The cost incurred in doing so will be a

debt due and payable on demand by the Supplier to the City

and may be set off by the City against any amount otherwise

payable to the Supplier by the City.

(d) Without limiting the foregoing, if the City Contact reasonably

believes that a member of the Supplier's Personnel has

breached the WHS Obligations or otherwise endangered the

health or safety of any person on a Site, the City Contact may

take any step it considers appropriate including directing the

Supplier: (i) to remove that member of the Supplier's Personnel

from the Site; and/or (ii) not to allow that member of the

Supplier's Personnel to be involved in providing any Services

under this Contract.

19.7 Suspension of Services: The City will not be required to make

any payment to the Supplier in respect of the whole or part of the

Services which the Supplier has been directed to suspend in

accordance with clause 19.6.

20. Confidentiality: Any information supplied to a party to this

Contract (Recipient) by the other party to this Contract

(Supplying Party) relating to this Contract (whether in writing or

otherwise) and treated by the Supplying Party as confidential will

be the Supplying Party’s confidential information unless it is:

(a) public knowledge at the time of its supply to the Recipient; or

(b) in the Recipient’s lawful possession prior to its supply to the

Recipient.

The Recipient must keep the Supplying Party’s confidential

information confidential, safe and secure, not disclose it to any

person (except Personnel of the Recipient who have a need to

know or if required to disclose the information by law) and return

it when it has performed all of the work under this Contract or this

Contract terminates or expires, whichever is the earlier. The

Supplier may not make any public statement about this Contract

unless it has first obtained written consent from the City.

21. Privacy: The Supplier must not, directly or indirectly collect, use

or disclose any personal information under or in connection with

this Contract except to the extent necessary to provide the

Products. The Supplier must comply with the Privacy Act 1988

(Cth), the Privacy and Personal Information Protection Act 1998

(NSW) and all other applicable privacy legislation and codes, and

all reasonable directions of the City. On termination or expiry of

this Contract, the Supplier must promptly return to the City or, if

requested by the City, destroy all copies of any such personal

information, in which case any right to collect, use or disclose that

personal information ceases.

22. No fetter: Nothing in this Contract in any way restricts or

otherwise affects the City’s unfettered discretion to exercise its

statutory powers as a public authority.

23. Government information (public access): In accordance with

section 121 of the Government Information (Public Access) Act

2009 (NSW), the Supplier agrees to allow the City immediate

access to the following information contained in records held by

the Supplier:

(a) information that relates directly to supply of the Product by the

Supplier;

(b) information collected by the Supplier from members of the

public to whom the Supplier provides, or offers to provide,

services on behalf of the City; and

Supplier to provide services to the public.

24. Compliance with Law: Each party must comply with all relevant

legislation and regulations in the performance of this Contract.

25. Applicable Law: The laws of New South Wales apply to this

Contract and the parties submit to the non-exclusive jurisdiction of

the courts of New South Wales.

Signed for and on behalf of the Council of the City of Sydney by its duly authorised officer in the presence of:

Signature of authorised representative Signature of witness

Name of authorised representative Name of witness

Title of authorised representative Address of witness

Date of signing

General Contract terms (v2.3, Sept 2017) Page 4 of 7

Signed by the Supplier in accordance with section 127(1) of the Corporations Act 2001:

Director Director/Secretary

Name (printed) Name (printed)

Date of signing

General Contract terms (v2.3, Sept 2017) Page 5 of 7

SCHEDULE 1 PRODUCTS

(For the purposes of this Schedule, ‘Products means unless otherwise specified, any goods and/or Services

supplied by or on behalf of the Supplier under this Contract’)

Products

Description

Base

Price(A$)

Exclusive of

GST

Price

(A$)

Invoice

Date

Delivery

Date

Services

1. Briefing and

scope confirmation

• Briefing by City curatorium – to

confirm project scope, outline

the research requirements,

communications, aims and

projected outcomes

• Confirmation of schedule.

10%

2. Research and

consultation

• Onsite research of civic and

archives collections, including,

but not limited to the Sydney

Star Observer collection.

• Consultation with the artist/s

and external collection/s

• Curatorial rationale and

exhibition title devised in

collaboration with City

curatorium.

• Research phase complete and

outcomes presented to the City.

50%

3. Exhibition

development, and

content and writing

approval

• Exhibition developed according

to the theme, with City and

external/additional exhibition

material identified.

• Ongoing consultation with

contributors and City

curatorium

•

High-res image files identified

and sourced

•

Exhibition content selected; first

draft copy prepared

•

Content approved by the City

•

Exhibition copy completed and

approved by the City

•

All exhibition content sourced

•

Approved copy and high-res

images handed over to

designer (end September)

20%

4. Exhibition

delivery

• Exhibition content prepared for

• Production suppliers and

installation contractors

procured

• Exhibition material and design

files sent to print

• Exhibition installed: supervised

by Creative City exhibition

coordinator, creative producer,

and designer

10%

5. Public

engagement

• Public engagement events

developed and delivered

10%

Total Price:

SCHEDULE 2 CONTRACT DETAILS

Contract Date:

The date established in accordance with clause 2 of the Contract

Supplier:

Supplier

Address:

ABN:

Delivery

Address:

General Contract terms (v2.3, Sept 2017) Page 6 of 7

Purpose(s) for

which the

Deliverables will

be fit for

purpose

Working in collaboration with the City of Sydney, the creative producer will research, curate and

deliver an exhibition for Sydney WorldPride, according to the Schedule and Project Specifications.

The exhibition will be presented on the ground floor of Customs House, opening in February 2023

and closing June/July 2023. During the exhibition period two public engagement activities will be

delivered.

Deliverables

1. In collaboration with the City, consult and devise the exhibition premise and title

2. Research exhibition material within the City’s civic and archives collections, and material from

external collections/sources

3. Consult with the exhibiting artist/s

4. Regularly report to the City on the progress of the exhibition

5. With the City, work with the graphic designer on the exhibition visual identity

6. Write clear exhibition copy suitable for a general public, all ages audience

7. Submit the exhibition content and text for City approval by the agreed dates

8. Work with the City exhibition coordinator on all production elements

9. Acquire publishing rights for the reproduction of images (if applicable). The City will pay any

licence fees

10. Liaise with the City marketing team re. promotion of the exhibition and public engagement

activities

11. Ensure all exhibition material is delivered to the City by the agreed deadlines

12. Develop and deliver two public engagement events/activities, approved by the City

City Contact:

Title: Kate Major, Creative City Exhibition Coordinator

Address: Level 3, Town Hall House

Phone: 0459 868 759

Email: kmajor@cityofsydney.nsw.gov.au

Supplier

Contact:

Title:

Address:

Phone:

Email:

Invoices to be

addressed to:

Email: supplier.invoices@cityofsydney.nsw.gov.au

Conduct

Policies:

1. Statement of business ethics

(http://www.cityofsydney.nsw.gov.au/business/tenders/business-ethics-statement)

Supplier

Instructions:

Not used

City’s WHS

Requirements:

As part of its duty of care obligations, the City requires the successful applicant employed by the

City under the Contract to comply with WHS Legislation, Australian Standards, relevant Codes of

Practice and the City’s WHS Policy in accordance with:

• The legislative obligations placed upon all persons conducting a business or undertaking

with respect to the Work, Health and Safety Act 2011 and Work, Health and Safety

Regulation 2011.

• The City’s WHS Policy available through City’s website at

http://www.cityofsydney.nsw.gov.au/__data/assets/pdf_file/0003/114573/Policy-WHS-

Policy.pdf

Insurance

Insurance type

Amount (AUD)

Public liability – per occurrence

$10 million

Professional indemnity

$2 million

Statutory workers compensation

As required

Limit of Liability

(Clause 14A)

$5 million

General Contract terms (v2.3, Sept 2017) Page 7 of 7

ATTACHMENTS

Project Specification

The Council of the City of Sydney (the City) requests the service of an independent creative producer,

curator, cultural researcher, or historian to research and deliver an exhibition in collaboration with the City

for Sydney for WorldPride 2023 (17 February – 5 March). The exhibition will be presented on the ground

floor of Customs House, February – June 2023.

Sydney WorldPride 2023 is a significant opportunity for the City to celebrate and acknowledge the

LGBTQIA+ community through an exhibition that reflects on the places and people of the Sydney LGA.

Scope of Work

The scope of the project includes collaborating with the City’s curators, historians and archivists (the

curatorium) to research and deliver an exhibition for display on the ground floor of Customs House.

The exhibition will

• Use the research findings as the basis for the exhibition. Content may also be obtained from other

collections.

• Align with the City’s vision and priorities.

• Display content and text that is suitable for a diverse, all-age, general public audience.

• Display reproductions of works that already exist. There are no fees to commission new work.

• Use the Customs House exhibition fixtures and fittings.

• Consider the World Pride festival theme: Gather, Dream, Amplify

• Not include an exhibition launch event. Celebration and acknowledgement of the exhibition will be

through Sydney WorldPride channels and public engagement programs.

The creative producer will

• Collaborate with the City curatorium to define the exhibition concept and exhibition title. They will

regularly meet with and report to the curatorium on the progress of the exhibition. Max 10 meetings

• Undertake research that will include

o The City Archives and the extensive Sydney Star Observer collection and C.Moore Hardy

photographic collection

o Consultation with artist/s, as required

o Research other collections or content sources, as required

o Sub-contracting a research assistant if required for the initial research phase (any sub-

contractors will be approved by the City)

• Select exhibition content for display that can include still and moving image formats.

• Write clear, professional exhibition copy

[1]

in plain English, accessible to a diverse audience and

following the City’s style guide. Copy is required for didactic wall panels (120 words each), labels for

still images and content displayed on the six LCD screens (up to 50 words each label), a press

release, text for the City’s What’s On listing and public program promotional copy. All copy will be

reviewed by the City to ensure it is suitable and accessible to City audiences.

• Liaise with the Creative City exhibition coordinator regarding exhibition production and delivery,

including scheduling, budget, image licensing, installation, and loan agreements.

• Acquire publishing rights for reproductions of images and material that is published within the

exhibition. The City will pay associated fees.

• Submit the exhibition content and copy by the agreed deadlines for City approval.

• Meet with the City’s marketing team to discuss promotional opportunities and be available for media

opportunities.

• Work with a graphic designer and the curatorium on the exhibition visual identity. The City will

procure the graphic designer. The creative producer can recommend graphic design companies for

consideration.

• Develop and manage the delivery of two City-approved engagement activities and/or associated

programs, for example panel discussion.

The City of Sydney will procure all contractors and suppliers associated with the production and delivery of

the exhibition, including graphic design, installation, technical support, marketing support, and support of

public engagement activities.

[1] Copyright of written material remains with the author; however, the City is granted a non-exclusive license to use the

material in City publications and digital platforms during the exhibition and into the future.