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1 Term & Priority:
1.1 Commencement
This Agreement commences on the date it is signed by the last of the parties to sign (Commencement Date) and will continue until either party gives 30 days written notice of termination, unless terminated earlier under this Agreement or at law.
Any inconsistency under this Agreement will be resolved by the following priority applying:

  • Statement of Work;
  • Specific services schedules (if any);
  • this Agreement.

Except as set out in a Statement of Work, the terms of this Agreement prevail over any inconsistent terms in any other communication or agreement.

2 Requesting Goods & Services from Gen-i:
2.1 Requesting Services:
Where you request Gen-i to perform Services, the parties will negotiate the terms of a Statement of Work, which once executed will be appended to, and will form a part of, this Agreement.
2.2 Requesting Goods:
Where you wish Gen-i to supply Goods, you will:

  • provide Gen-i with a written request for Goods; or
  • notify your request for Goods to the Gen-i procurement person designated to you by Gen-i.

Notification to Gen-i in either form will constitute a Statement of Work for the Goods.

3 Provision of Goods & Services:
3.1 Gen-i’s Obligations: Gen-i will:

  • provide the Goods or Services specified in a Statement of Work; and
  • keep accurate records of the Services provided on and report to you as agreed in the Statement of Work.

3.2 Your Obligations: You will:

  • meet all the responsibilities stated as yours in a Statement of Work;
  • provide Gen-i with all reasonable assistance necessary for Gen-i to perform the Services or provide the Goods, as set out in a Statement of Work;
  • ensure that all Third Party Materials are not illegal or offensive; and
  • where reasonably required by Gen-i, contract with the supplier of any Third Party Software for the licensing and/or support of that Third Party Software.

4 Title & Risk in Goods:
4.1 Passing of Risk:
Risk of loss of, or damage to, the Goods will pass to you on delivery to Your Site. You must fully insure the Goods in both your and Gen-i’s name for the replacement value of the relevant Goods from the time of delivery until payment is made in full for those Goods.
4.2 Passing of Title:
Gen-i will retain all legal and beneficial ownership of any and all Goods and Mixed Goods until it receives payment in full for them.
4.3 Romalpa Rights:
Until title to any Goods passes to you, Gen-i may, on reasonable notice and without prejudice to any of its other rights, recover, take possession and/or re-sell those Goods, Mixed Goods or any of them provided there are reasonable grounds to do so. You authorise Gen-i, its servants and agents to enter upon any premises where Gen-i reasonably believes the Goods or the Mixed Goods are held for those purposes. You indemnify Gen-i against any reasonable costs, losses, damages or expenses incurred by Gen-i in exercising its rights under this clause.
4.4 Restriction on Dealing:
Until the Goods or Mixed Goods have been paid for, you must not sell, dispose of, or otherwise part with possession of the Goods or the Mixed Goods, except that you may sell them in the ordinary course of your business. If you sell or otherwise dispose of the Goods and/or the Mixed Goods before you have made payment in full, you must hold the proceeds of sale on behalf of, and as fiduciary bailee and agent for, Gen-i and will pay the same into a separate account or separately identify the proceeds as belonging to Gen-i.

5 Credits for Returned Goods:
5.1 Request for Return:
Gen-i will accept requests for credits or returns of faulty, incorrectly ordered or non-conforming Goods. Gen-i will not accept requests for credits or returns of shrink-wrapped software, which you have opened.
5.2 Returning Goods:
Returned Goods must be in as new condition, in the original packaging and unsoiled and undamaged. Where Goods are accepted for a return, you may be liable to pay Gen-i a restocking fee of 10% of Gen-i‘s then current price for the Goods. Gen-i will not refund your delivery costs unless you are returning the Goods as a result of Gen-i’s mistake.

6 Gen-i’s Warranties:
6.1 Services Warranties:
Gen-i warrants that:

  • It will perform the Services to the accepted standards of professionalism in Gen-i’s industry;
  • personnel supplied to undertake the Services will have the skills, expertise and competency for the purpose.

6.2 Goods Warranties:
Wherever possible, Gen-i will pass on to you the full benefit of the manufacturer’s warranty in respect of the Goods.
Gen-i’s sole obligation in the event of breach of the warranty in clause 6.2 will be to arrange repair or replacement of the Goods where the manufacturer’s warranty (if any) provides for repair or replacement.
6.3 Other Warranties Excluded:
These warranties are in lieu of all other warranties. All representations, warranties or conditions implied by statute, at law, by trade, custom or otherwise are expressly excluded to the fullest extent permitted by law.

7 Invoicing & Payment:
7.1 Fees:
Gen-i will invoice you monthly in arrears for the Fees, together with the cost of materials supplied or used, delivery charges and any travelling and other approved expenses incurred.
7.2 Invoices:
You will pay Gen-i’s invoices by the 20th of the month following the date of the invoice without setoff or deduction of any kind.
7.3 Charges for Delays:
If you cause any delay or change to the Services which impacts on their delivery, Gen-i may charge you for that delay or change at Gen-i’s then current rates.
7.4 Quotes:
Any quote Gen-i gives to you in relation to goods and services is valid only for 14 days from the date the quote is given, provided that Gen-i may vary or withdraw a quote at any time before you accept it by notice in writing.
7.5 Estimates:
All amounts expressed in this Agreement a Statement of Work or a Schedule of Services are estimates unless expressly stated otherwise. You acknowledge that an estimate does not foresee every circumstance: Gen-i will advise you in writing if it believes an estimate will be exceeded.
7.6 GST:
Unless otherwise stated, all Fees are exclusive of GST, which is payable at the time that you pay Gen-i’s invoices.
7.7 Invoice Disputes:
You must notify Gen-i within 10 days of receipt of any invoice you genuinely dispute, and otherwise pay the undisputed portion of the invoiced amount to Gen-i. Any disputed invoice will be subject to dispute resolution under clause 15.
7.8 Suspension of Services:
Subject to clause 7.7, if you do not pay Gen-i’s invoice by the due date, Gen-i may, upon 7 days notice in writing to you, suspend its obligations Services until you pay the invoice in full. Gen-i’s other rights and remedies remain otherwise unaffected.

8 Confidential Information:
8.1 Use of Confidential Information:
This Agreement and any information of a confidential or proprietary nature made available by a party to the other party pursuant to this Agreement, or which has come to a party’s knowledge, is confidential information and each party agrees to keep the confidential information provided to it strictly confidential at all times, except to the extent that the confidential information is generally known to the public (other than due to a breach of this clause).
Each party must ensure that the people it is responsible for keep the confidential information strictly confidential on the same terms.
8.2 Rights at Law Remain:
Both parties acknowledge that their obligations of confidentiality under this Agreement are in addition to the duties of confidentiality, which the law imposes.

9 Intellectual Property in Results of Services:
Ownership of Intellectual Property in the results of a Service may be more specifically set out in each Statement of Work. If ownership is not addressed, the principles set out below will then apply:
9.1 Your Intellectual Property:
Gen-i acknowledges that you own all right, title and interest in Your Intellectual Property.
9.2 Gen-i’s Intellectual Property:
You acknowledge that Gen-i owns all right, title and interest in Gen-i’s Intellectual Property.
9.3 Third Parties’ Intellectual Property:
Each party acknowledges that it will not obtain any right, title or interest in the Third Party Intellectual Property.
9.4 Your Use of Gen-i’s Intellectual Property:
Gen-i grants to you a personal, non-exclusive, non-transferable licence to use Gen-i’s Intellectual Property which forms part of the results of the Services for your own internal business purposes on the terms of this Agreement, provided that you do not:

  • alter, remove, obscure or tamper with any trade marks, any patent or copyright notice, or any confidentiality, proprietary or trade secret legend or notice, or any numbers, or other means of identification used on or in relation to Gen-i’s Intellectual Property;
  • sell, lease, sub-license, lend, assign or transfer, in whole or in part, or provide unlicensed third parties with access to Gen-i’s Intellectual Property except as expressly permitted under this Agreement;
  • make Gen-i’s Intellectual Property available to any person other than your employees for your internal business purposes without Gen-i’s prior written consent, and in particular, to any related company (as that term is defined in the Corporations Act 2001) or any employee of that related company; nor do, authorise or permit any third party to do, any act which would, or might, invalidate Gen-i’s Intellectual Property

10 Infringement of Intellectual Property Rights:
10.1 Notification of Infringement:
You must notify Gen-i of any actual, threatened or suspected infringement of any of Gen-i’s Intellectual Property and of any claim by any third party that any use of the results of the Services infringes the rights of any other person, as soon as that infringement or claim comes to your notice.
10.2 Gen-i’s Indemnity:
Gen-i indemnifies you against any claim, suit, action or proceeding (‘Action’) brought against you to the extent that the Action is based on a claim that your use of the results of the Services constitutes a breach of an Australian patent, copyright, trade secret or other proprietary right existing at the Commencement Date, provided that Gen-i may at its option and cost defend or settle the Action and you must fully co-operate at all times in defending or settling the Action. Where you fail to comply with obligations under this clause, Gen-i will not be liable to indemnify you against the Action.
10.3 Infringement Action:
If an Action is threatened or commenced, Gen-i will:

  • obtain for you the right to use the results of the Services which is the subject of the claim; or
  • modify the results of the Services to make it non-infringing; or
  • grant to you the right to use a different service of equal value and worth.
  • Gen-i is not liable for, and you indemnify Gen-i against, any loss (including, without limitation, loss of profits, data or business opportunity), cost, expense, demand or liability whether direct, indirect, consequential or other, and whether arising in contract, tort, equity or otherwise, which results from a claim by a third party alleging infringement of that third party’s Intellectual Property rights due to:
  • use of any results of the Services in combination by any means and in any form with software or equipment not specifically approved by Gen-i or in a manner or for a purpose not reasonably contemplated or authorised by Gen-i;
  • modification or alteration of any part of the results of the Services by any person other than Gen-i without Gen-i’s prior written consent; or
  • use of any Third Party Materials.

10.4 Third Party Materials and Software:
Gen-i provides no warranties or indemnities in relation to Third Party Materials or Third Party Software.

11 Liability:
11.1 Direct Losses:
Notwithstanding any other provision in this Agreement any Statement of Work or defined Schedule of Services, Gen-i’s liability to you is limited to direct loss or damage which arise directly out of any breach of Gen-i’s obligations under this Agreement a Statement of Work or Schedule of Services to a maximum amount equal to the Fees paid by you to Gen-i under the relevant Statement of Work/Schedule of Services.
Direct loss or damage will not include:

  • any loss of profit, loss of data, loss of revenue, loss of use, loss of contract, or loss of goodwill of any person;
  • any indirect, consequential or special loss; or
  • any loss resulting from liability to any third person.

11.2 Exclusions:
Except as provided in clause 11.1, Gen-i’s liability to you, whether in tort (including negligence), contract, breach of statutory duty, equity or otherwise arising from the relationship between you and Gen-i is excluded to the fullest extent permitted by law.
11.3 Third Party Materials:
Gen-i will not be liable to you for any failure of, defects in, or damage caused by, any Third Party Materials and/or Third Party Software.
11.4 Intellectual Property:
Where you modify or alter any part of the results of the Services prior to completion under the Statement of Work and without Gen-i’s prior written consent, Gen-i will have no liability whatsoever to you under this Agreement or relevant Statement of Work/Schedule of Services.
11.5 No Liability for Delay:
Gen-i will not be liable to you for any delay in providing the Goods and/or Services, which you cause or contribute to.

12 Termination:
12.1 Immediate Termination:
Either party may terminate this Agreement immediately on written notice to the other party if the other party:

  • enters into a composition with its creditors, is declared bankrupt, goes into liquidation, or a receiver, or a receiver and manager, or statutory manager is appointed in respect of it, or any steps are taken towards its winding up or it is unable to pay its debts when due; or
  • assigns its rights or obligations under the Agreement or a Statement of Work/Schedule of Services otherwise than in accordance with clause 18.7 (Assignment).

12.2 Termination by Either Party:
If one party materially defaults in the performance of any of its obligations under this Agreement and:

  • the material default is capable of being remedied, and is not remedied within 20 days of notice by the non-defaulting party specifying the default; or
  • the material default is not capable of being remedied,

the non-defaulting party may immediately terminate the operation of this Agreement.

12.3 Consequences of Termination Without Cause
On termination of this Agreement without cause pursuant to clause 1, any then current Statement of Work/Schedule of Services will also terminate (unless otherwise agreed by the parties), and all amounts owing to Gen-i for Services performed or Goods delivered will immediately become due and payable. Depending on the Services, you may be liable to pay Gen-i an early termination fee, however no early termination fee will be payable if the Agreement is terminated by Gen-i.
12.4 Consequences of Termination With Cause
If you terminate this Agreement other than pursuant to clause 1, you may recover any amount paid in advance by you to Gen-i for the provision of Goods and/or Services which have not yet been completed.
If Gen-i terminates this Agreement other than pursuant to clause 1, Gen-i may:

  • take back all or part of the Goods and/or results of the Services in your possession but not yet paid for by you, or
  • charge, and you will promptly pay, Gen-i for the Goods and/or results of the Services in your possession but not yet paid for by you.

12.5 Your Rights After Termination
After completion under clauses 12.3 and 12.4:

  • Gen-i will return to you all documentation supplied by you within 30 days of the termination date; and
  • you may retain your licence to use Gen-i’s Intellectual Property, except where you are in material breach of the Intellectual Property or Confidential Information

obligations under this Agreement or a Statement of Work, in which case you must immediately destroy or return all of Gen-i’s Intellectual Property.

13 Health & Safety:
You will be responsible for preparing and maintaining safe premises and will comply with all Health and Safety legislation and all regulations and codes of practice made under those statutes.

14 Non-Solicitation of Staff:
Neither party will employ, solicit or otherwise engage, the services of the other party’s personnel during the term of this Agreement and for 6 months thereafter.

15 Dispute Resolution:
15.1 Neither party will commence any court or arbitration proceedings relating to a question, difference or dispute relating to this Agreement (Dispute) unless the party has first complied with this clause 15.
15.2 Where any Dispute arises, the representatives of the parties will meet and negotiate in good faith in an attempt to resolve the Dispute amicably by good faith discussion.
15.3 Where the representatives of the parties do not resolve the Dispute within 3 Working Days of initiating negotiations, the senior executives of each party will meet to try to settle the Dispute. If they are unable to settle the Dispute within 3 Working Days of first meeting, the parties agree to mediate any Dispute in terms of that State’s standard Mediation Agreement. The mediation will be conducted by a mediator and at a fee agreed by the parties.
15.4 If the parties fail to settle the Dispute by mediation within 5 Working Days of the matter being referred to mediation, then either party may initiate arbitration (but not litigation) in accordance with the relevant arbitration statute to resolve the Dispute.
15.5 Nothing in this clause will preclude either party from taking immediate steps to seek urgent injunctive or equitable relief before an appropriate court.

16 Publicity:
Neither party will make public any matter relating to or arising from this Agreement or a Statement of Work/Schedule of Services without the prior written consent of the other party. The parties agree that you will act as a reference site to reasonably assist Gen-i to promote its ability to provide related goods and services.

17 Replacement of Personnel:
Neither party will replace any personnel involved in the Services without the other party’s consent, not to be unreasonably withheld. If either party reasonably requests that the other party replace any personnel involved in the Services, the parties will promptly meet to discuss the request.

18 General:
18.1 Relationship:
Gen-i’s relationship to you is that of an independent contractor. Nothing in this Agreement constitutes a partnership, joint venture or relationship of employer and employee between the parties. Neither party has the power or authority to incur any obligation of any nature of behalf of the other party.
18.2 Force Majeure:
Notwithstanding any other provision of this Agreement, non-performance by either party of any of its obligations (other than to pay money) under this Agreement will be excused, without liability, by an event or circumstance beyond the reasonable control of that party (Force Majeure). The party claiming the benefit of this clause must promptly give written notice to the other party. If a Force Majeure event continues for more than 30 days, either party may terminate this Agreement.
18.3 No Waiver:
Any failure or delay by either party in exercising any right or remedy will not constitute a waiver of such right or remedy.
18.4 Entire Agreement:
This Agreement and each Statement of Work/Schedule of Services will constitute the entire agreement between the parties for the provision of the Software, the Goods and the Services and supersedes all prior written and oral proposals, agreements and communications between the parties.
18.5 Variation:
Any variation of this Agreement or a Statement of Work/Schedule of Services will be in writing and be signed by a duly authorised representative of each party.
18.6 Severability:
If any provision of this Agreement or a Statement of Work/Schedule of Services is declared invalid, the remaining provisions of this Agreement or the Statement of Work/Schedule of Services will continue to apply.
18.7 Assignment:
Neither party may assign any or all of its rights under this Agreement or a Statement of Work/Schedule of Services without the other party’s prior written consent, other than as set out herein. A change of control in a party is deemed an assignment for the purposes of this clause.
Gen-i may subcontract the performance of any of its obligations under this Agreement or a Statement of Work, and will be responsible to you for their performance.
18.8 Consumer Guarantees Act:
You confirm that any Goods and Services you acquire from Gen-i are acquired for the purposes of a business and, accordingly, consumer guarantees law does not apply.
18.9 Notices:
Any notice required or permitted under the terms of this Agreement or required by statute, law or regulation will (unless otherwise provided) be in writing and delivered by hand, by prepaid mail, by email or by facsimile to the addresses set out in this Agreement and will be deemed to have been received at the time when actually delivered if delivered by hand, or upon receipt of confirmation of delivery if sent by email, or upon confirmation of successful transmission if sent by facsimile, or 3 days after posting if sent by mail.
18.10 Law:
This Agreement and each Statement of Work/Schedule of Services is governed by the laws of Australia and the relevant State where the work was performed, and the parties submit to the non-exclusive jurisdiction of the courts of Australia.

Definitions

Access the table of definitions here. This should be used in conjunction with the Terms & Conditions presented in this section.

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