Museums Victoria General Conditions for the supply of goods or services

1. Definitions

In this Agreement, unless the context otherwise requires:

Agreement means this Agreement for the supply of Goods or Services, consisting of these General Terms and the Purchase Order.

Business Day means a day which is not a Saturday, Sunday or public holiday (being a public holiday appointed as such under the Public Holidays Act 1993 (Vic)) in Melbourne, Victoria.

Code of Practice means a code of practice as defined in, and approved under, the Privacy and Data Protection Act 2014 (Vic).

Commencement Date means the date on which the supply of the Goods or the provision of the Services will commence (whichever is earlier, if both Goods and Services are being supplied), as specified in the Purchase Order.

Completion Date means the date by which all Goods must be delivered or the provision of all Services must be completed by the Supplier (whichever is later, if both Goods and Services are being supplied), as specified in the Purchase Order.

Confidential Information means any technical, scientific, commercial, financial or other information of, about or in any way related to, Museums Victoria including, but not limited to, any information designated by Museums Victoria as confidential, which is disclosed, made available, communicated or delivered to the Supplier, but excludes information which:

is in or which subsequently enters the public domain, other than as a result of a breach of an obligation of confidentiality;
the Supplier can demonstrate was lawfully in its possession prior to the date of the Agreement;
the Supplier can demonstrate was developed by it independently of any disclosures previously made by Museums Victoria;
is lawfully obtained by the Supplier on a non-confidential basis from a person who is not bound by a confidentiality agreement with Museums Victoria or otherwise prohibited from disclosing the information to the Supplier; or
is required to be disclosed pursuant to Law, court order or other legal process.

Contract Materials means any materials (including any Intellectual Property Rights) which the Supplier creates (whether alone or jointly with any other person) in performing the Services.

Contract Publishing System means the system of the Victorian Government requiring publication of details of contracts entered into by Victorian Government departments, bodies and agencies, including any replacement or amended system.

Data means all data, information, text, drawings, statistics, analysis and other materials embodied in any form which is:

supplied by or on behalf of Museums Victoria in connection with this Agreement (Input Data); or
generated, placed, stored, processed, retrieved, printed, accessed or produced utilising the Input Data, the Services or the deliverables.

Delivery Date means the date by which the Goods must be delivered by the Supplier, as specified in the Purchase Order.

Delivery Point means the location or address to which the Goods are to be delivered, as specified in the Purchase Order.

Fee means a fixed fee payable to the Supplier for the provision of the Services and/or Goods, as specified in the Purchase Order.

General Terms means these General Terms for the Supply of Goods or Services.

Goods means the goods specified in the Purchase Order (if any) and as provided under this Agreement.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).

Health Privacy Principles means the health privacy principles set out in the Health Records Act 2001 (Vic).

IBAC means the commission established under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) and includes any other organisation that may, from time to time, perform the functions of the commission.

Information Privacy Principles has the meaning given in the Privacy and Data Protection Act 2014 (Vic).

Insolvency Event means, in relation to the Supplier, any of the following:

anything that reasonably indicates that there is a significant risk that the Supplier is or will become unable to pay debts as they fall due;
a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the Supplier or any of its assets; or
the Supplier ceasing, or indicating that it is about to cease, carrying on business.

Intellectual Property Rights means all intellectual property rights at any time recognised by law, including all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, trade secrets and know-how, registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.

Laws means:

any statute, regulation or subordinate legislation of the Commonwealth of Australia, the State or local or other government in force in the State of Victoria, irrespective of where enacted; and
lawful requirements of any government or government department or other body or a governmental, semi-governmental, judicial, municipal, statutory or public entity or authority (including a statutory authority or a State-owned enterprise), a self-regulatory authority established under statute or a stock exchange (wherever created or located) or a person (whether autonomous or not) who is charged with the administration of a law.

Logo Guidelines means the Museums Victoria Visual Identity Guildelines found at https://brand.museumsvictoria.com.au/visual-identity/ as updated, replaced or amended by Museums Victoria from time to time.

Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth) and includes a right of a similar nature that is conferrable by statute, and that exists or comes into existence anywhere in the world.

Personnel of a party includes the officers, employees, agents, contractors and sub-contractors of that party.

Pre Existing Intellectual Property means all materials owned by or licensed to a party, including any Intellectual Property Rights, as at the date of the Agreement or developed by or on behalf of a party independently of the Agreement.

Protective Data Security Standards means any standard issued under Part 4 of the Privacy and Data Protection Act 2014 (Vic) and any policies or protocols issued by Museums Victoria to ensure compliance with those standards.

Public Sector Employee has the same meaning as in section 4(1) of the Public Administration Act 2004 (Vic).

Purchase Order means any form of order or purchase issued by Museums Victoria for the supply of the Goods or Services, made under or incorporating these General Terms.

Purchase Price means the sum ascertained by multiplying the Unit Price for the applicable Goods by the number of units delivered.

Rate means the monetary amount (whether charged on an hourly, daily, weekly or other time related basis) payable to the Supplier for the provision of the Services, as specified in the Purchase Order.

Services means the services specified in the Purchase Order (if any) and as provided under this Agreement, including any deliverables provided as part of the services.

State means the Crown in right of the State of Victoria.

Supplier means the entity providing the Services and/or supplying the Goods under the Agreement, as specified in the Purchase Order.

Supplier Code of Conduct means the Code of Conduct issued by the Victorian Government for suppliers providing goods or services to the Victorian Government (as amended from time to time).

Term means the duration of this Agreement from the Commencement Date to the Completion Date unless otherwise as extended in accordance with clause 3(c).

Unit Price means the price per item of each of the Goods, as specified in the Purchase Order.

Victorian Public Entity means:

a public sector body as defined in section 4 of the Public Administration Act 2004 (Vic);
a statutory corporation, a State owned company, a State body or a State business corporation as those terms are defined in the State Owned Enterprises Act 1992 (Vic);
a "Council" as defined in the Local Government Act 1989 (Vic); or
an entity which receives the majority of its funding from any of the entities listed in paragraphs (a) to (c) or any entity under the control of any of the entities listed in paragraphs (a) to (c).

Victorian Public Sector Commission (VPSC) Code of Conduct means the Code of Conduct for Victorian Public Sector Employees 2015 issued by the Public Sector Commission pursuant to section 61 of the Public Administration Act 2004 (Vic).

2. Interpretation

Unless expressed to the contrary, in this Agreement:

words in the singular include the plural and vice versa;
any gender includes the other genders;
if a word or phrase is defined its other grammatical forms have corresponding meanings;
'includes’ and 'including' are not words of limitation;
no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;
the obligations of the Supplier, if more than one person, under the Agreement are joint and several and each person constituting the Supplier acknowledges and agrees that it will be causally responsible for the acts and omissions, including breaches of the Agreement, of the other as if those acts or omissions were its own;
the rights of the Supplier, if more than one person, under the Agreement, including the right to payment, jointly benefit each person constituting the Supplier (and not severally or jointly and severally); and
a reference to:
1. a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
2. a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
3. any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision;
4. ‘$’, ‘dollars’ or ‘AUD’ is a reference to the lawful currency of the Commonwealth of Australia and all amounts payable under this Agreement are payable in Australian dollars; and
5. a party or parties is a reference to Museums Victoria and the Supplier (as the case requires).

3. Term of Agreement

The Agreement begins on the Commencement Date and continues for the Term, unless extended in accordance with clause 3(c) or terminated earlier in accordance with this Agreement.
If any Services have not been completed or Goods delivered by the Completion Date, the Agreement will remain on foot and come to an end only when all Services have been completed, all Goods have been delivered and accepted and all payments required to be made under the Agreement have been made, unless Museums Victoria in its sole discretion provides notice in writing to the Supplier that the Agreement is ended.
A party may, by the provision of reasonable notice in writing, request the Agreement be extended beyond the Term. The Agreement may only be extended for the period or periods as agreed to by the parties in writing.

4. Provision of Services

The Supplier agrees to provide, and Museums Victoria engages them to provide, the Services on the terms of this Agreement.
The Supplier must:
1. provide Services in a timely and efficient manner using the standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services that are similar to the Services; and
2. provide Services in accordance with any reasonable directions given by Museums Victoria from time to time; and
3. use appropriately skilled and qualified Personnel to provide the Services.
If the Supplier fails to provide the Services in accordance with any relevant dates specified for the provision of those Services in the Purchase Order, such failure or delay will constitute a breach of this Agreement by the Supplier and Museums Victoria may terminate this Agreement in accordance with clause 16(a)(i).

5. Provision of Goods

The Supplier agrees to provide, and Museums Victoria engages them to provide, the Goods on the terms of this Agreement.
The Supplier must provide the Goods to Museums Victoria in accordance with:
1. this Agreement; and
2. any reasonable directions given by Museums Victoria from time to time.
The Supplier must:
1. deliver the Goods by the Delivery Date; and
2. promptly notify Museums Victoria as soon as it becomes aware of any delay or possible delay in the supply of the Goods in satisfying the Supplier’s obligations at clause 5(c)(i). If this occurs, Museums Victoria may exercise its discretion in granting an extension of time for delivery (such consent not to be unreasonably withheld).
If the Supplier fails to deliver the Goods by the Delivery Date (or any revised time for delivery agreed pursuant to clause 5(c)(ii)), such failure or delay will constitute a breach of this Agreement by the Supplier and Museums Victoria may terminate this Agreement in accordance with clause 16(a)(i).
After the supply of any Goods (including the supply of Goods pursuant to any particular milestone), Museums Victoria may undertake such reviews as it considers necessary to determine whether the Goods comply with this Agreement.

6. Acceptance or rejection of Goods

After reviewing the Goods, Museums Victoria may notify the Supplier in writing:
1. of its acceptance of the Goods if it is satisfied that they comply with this Agreement; or
2. that the Goods do not comply with this Agreement or that on delivery are damaged or unfit for purpose.
If clause 6(a)(ii) applies:
1. the Supplier must, at its own cost, promptly:
  1. collect and remove any rejected Goods; and
  2. rectify the non-compliance and notify Museums Victoria once completed; and
2. Museums Victoria will undertake further review of the Goods under clause 6(d).
If the Supplier fails to collect and remove the rejected Goods within a reasonable time, Museums Victoria may return the Goods to the Supplier at the Supplier’s expense, or, following further notification, destroy the Goods or otherwise dispose of the Goods in its discretion.
Museums Victoria will undertake further reviews as it considers necessary, and continue this process until, at Museums Victoria's discretion, Museums Victoria:
1. waives, in writing, the requirement for the Goods to comply with this Agreement;
2. is satisfied that the Goods comply with this Agreement and accepts the Goods in accordance with clause 6(a)(i);
3. conditionally accepts the Goods, subject to the Supplier agreeing to rectify the non-compliance within a reasonable timeframe and on such terms as Museums Victoria specifies; or
4. subject to Museums Victoria having provided the Supplier with at least two opportunities to rectify the non-compliance under clause 6(a)(ii), immediately terminate this Agreement by written notice to the Supplier. If Museums Victoria terminates this Agreement under this clause 6(d)(iv), Museums Victoria will be entitled to a full refund of all moneys paid to the Supplier in respect of the Goods which Museums Victoria has not accepted following termination.
For the avoidance of doubt, acceptance under clauses 6(a)(i) to 6(d)(iii) is deemed to be acceptance for the purposes of clause 8.

7. Prices

Unless otherwise expressly stated, any Rate, Fee or Unit Price payable as set out in the Purchase Order is fixed, and inclusive of all taxes (including GST), for the Term.
The Supplier may not charge Museums Victoria for any additional fees or charges, or recover any expenses or other costs from Museums Victoria (including for packaging, transport, insurance, loading, unloading, storage or any other costs incurred by the Supplier in supplying or delivering Goods to Museums Victoria), unless specifically indicated in the Purchase Order.
Any variation to any Rate, Fee, Unit Price, Purchase Price or other costs under this Agreement must be agreed in writing by the parties.

8. Invoicing and payment

Upon completion of the Services and/or following acceptance of the Goods, or as otherwise specified in the Purchase Order, the Supplier must submit an invoice to Museums Victoria at the address specified in the Purchase Order. Each invoice submitted by the Supplier must contain all information required in a tax invoice for the purposes of the GST Act, together with such other information as Museums Victoria may reasonably require.
Museums Victoria will pay the invoiced amount, less any amount required by Law, within 10 Business Days of receipt of an accurate invoice. If Museums Victoria disputes the invoiced amount, it must pay the undisputed amount (if any) and notify the Supplier of the amount in dispute. The parties will endeavour to resolve any such dispute in accordance with clause 25.
Payment of an invoice is not to be taken as evidence that the Services and/or Goods have been supplied or accepted in accordance with the Agreement but must be taken only as payment on account.
Unless otherwise notified by the Supplier in writing, Museums Victoria will pay any amounts owing to the Supplier under this Agreement to the bank account specified in the Purchase Order (if any).
Museums Victoria will, on demand by the Supplier, pay simple interest on a daily basis on any overdue amount, at the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 (Vic).
For the purposes of clause 8(e), “overdue amount” means an amount (or part thereof) that is not, or is no longer, disputed in accordance with this Agreement:
1. that is due and owing under a tax invoice (as defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth)) properly rendered by the Supplier in accordance with this Agreement; and
2. which has been outstanding for more than 10 Business Days from the date of receipt of the correctly rendered invoice or the date that the amount ceased to be disputed, as the case may be.

9. Failure to perform

If the Supplier fails to perform any Services and/or provide any Goods in accordance with this Agreement, Museums Victoria:
1. will not be required to pay for those Services and/or Goods until they are performed or provided in accordance with the Agreement; and
2. may issue a notice to the Supplier requiring the Supplier to remedy any default or re-perform the Services or re-provide the non-compliant Goods within the time specified by Museums Victoria (which time must be reasonable having regard to the nature of the relevant Services and/or Goods).
If:
1. the default referred to in clause 9(a) above is incapable of being remedied or re-performed; or
2. the Supplier fails to remedy the default or re-perform the non-compliant Service(s) or re-provide the non-compliant Goods within the time specified in the notice issued under clause 9(a)(ii),
Museums Victoria may either have the Services and/or Goods remedied or re-supplied by a third party or do so itself. In either case, the Supplier must pay the reasonable costs incurred by Museums Victoria in doing so.
Nothing in this clause 9 derogates or otherwise limits any other remedy available to Museums Victoria at Law.

10. Intellectual Property Rights

In relation to the Services provided by the Supplier under this Agreement:
1. Ownership of the Intellectual Property Rights in and to the Contract Materials developed or produced pursuant to, for the purpose of or in connection with, this Agreement vests in and belongs to the Supplier from the time of its creation; and
2. The Supplier irrevocably and unconditionally grants to Museums Victoria a perpetual, non exclusive, royalty-free, worldwide and transferable licence (including the right to sub-license) to exercise all Intellectual Property Rights in the Contract Materials to the extent necessary for Museums Victoria to enjoy the full enjoyment and benefit of the Services and this Agreement.
In relation to the Goods supplied by the Supplier under this Agreement:
1. The Supplier irrevocably and unconditionally grants to Museums Victoria a non exclusive, perpetual, royalty free, worldwide and transferable licence (including the right to sub-license) to use any Intellectual Property Rights in relation to any Goods supplied to the extent necessary to allow Museums Victoria the full use and enjoyment of those Goods.
In relation to any Pre Existing Intellectual Property used by the parties in connection with the provision of the Services and/or Goods or the creation of Contract Materials:
1. The Pre-Existing Intellectual Property and any Intellectual Property Rights in it remains the property of the relevant party or its licensors;
2. The Supplier hereby irrevocably and unconditionally grants to Museums Victoria a perpetual, non exclusive, royalty-free, worldwide and transferable licence (including the right to sub-license) to use any Intellectual Property Rights in the Supplier's Pre Existing Intellectual Property which is incorporated in or otherwise required to use the Contract Materials, the Services and/or Goods. The licence granted to Museums Victoria under this clause is limited to use of the relevant Pre Existing Intellectual Property by Museums Victoria for the purposes of Museums Victoria and for no other purpose.
3. Museums Victoria grants the Supplier a limited, non-exclusive, non-transferable, royalty-free licence to use Museums Victoria's Pre-Existing Intellectual Property:
  1. for the sole purpose of performing, and only to the extent required to perform, the Services and comply with its obligations under the Agreement during the Term; and
  2. provided that the Supplier complies with the Logo Guidelines and any other marketing directions as notified to the Supplier by Museums Victoria from time to time.
The Supplier represents and warrants to Museums Victoria that the Services and/or Goods may be used in any way by Museums Victoria, without identifying any person as the individual responsible for creating any particular material comprised in it, without infringing the Moral Rights of any person.
The Supplier must, upon request by Museums Victoria, do all things necessary (including executing any documents) to give full effect to this clause 10.
Any licences granted by Museums Victoria to the Supplier under this clause 10 immediately terminate upon expiry or termination of this Agreement.

11. Data

Data will remain (and, if necessary, will become) the property of Museums Victoria. The Supplier will assign to Museums Victoria from the date of creation all Intellectual Property Rights in any Data created by or on behalf of the Supplier.
The Supplier must only use the Data to the extent necessary to perform its obligations under the Agreement.

12. Access

When at Museums Victoria's premises, the Supplier must, and must ensure that its Personnel:

protect people and property;
prevent nuisance;
act in a safe and lawful manner;
ensure that the areas at Museums Victoria’s premises where the Supplier is working are kept clean and in good repair and condition, having regard to the condition of the area at the time the Supplier commenced performing its obligations on site;
not damage any of Museums Victoria’s, or any third party’s, equipment, materials, other facilities or improvements;
complete any worksite orientations or inductions as reasonably required by Museums Victoria;
comply with the safety standards and policies of Museums Victoria (as notified to the Supplier); and
comply with any lawful directions of Museums Victoria or its Personnel.

13. Cancellation

Museums Victoria may cancel the supply of Goods at any time before the Goods are delivered by giving written notice to the Supplier.

14. Title and risk

Title in the Goods will pass to Museums Victoria upon acceptance of the Goods. Risk in the Goods will pass to Museums Victoria when the Goods are delivered to the Delivery Point.

15. Manufacturer’s warranty

If a warranty or maintenance obligation (including a warranty from a manufacturer) applies in relation to the Goods, the Supplier must ensure that the benefit of the warranty or obligation is passed to Museums Victoria.

16. Termination

Museums Victoria may terminate the Agreement with immediate effect (or with effect from a specified date) by giving notice in writing to the Supplier if the Supplier:
1. fails to provide the Services and/or Goods in accordance with this Agreement;
2. breaches any provision of the Agreement and, where that breach is capable of remedy, fails to remedy the breach within 10 Business Days after receiving written notice requiring it to do so (or such later date as may be specified in that notice);
3. breaches any provision of the Agreement that is not capable of remedy;
4. or any of its Personnel involved in the provision of the Services and/or Goods commits fraud, dishonesty or any other serious misconduct;
5. commits any act or does anything that may be prejudicial or otherwise detrimental to the reputation of the State; or
6. suffers from an Insolvency Event.
Museums Victoria may terminate the Agreement without cause on notice to the Supplier.
If the Agreement is terminated pursuant to clause 16(b), Museums Victoria will pay the Supplier:
1. for the Services performed and/or Goods delivered in accordance with the Agreement up to the date of the termination; and
2. the unavoidable and substantiated costs incurred by the Supplier as a direct result of the termination, excluding any loss of profit,
and Museums Victoria has no other liability to the Supplier in relation to that termination.
When Museums Victoria issues a notice under clause 16(b), the Supplier will immediately comply with any directions given in the notice and do all that is possible to mitigate its losses arising from the termination of the Agreement.
The Supplier may terminate the Agreement by giving at least 20 Business Days written notice to Museums Victoria if Museums Victoria fails to pay amounts due under this Agreement.
Termination or expiry of this Agreement will not prejudice any right of action or remedy which may have accrued to either party prior to termination or expiry.
On termination or expiry the Supplier must immediately, following instructions by Museums Victoria, cease using all materials that contain any Data, Confidential Information or Pre-Existing Intellectual Property of Museums Victoria, by either destroying the materials or returning the materials at no additional cost to Museums Victoria.
If Museums Victoria exercises its rights pursuant to this clause 16, it is not liable to pay anything in respect of any Goods that have not been delivered to Museums Victoria at the time of the termination. The right of Museums Victoria to recover any sum paid to the Supplier for undelivered Goods shall not be prejudiced by the exercise of any rights under this clause 16.

17. Liability

The Supplier indemnifies, and will at all times keep Museums Victoria and each of its Personnel indemnified, against any liabilities, losses, damages, costs and expenses (including all legal and settlement costs determined on a full indemnity basis) or compensation arising out of, or in any way in connection with, any:
1. personal injury, including sickness and death;
2. loss of or damage to property;
3. breach of an obligation of confidence or privacy, whether under this Agreement or otherwise;
4. fraudulent acts or omissions;
5. wilful misconduct or unlawful act or omission;
6. breaches of logical or physical security;
7. loss or corruption of Data;
8. third party claim arising out of a breach of the Agreement by the Supplier or its Personnel (including breach of warranty) or any negligent act or omission of the Supplier or its Personnel; or
9. infringement or alleged infringement of the Intellectual Property Rights or any other rights of any person, including any third party,
which was caused, or contributed to by, any act or omission of the Supplier or any of its Personnel.
The Supplier’s liability to indemnify Museums Victoria under clause 17(a) is reduced to the extent that any wilful, unlawful or negligent act or omission of Museums Victoria or its Personnel contributed to the liability, loss, damage, cost, expense or compensation.
To the extent that the indemnity in clause 17(a) refers to persons other than Museums Victoria, Museums Victoria holds this clause on trust for those other persons.

18. General warranties

The Supplier represents and warrants to Museums Victoria that:

(Capacity) it has the right to enter into the Agreement and has the right to perform the Services and supply the Goods;
(Purpose) where Museums Victoria has, either expressly or by implication, made known to the Supplier any particular purpose for which the Services and/or Goods are required, the Services and/or Goods will be supplied in such a way as to achieve that result;
(Conflict) it and its Personnel do not hold any office or possess any property, are not engaged in any business or activity and do not have any obligations whereby duties or interests are or might be created in conflict with or might appear to be created in conflict with its obligations under the Agreement;
(IP) it is entitled to use and deal with any Intellectual Property Rights which may be used by it in connection with the provision of the Services and/or Goods and to grant to Museums Victoria the licences contemplated by this Agreement;
(Trust) it has not entered into the Agreement on behalf of a trust;
(No infringement) the receipt, possession or use of the Services and/or Goods by Museums Victoria will not infringe the Intellectual Property Rights or other rights of any person or any Laws; and
(No claims) to its knowledge, there are no claims or investigations pending or threatened by or against it which may have a material effect on its ability to perform its obligations under this Agreement.

19. Additional warranties in relation to Goods

Where Goods are to be supplied under this Agreement, the Supplier also represents and warrants to Museums Victoria that:

(Title) it has the right to sell, and transfer title to and property in, the Goods to Museums Victoria;
(Unencumbered) the title to the Goods is unencumbered;
(IP):
1. it is entitled to use and deal with any Intellectual Property Rights which may be used by it in connection with the Goods; and
2. the manufacture, supply and/or sale of the Goods does not infringe the rights of any other person, including Intellectual Property Rights;
(Goods) the Goods:
1. are new and fit for any purpose set out in the Specifications at Attachment A and for any other purpose for which the Goods would ordinarily be used;
2. conform in all respects with this Agreement;
3. are free from defects (including defects in installation);
4. are of merchantable quality and comply with all applicable Laws and standards, including but not limited to any mandatory safety standards applicable to the Goods or any applicable Laws and standards relating to the quality and manufacturing of the Goods;
5. are packaged in a way that will keep the contents clean and dry until first used;
6. are accompanied by any necessary instructions and technical documents, including operating and service manuals, which must be in English, and be of sufficient quality and clarity to enable a person to effectively and safely operate, support, store and dispose of the Goods;
(Fitness for consumption) where the Goods are intended for human consumption:
1. the Goods are fit for human consumption;
2. they comply in all respects with any applicable Laws and standards with respect to food, health, trade practices, weights and measures in Australia; and
3. they are not adulterated or contaminated in any way;
(No variation) it will not vary the specifications, design, share, configuration or characteristics of the Goods without first obtaining the written consent of Museums Victoria; and
(Licences) the Supplier has complied with all Laws which regulate the development, creation, distribution and sale of the Goods to Museums Victoria, including holding all registrations and licenses which are required for the Supplier to lawfully perform its obligations under this Agreement.

20. Insurance

The Supplier must obtain and maintain insurance cover during the Term and, if requested by Museums Victoria, for a period of up to 7 years after the Services have been completed and/or the Goods have been accepted, sufficient to cover any loss or costs that may be incurred and for which Supplier may be liable in connection with the Agreement, including:
1. public liability insurance in the amount of $20,000,000 for each occurrence;
2. product liability insurance in the amount of $20,000,000 for each occurrence; and
3. professional indemnity insurance in the amount of $10,000,000 for each claim.
On request, the Supplier must, within 10 Business Days, provide Museums Victoria with evidence of the currency of any insurance it is required to obtain under this Agreement.
Where the required insurance is due to expire, on request by Museums Victoria, the Supplier must provide evidence of the replacement insurance prior to the expiry of the initial insurance.

21. Confidentiality, privacy and data protection

The Supplier and its Personnel must keep the Confidential Information confidential and secure and must not disclose or otherwise make available any Confidential Information to any other person
The Supplier consents to Museums Victoria publishing or otherwise making available information in relation to the Supplier (and the provision of the Services and/or Goods):
1. as may be required to comply with the Contract Publishing System;
2. to other Victorian Public Entities or Ministers of the State in connection with the use of the Services;
3. to any public sector agency (of the State, any other state or territory or the Commonwealth) for the purposes of benchmarking, provided that it will not identify the Supplier;
4. to the office of the Auditor General appointed under section 94A of the Constitution Act 1975 (Vic) or the ombudsman appointed under the Ombudsman Act 1973 (Vic);
5. to comply with Law, including the Freedom of Information Act 1982 (Vic); or
6. to the IBAC.
The Supplier acknowledges that it will be bound by the Information Privacy Principles, Health Privacy Principles and any applicable Code of Practice (together, Privacy Obligations) with respect to any act done or practice engaged in by the Supplier for the purposes of the Agreement, in the same way and to the same extent as the Privacy Obligations would have applied to Museums Victoria in respect of that act or practice had it been directly done or engaged in by Museums Victoria.
The Supplier acknowledges that Museums Victoria is bound by the Protective Data Security Standards. The Supplier will not do any act or engage in any practice that would contravene or give rise to a breach of a Protective Data Security Standard in respect of any Data collected, held, used, managed, disclosed or transferred by the Supplier, on behalf of the State, under or in connection with the Agreement.

22. Sub-contracting and Assignment

The Supplier must not sub-contract, transfer or assign to any third person any of its rights or obligations under this Agreement without the prior written consent of Museums Victoria (which may be given conditionally or withheld in its absolute discretion).
The Supplier will not, as a result of any sub-contracting arrangement, be relieved from the performance of any obligation under the Agreement and will be liable for all acts and omissions of a sub-contractor as though they were the actions of the Supplier itself.
The Supplier will be responsible for acts and omissions of any assignee.
Museums Victoria may, by notice in writing to the Supplier, assign its rights, transfer its obligations or novate the Agreement to any Victorian Public Entity in the event of any State government restructure or other re organisation or change in policy.

23. Compliance with Law and Policy

The Supplier must, in performing its obligations under the Agreement, comply with the Laws relevant to the provision of Services and/or Goods by Supplier under the Agreement and with the ‘Victorian Industry Participation Policy’ (if applicable).
Where, in the course of providing the Services and/or Goods, the Supplier or its Personnel:
1. supervise or work with Public Sector Employees;
2. undertake work that is of a similar nature to the work undertaken by Public Sector Employees at a premises or location generally regarded as a public sector workplace; or
3. use or have access to public sector resources or information that are not normally accessible or available to the public, the Supplier must (and must ensure that its Personnel) comply with the VPSC Code of Conduct.
The Supplier acknowledges that:
1. the Supplier Code of Conduct is an important part of the State's approach to procurement and describes the State's minimum expectations regarding the conduct of its suppliers;
2. it has read and aspires to comply with the Supplier Code of Conduct; and
3. the expectations set out in the Code are not intended to reduce, alter or supersede any other obligations which may be imposed on the Supplier, whether under the Agreement or at Law.

23A. COVID-19 Requirements

(Compliance with Directions under the Public Health and Wellbeing Act) Without limiting clause 23, the Supplier must comply with, and ensure that its employees, sub-contractors, agents and invitees comply with any direction made under the Public Health and Wellbeing Act 2008 (Vic) and any other advice or requirements in relation to the COVID-19 pandemic issued by any government or public authority to the extent that the direction or requirement is relevant to the Goods or Services, including any applicable directions with respect to mandatory vaccination.
(Industry-Specific Requirements and COVID Safe Plan) Without limiting clause 23 or clause 23A(a) above, the Supplier must:
1. comply with any industry-specific requirements or directions applicable to the Supplier under the Public Health and Wellbeing Act 2008 (Vic);
2. provide Museums Victoria with evidence on request of the Supplier’s compliance with any applicable mandatory vaccination requirements;
3. where required by the directions, have in place a COVID Safe Plan which complies with any requirements, recommendations or guidance from any relevant government or public authority;
4. update the COVID Safe Plan as is required or prudent; 
5. comply with, and ensures that its employees, sub-contractors, agents and invitees comply with the COVID Safe Plan; 
6. where relevant to Museums Victoria, provide Museums Victoria with a copy of the COVID Safe Plan when requested and as soon as practicable after any amendment to the COVID Safe Plan;
7. ensure that only those personnel who hold an Authorised Worker Permit or are otherwise entitled to leave their principal place of residence for work are involved in the supply of the Goods or performance of the Services, to the extent that the Goods or Services are to be supplied or performed at any of Museums Victoria’s premises; and
8. not allow any person associated with the Supplier to attend or remain at any of Museums Victoria’s premises where the Supplier is aware that the person has been directed to isolate or quarantine or where it is otherwise apparent to the Supplier:
9. that the person is displaying symptoms which might indicate that the person is suffering from COVID-19;
10. that the person has displayed such symptoms at any time within the previous 14 days; or
11. the person has, at any time within the previous 14 days, been in the company of someone who has displayed such symptoms.
(Restricted Access to Premises) Museums Victoria may prohibit any person from entering its premises, or direct that a person leave the premises, where it has good cause to suspect that:
1. that the person has been directed to isolate or quarantine;
2. the person may be suffering from COVID-19; or
3. the person is not complying with, had not complied with or will not comply with the COVID Safe Plan or the requirements of these Special Conditions.
(COVID-19 Diagnosis) The Supplier must:
1. comply with all laws and requirements regarding the notification of a confirmed or suspected diagnosis of COVID-19;
2. as soon as practicable after becoming aware of, or having good cause to suspect that there is a confirmed or suspected diagnosis of COVID-19 in any of its employees, sub-contractors, agents and invitees who have been at Museums Victoria’s premises or otherwise working with someone who has been on the premises, advise Museums Victoria in writing of that circumstance together with notification of the relevant dates of those circumstances.

24. GST

The terms used in this clause have the same meanings given to them in the GST Act.
Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with the Agreement are inclusive of GST.
If GST is imposed on any supply made under or in accordance with the Agreement, the recipient of the taxable supply must pay to the party making the taxable supply an amount equal to the GST payable on or for the taxable supply. Subject to the recipient first receiving a valid tax invoice, payment of the GST amount will be made at the same time the consideration for the taxable supply is to be paid or provided in accordance with the Agreement.

25. Dispute Resolution

If any dispute arises under or in connection with this Agreement (Dispute), either party may at any time give written notice to the other (Dispute Notice) requesting that a meeting take place to seek to resolve the Dispute in good faith.
If a party provides a Dispute Notice to the other party, the parties must meet within 15 Business Days to negotiate in good faith to resolve the Dispute.
If the Dispute is not resolved in 15 Business Days of the Dispute Notice it will be referred to mediation (Mediation) conducted by the Australian Disputes Centre (ADC) in accordance with the ADC mediation guidelines (Guidelines) with each party bearing their own cost.
If the parties fail to settle the Dispute at Mediation, the parties may agree to submit the dispute for resolution to final and binding arbitration.
The parties will continue to perform their respective obligations under this Agreement pending the resolution of a Dispute.

26. General

The Agreement is governed by and is to be construed in accordance with the Laws. Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
Time is of the essence in relation to the obligations under this Agreement.
The Agreement may only be varied or replaced by a written document executed by the parties.
A waiver of any right, power or remedy under the Agreement must be in writing and signed by the party granting it. The fact that a party fails to do, or delays in doing, something the party is entitled to do under the Agreement does not amount to a waiver.
Any provision of the Agreement which is invalid or unenforceable is to be read down, if possible, so as to be valid and enforceable, and, if that is not possible, the provision will, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.
Museums Victoria may set off against any sum owing to the Supplier under the Agreement any amount then owing by the Supplier to Museums Victoria.
This Agreement may be executed in any number of counterparts all of which taken together constitute one instrument.

27. Entire Understanding and order for precedence

In the event and to the extent of any inconsistency between these General Terms and the Purchase Order, the General Terms will prevail to the extent of the inconsistency. If the inconsistency remains incapable of resolution by reading down, the inconsistent provisions will be severed from the Purchase Order without otherwise diminishing the enforceability of the remaining provisions of the Purchase Order.
This Agreement contains everything the parties have agreed in relation to the Services and/or Goods. No party can rely on an earlier written document or anything said or done by or on behalf of another party before this Agreement was executed.

28. Survival

Clauses 10 to 27 inclusive of this Agreement survive the termination or expiry of this Agreement or the completion of the provision of Services and/or Goods and may be enforced at any time.