request for tender - sydney uni sfc · 1. interpretation unless expressly indicated otherwise, the...
TRANSCRIPT
1
REQUEST FOR TENDER
for
SUSF Clothing Supply
Sydney Uni Sport & Fitness
Sports & Aquatic Centre
Building G09
University of Sydney
Darlington NSW 2006
Ph: (02) 9351 4960
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CONTENTS
COVER PAGE
THIS CONTENTS PAGE
EXPLANATION OF DOCUMENTS
PART A: Conditions of Tender
PART B: SUSF Requirements
PART C: Tender Cover Sheet
PART D: Draft Contract
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EXPLANATION OF DOCUMENTS
1. CONDITIONS OF TENDER (PART A)
The Conditions of Tender (“Conditions”) are the conditions upon which SUSF will receive and evaluate Tenders.
Failure to strictly observe these conditions may result in a Tender being excluded from further consideration.
2. SUSF REQUIREMENTS (PART B)
SUSF’s Requirements contain some general information for tenderers together with details of SUSF’s
requirements to enable SUSF’s Tender Panel to assess each Tender.
3. COVER SHEET FOR TENDERERS (PART C)
The Cover Sheet for Tenderers is a required form that must be returned as part of the Tender. A Tender may be
excluded from further consideration if this form is not completed and submitted by the Tenderer.
4. DRAFT CONTRACT FOR PROFESSIONAL SERVICES (PART D)
The Contract contains the draft terms of the contract that the successful Tenderer is likely required to sign,
subject to clause 18. It may be varied by agreement between the successful Tenderer and SUSF during the
Tender evaluation and negotiation process.
A contract for undertaking the clothing supply is not formed until counterparts of the Contract have been signed
and exchanged between SUSF and the successful Tenderer.
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PART A
CONDITIONS OF TENDER
1. INTERPRETATION
Unless expressly indicated otherwise, the terms of this RFT shall be interpreted in accordance with the
Definitions annexed to these Conditions.
2. TENDER CLOSING TIME
Tenders conforming to this RFT must be lodged in accordance with these Conditions no later than 5pm
AEST on Wednesday 1st November 2017 (“Closing Time”).
3. LODGEMENT
3.1 The original Tender (marked “Original’), must be placed in an envelope clearly marked with the Tender
Title, Closing Time and Tenderer’s name, and lodged prior to Closing Time by:
(a) Hand delivering it at SUSF; or
(b) posting it to SUSF so that it is received before the Closing Time; and
(c) by email using the Contact Officer’s email address as provided in this RFT.
3.2 Oral Tenders will not be considered.
3.3 No responsibility will be accepted for any incorrectly lodged Tender.
4. UNAUTHORISED COMMUNICATION
4.1 Tenderers must direct all communications concerning this RFT through the Contact Officer unless directed
otherwise by the Contact Officer. Unauthorised communication by a Tenderer with other staff of SUSF
may lead to the exclusion from consideration of a Tender lodged by that Tenderer.
4.2 SUSF reserves the right to:
(a) not answer a question asked by a Tenderer; and
(b) provide any answers to questions raised by a Tenderer to any other Tenderer, on a non-attributable
basis.
5. CONTACT OFFICER
For the purposes of this tender, the Contact Officer is:
Liz Grey
Sydney Uni Sport & Fitness
Sports & Aquatic Centre (Building G09)
University of Sydney
Darlington NSW 2006
Tel: (02) 9351 4960
Email: [email protected]
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6. RFT TIMETABLE
SUSF’s intended timetable for this RFT is as follows:
Issue date of tender: 18th October, 2017
Closing Time:
Finalists invited to present to SUSF:
5pm, 1st November, 2017
6th – 10th November, 2017
Conclusion of tender evaluation: 14th November, 2017
Finalisation and signature of Contract:
Liaise with marketing re logo:
17th November, 2017
1st – 15th December, 2017
First Delivery of Clothing needed: February 2018
7. VARIATION OF RFT
SUSF may, in its absolute discretion, amend this RFT or provide additional information at any time by
giving written notice to:
(a) prior to the Closing Time, all persons who have been issued with the RFT by SUSF and who have
provided sufficient address details to enable SUSF to contact them; and
(b) after the Closing Time, to all Tenderers who have lodged Tenders.
8. LATE TENDERS
8.1 Tenders received after the Closing Time (“Late Tenders”) may not be accepted into the Tender Process
unless SUSF, in its absolute discretion, resolves that accepting a Late Tender will not compromise the
integrity of the tendering process or provide any unfair advantage to the Tenderer lodging the Late
Tender.
8.2 Late Tenders which are not accepted, will be marked on the envelope with the time and date of receipt,
and may be returned unopened to the Tenderer.
8.3 SUSF may request a Tenderer to provide evidence to assist it in making its decision as to whether to
accept or exclude a Late Tender from the Tender Process.
9. ALTERATION OR ILLEGIBILITY
9.1 A Tenderer must initial any alteration made to a Tender.
9.2 A Tender containing alterations that are not initialled, erasures or illegible information may be excluded
from consideration.
9.3 A Tenderer should immediately notify the Contact Officer in writing if it reasonably believes there is a
discrepancy, error, ambiguity, inconsistency or omission in this RFT.
10. SUSPENSION OR CESSATION
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SUSF may, in its absolute discretion, cease to proceed with, or suspend the process, or any stage of it,
outlined in the RFT or any negotiations being conducted at that time with any Tenderer.
11. REJECTION OF TENDER
SUSF may, at its complete discretion, reject a Tender that does not fully comply with the terms of the RFT.
12. PARTIAL ACCEPTANCE
SUSF reserves the right to accept all or part of a Tender at the price or prices tendered unless the Tender
states specifically to the contrary.
13. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
13.1 The RFT and such intellectual property rights as may exist in the information contained in the RFT shall
remain the property of SUSF. A Tenderer is only permitted to use the RFT for the purpose of preparing a
Tender in response and for the purpose of conducting any contract negotiations with SUSF.
13.2 The Tenderer must keep confidential all information concerning SUSF, received as a result of, or in
connection with, the submission of a Tender which SUSF has indicated to Tenderers is confidential or
which Tenderers know or ought to know is confidential.
13.3 All Tenders and accompanying documents become the property of SUSF and the Tenderer authorises
SUSF, its officers, employees, agents and advisers to adapt, modify, disclose, reproduce or do anything
else necessary (in SUSF’s sole opinion) to the whole or any portion of the Tender for the purpose of:
(a) Tender evaluation;
(b) negotiating and/or entering into a contract with any party for the delivery of SUSF’s
Requirements or similar requirements;
(c) managing a contract with a successful Tenderer (if any); or
(d) anything else related to the above purposes, including governmental and parliamentary auditing
and reporting requirements.
13.4 SUSF reserves the right to require that information concerning SUSF, received by a Tenderer as a result of,
or in connection with, the submission of a Tender (and copies of such information) be either destroyed by
the Tenderer or alternatively returned to SUSF at any time. SUSF may also require that the Tenderer
provide evidence (in a form satisfactory to SUSF) that any SUSF requirements in this respect have been
fully complied with.
14. CONTENT AND FORMAT OF TENDER
14.1 Tenders must include all the information requested in the RFT unless expressly specified otherwise.
14.2 All items, features and functions specified in the RFT are the minimum information requirements for a
Tender unless expressly stated otherwise.
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14.3 The Tenderer must submit the Tender under cover of the Cover Sheet. The Cover Sheet must be
completely filled in, and be accompanied by any other supplemental documents necessary to make the
Tender complete. A Tenderer may reproduce the Cover Sheet in an expanded format to provide
additional space for response.
14.4 Where a Tenderer cannot supply an item, and intends to utilise a subcontractor, all of the information
requested in the RFT must be provided in full for each subcontractor.
15. PRICE
15.1 All monetary amounts are to be expressed in Australian Dollars.
15.2 The Tenderer must quote all prices making clear if they are with or without the addition of GST.
15.3 Payment will be made on delivery of goods.
16. CONFLICT OF INTEREST
16.1 Tenderers must not place themselves in a position which may, or does give rise to a conflict of interest
between themselves and SUSF during the Tender Process.
16.2 If any actual or potential conflict of interest with SUSF arises at any time during the Tender Process, the
Tenderer is to immediately notify SUSF in writing.
16.3 In the event of an actual or potential conflict of interest SUSF may, in its absolute discretion:
(a) resolve any actual or potential conflict of interest with a Tenderer; or
(b) reject the Tender lodged by such a Tenderer; or
(c) take any other action it considers appropriate.
17. ALTERNATIVE TENDER
17.1 Tenderers are encouraged to offer options or solutions, which in a novel or innovative way, contribute to
SUSF’s ability to carry out its business in a more cost-effective manner. These may be related to the
functional, performance and technical aspects of the requirements or to opportunities for more
advantageous commercial arrangements. These options will be considered commercial in confidence.
17.2 The Tenderer may submit a Tender that does comply with SUSF’s Requirements if:
(a) the Tenderer also lodges a Tender conforming with SUSF’s Requirements; and
(b) the Tender not complying with SUSF’s Requirements
A. is identified as an “Alternative Tender”;
B. clearly specifies wherever it fails to comply with SUSF’s Requirements;
C. states the reasons for each non-compliance and demonstrates, in detail, how the alternative
will benefit SUSF; and
D. is accompanied with any supplementary material, together with associated prices.
17.3 SUSF reserves the right either to consider Alternative Tenders on their merits or not to consider them
further.
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18. TENDER CONSTITUTES BINDING OFFER
A Tender constitutes an irrevocable, unalterable offer by the Tenderer to SUSF which must remain valid
and open to be accepted for a period of no less than 90 days from the Closing Time and may be extended
by written agreement. Tenderers may state in their Tender a period of more than 90 days from the
Closing Time for which their Tender remains valid for acceptance.
19. EVALUATION OF TENDERS
19.1 The evaluation process will be undertaken with the aim of determining which Tender represents best
value for money to SUSF. In determining value for money, Tenders will be assessed against the following
evaluation criteria:
Compliance Criteria
Compliance with:
Conditions of Tender;
Contract, including quality of garments; and
SUSF Requirements.
Qualitative Criteria
Capability of the Tenderer to fulfil SUSF’s Requirements, including technical and
management competence, financial viability, relevant skills, experience and availability of
personnel;
The extent to which the price represents value for money; and
The degree to which the services meet SUSF’s Requirements.
19.2 Following the receipt of Tenders, SUSF, in its absolute discretion, may:
(a) use any relevant information obtained in relation to a Tender (through this RFT or by
independent inquiry) in the evaluation of Tenders;
(b) enter into discussions or negotiations with any one or more Tenderers; and
(c) seek clarification or additional information from any Tenderer.
19.3 Tenderers must comply with any requests to provide additional information or clarification in relation to
their Tender within the timeframe specified.
19.4 SUSF may exclude from consideration in the evaluation of Tenders additional information provided by
Tenderers, whether received in response to a request or otherwise.
19.5 SUSF is not obliged to accept the lowest priced or any other Tender.
20. FORMATION OF CONTRACT
20.1 The successful Tenderer will be required to sign the Contract supplemented by the addition of relevant
information, requirements, or variations:
(a) contained in the successful Tender;
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(b) arising during the Tender evaluation; and
(c) arising out of discussions and negotiations.
20.2 No contractual relationship or other obligation arises between SUSF and a Tenderer, for the supply of
SUSF’s Requirements, until SUSF and the successful Tenderer formally exchange signed counterparts of
the Contract. This clause applies despite any oral or written advice to the Tenderer that a Tender is
successful or has been, or will be, accepted.
21. TAXATION
The Tenderer must provide its Australian Business Number (ABN). If the Tenderer holds no ABN, the
reason for not having an ABN must be stated. Should Tenderers choose not to register or disclose details
of their ABN, PAYG withholding tax may apply and SUSF is required by law to deduct the relevant amount
from any payment under the Contract and to remit the relevant amount to the Australian Taxation Office.
22. TENDERERS TO INFORM THEMSELVES
22.1 Tenderers are considered to have:
(a) examined this RFT, any documents referenced in this RFT and any other information made available
by SUSF to Tenderers for the purpose of tendering;
(b) examined all further information which is obtainable by the making of reasonable inquiries relevant
to the risks, contingencies, and other circumstances having an effect on their Tender;
(c) satisfied themselves as to the correctness and sufficiency of their Tenders including Fees; and
(d) satisfied itself as to the terms and conditions of the Contract and its ability to comply with the
Contract.
22.2 Tenders are submitted on the basis that Tenderers acknowledge that:
(a) they do not rely on any representation, letter, document or arrangement, whether oral or in writing,
or other conduct as adding to or amending these Conditions other than amendments in accordance
with clause 7;
(b) they do not rely upon any warranty or representation made by or on behalf of SUSF, its officers,
employees, agents or advisers except as are expressly provided for in this RFT, but they have relied
entirely upon their own inquiries and inspection in respect of the subject of their Tender;
(c) SUSF will not be responsible for any costs or expenses incurred by Tenderers in complying with the
requirements of this RFT; and
(d) neither this RFT nor the Tender give rise to contractual obligations between SUSF and the Tenderer.
22.3 SUSF will not be liable to any Tenderer on the basis of any promissory estoppel, quantum meruit or other
contractual, quasi contractual or restitutionary grounds whatsoever or in negligence as a consequence of
any matter relating or incidental to a Tenderer’s participation in this Tender Process including instances
where:
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(a) a tenderer is not invited to participate in any subsequent process following completion of this Tender
Process;
(b) SUSF varies or terminates the Tender Process;
(c) SUSF decides not to contract for all or any of the requirements; or
(d) SUSF exercises or fails to exercise any of its other rights under or in relation to this RFT.
23. SUSF’s RIGHTS
Without limiting its rights at law or otherwise, SUSF reserves the right in its absolute discretion at any
time to:
(a) cease to proceed with the process outlined in this RFT, including the right not to proceed with the
RFT, and not to enter into a Contract;
(b) allow any Tenderer to change its Tender;
(c) call for new Tenders;
(d) accept or reject any Tender that does not comply with this RFT;
(e) waive or vary any obligation of any Tenderer under this RFT;
(f) negotiate with any person who is not a Tenderer and enter into a Contract in relation to this
exercise with that person on such terms as SUSF in its absolute discretion accepts;
(g) add to, alter, delete or exclude any requirement including the inclusion of any additional
requirements;
(h) publish the names of the successful Tenderers; and
(i) to forward to any other Tenderer on a non-attributable basis SUSF’s response to any Tenderer’s
request for clarification on any aspect of the RFT.
24. APPLICABLE LAW
24.1 The law applying to the State of New South Wales applies to the RFT, and the tendering process.
24.2 Tenderers should familiarise themselves with all relevant policies relating to the provision of SUSF’s
Requirements.
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DICTIONARY
In this RFT, unless a contrary intention appears, the following definitions and rules of interpretation shall apply:
“Agreement” means the Contract. These terms are used interchangeably throughout this RFT.
“Alternative Tender” means a Tender submitted pursuant to clause 17 of the Conditions;
“Business Day” means a day that is not a Saturday, a Sunday, or a public holiday.
“Consultant” means the Person with whom SUSF enters into a contract to provide SUSF’s Requirements;
“Contract” means the draft agreement forming Part D of this RFT.
"Closing Time" means the closing time and date for submission of Tenders pursuant to clause 2 of the
Conditions;
"Contact Officer" means the person identified as Contact Officer in the Conditions;
“Cover Sheet” means the tender cover sheet forming Part D of this RFT;
"GST" means any tax imposed under any GST law and includes GST within the meaning of the GST Act;
"GST Act” means the A New Tax System (Goods and Services Tax) Act 1999 (Commonwealth) as amended;
"GST Law" means the GST law as defined in the GST Act and includes any Act of the Parliament of
Australia that imposes or deals with GST;
“Legislative Requirement” means any Act or subordinate legislation of the Commonwealth or New South
Wales legislature.
"Person" includes a natural person, a corporation, a partnership, a board, a joint venture, an incorporated
association, a government, a local government authority and an agency;
"Request For Tender" or "RFT" means this document inviting Tenderers to offer to deliver SUSF’s
Requirements by submitting a Tender as provided in this document;
“Services” or “SUSF’s requirements” means the services described in Part B of this RFT.
"Tender" means the documents constituting an offer by the Tenderer to deliver SUSF’s Requirements;
“Tender Process” means the tendering process outlined in this RFT;
"Tender Title" means the Tender Title shown on the cover page of this RFT;
"Tenderer" means a Person who offers to deliver SUSF’s Requirements;
"University” means the University of Sydney;
"SUSF’s Requirements" or “Services” means the services described in Part B of this RFT.
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PART B
SUSF’S REQUIREMENTS
On January 1, 2003, the Sydney University Sports Union (1890) and the Sydney University Women's Sports
Association (1910) amalgamated and created this country's premier tertiary sporting body. In 2008, the
organisation was renamed and Sydney Uni Sport & Fitness was launched.
Today, SUSF manages and administers more than 45 sport and recreation clubs, organises sporting and recreation
events and offers a comprehensive range of sporting facilities to students and the wider Sydney community.
SUSF is a not-for-profit entity accountable to a large number of stakeholders including the University of Sydney. It
operates in a competitive environment in which very high standards of accountability are required.
SUSF is seeking to appoint a clothing supplier, and it is anticipated that a major component of the supply will be
uniforms for staff.
SUSF will require the successful tenderer to enter into a Contract a draft of which is attached to this Tender.
Whilst not contracted, there is an expectation of support anticipated from both Parties wishing to work
collaboratively together. SUSF is also able to provide sponsorship benefits to the successful Tenderer by way of
the following:
Recognition as the Official Clothing Supplier;
Branding and signage;
Tickets to Games; and
Brand exposure by way of logo placement in:
i. SUSF email sign off; and
ii. SUSF annual reports.
There are eight distinct Departments at SUSF, five of which require clothing.
Programs & Participation
The P&P department runs all participation based sport: social netball and tennis competitions, inter-faculty sport,
inter-college sport and individual short courses of Pilates and yoga to name a few.
On top of this, P&P run School Holiday Camps (SHC), providing sports coaching to approximately 3,000 children
every year. T-shirts, caps and/or water bottles are provided to all participants at these camps.
Operations & Infrastructure
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Ops run all the buildings and grounds, including the Sports Centres (Sports & Aquatic Centre, Arena and Tempe
Gyms, and the TAG Family Foundation Grandstand). Most of these are open from 5am to 11pm and therefore
involve a large roster of staff who all require uniforms.
Ops also encompasses the Grounds staff and the swim school, both of which need uniforms; with swim school
staff needing uniforms made of a material that can “breathe” whilst they are on pool deck.
Marketing
Marketing run all of SUSF’s marketing and social media. Marketing is most in need to apparel during the
University of Sydney’s “O-Week” (the week prior to students commencing in March) and again at the beginning of
Semester 2 (July/Aug).
High Performance
HP look after all 45 of SUSF’s affiliated sporting clubs. HP requires not only staff uniforms, but also clothing for
“Australian Uni Sport, National Championships”: a week on the Gold Coast in Sept/Oct when SUSF take up to 550
student athletes to compete.
Elite Athlete Program
The Elite Athlete Program awards scholarships to those athletes studying at the University of Sydney. There are
currently 375 athletes on scholarship. Since 1990, Elite Sydney University student athletes have been helped to
excel in both their sport and studies.
The Program gives to athletes 3-4 items per year, and each year rotates what those items will be.
1. FORM OF TENDER
Tenderers must provide their tender as:
original hard copy (2 copies); and
1 electronic copy compatible with the Microsoft® Word or PDF format.
2. CONTENTS OF TENDER
The Tender must contain:
(a) Cover Sheet completed and signed by the Tenderer or for and on behalf of the Tenderer by a
person who warrants their authority to sign for the Tenderer;
(b) Executive Summary;
(c) Company Information, including brief solvency record;
(d) Clothing expertise
(e) Staff resources who will deliver the services to SUSF including:
i. the person who will be primary contact with SUSF;
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ii. the key personnel and their relevant experience to be attached to the Tender;
(f) Proposal outlining details of SUSF resources which may be required to assist in undertaking the
review;
(g) Length of preferred term (maximum three years); and
(i) Proposed timeline for completion of clothing orders including availability of key personnel.
3. ADDITIONAL MATERIAL
The Tender may contain
(a) written references;
(b) names of past or existing clients who SUSF may contact for a reference as to the Tenderer’s ability
to work with SUSF and to deliver high quality services;
(c) Further options for consideration by SUSF in line with section 17 of Part A of this RFT; or
(d) any other information the Tenderer considers appropriate.
Samples will only be necessary if the Tenderer is selected as a finalist to present to SUSF, the week
commencing 6th November 2017.
4. SCOPE OF CLOTHING SUPPLY PER DEPARTMENT
Programs & Participation
ITEM SHC NETBALL/
TENNIS STAFF
INTER FAC
Children’s T-shirts (lower quality acceptable, given away for free) 1700
Water Bottles 3500
Caps 1900 1900
Cotton Polos 50 30 10
Jumpers 30
Operations & Infrastructure
ITEM SWIM
SCHOOL STAFF GROUNDS
Training shirts 35 40
Water Bottles
Vests 2
Cotton Polos 40
Jumpers 12 10
Shorts 15
Back Packs
Tracksuit pants 20
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Marketing
ITEM O WEEK STAFF RE
O WEEK
T-shirts 1100 60
Water Bottles 400 400
Back Packs 400 400
Cotton Polos 10
High Performance
ITEM AUG STAFF
Caps 600
Jackets 20
Vests 20
Cotton Polos 40
Jumpers 20
Singlets 600
Long sleeved T-shirts 600
Elite Athlete Program
ITEM ATHLETES
Training shirts
300-400
Of 3 items
Water Bottles
Vests
Cotton Polos
Jumpers
Shorts
Back Packs
Tracksuit pants
Singlets
Long sleeved T-shirts
Caps
Socks
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PART C
TENDER COVER SHEET
DATE:
Sydney Uni Sport & Fitness
Sports & Aquatic Centre
Building G09
University of Sydney
Darlington NSW 2006
CLOSING TIME for submission of Tenders 5.00 P.M. Wednesday 1st November 2017.
REQUEST FOR TENDER COVER SHEET
I/we submit this offer, by way of tender, to deliver SUSF’s Requirements specified in the above-mentioned
Request for Tender (“RFT”) at the prices tendered and in accordance with the Contract in Part C of the RFT
(“Contract”). This Tender comprises:
(1) this Tender Cover Sheet;
(2) [Note to Tenderer: List the documentation submitted to comply with the RFT].
(3) ………………….
I/we declare that:
Compliance with the RFT
(a) The Tenderer undertakes to participate in the RFT process in accordance with the RFT.
(b) This Tender is complaint with all sections of the RFT (including the Contract) [except to the extent
stated below];
Notes to Tenderer: If the Tender does not comply or fully comply with the Conditions of Tender, including the
Contract, the Tenderer must include a statement specifying each condition or requirement with which the Tender
does not comply or fully comply with and indicating, for each condition or requirement the reason(s) for the non-
compliance.
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Acceptance
(a) This Tender constitutes a complete offer relating to all matters required for the completion of the
contract to deliver SUSF’s Requirements and is capable of immediate acceptance by SUSF.
(b) This Tender remains open for acceptance until [insert date].
Notes to Tenderer: Clause 18 of the Conditions of Tender provide that the Tender must remain valid and open to
be accepted for a period of no less than 90 days from the Closing Time.
Accuracy and Correctness of Tender
(a) The information and particulars provided as part of this Tender are accurate and correct.
Conflict of Interest
(a) To the best of our knowledge, information and belief neither the Tenderer or its employees or advisers
have placed themselves in a position which may have given or did give rise to a conflict of interest or a
potential conflict of interest between the interests of the Tenderer or its employees or advisers and the
interests of SUSF in relation to this RFT process.
Authorisation
(a) I am/we are duly authorised to sign this Tender Cover Sheet for and on behalf of the Tenderer.
Signed by the Tenderer or for and on behalf of the Tenderer by
………………………………………………………….
a person who by his/her signature duly warrants his/her authority to sign
Name of Tenderer:
Address of Tenderer:
(Include email & telephone no.)
ABN of Tenderer:
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PART D
DRAFT CONTRACT
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SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT made on [ ]
BETWEEN
Sydney University Sport, trading as Sydney Uni Sport & Fitness (ABN 96 121 520 371), of University Sports
and Aquatic Centre, Building G09, The University of Sydney, NSW 2006 (“SUSF”);
AND
[ ] (ABN [ ]) of [ ] (“Supplier”)
BACKGROUND
A. SUSF is an unincorporated association, which is part of The University of Sydney.
B. Supplier is a company which [ ].
C. SUSF has agreed to grant Supplier the right to provide the Service, upon the terms and conditions
contained within this Agreement.
IT IS HEREBY AGREED AS FOLLOWS:
1 Definitions and Interpretation
1.1 Definitions
In this Agreement, unless the contrary intention appears:
“Agreement” - means this supply agreement comprising the clauses of this document.
“Confidential Information” - means the confidential information of a Party, the terms and negotiations of
this Agreement, as well as information, documents SUSF’s and Supplier’s personal details, SUSF or SUSF
Club Product purchase information, computer disks, accounts, know-how, plans, drawings, specifications,
designs, customer lists, supplier lists, ideas, trade secrets, any dispute between the Parties, and all other
information whatsoever pertaining to a Party or the business of a Party that is not in the public domain.
“Corporations Act” - means the Corporations Act 2001 (Cth).
“Insolvency Event”- means in relation to a Party, the occurrence of one or more of the following:
a) The Party stops or suspends or threatens to stop or suspend payment for all or a class of its debts;
b) That Party is insolvent within the meaning of the Corporations Act;
c) A court is required, by reason of the Corporations Act to presume that the Party is insolvent;
d) That Party fails to comply with a statutory demand of the Corporations Act;
e) An administrator is appointed over all or any of that Party’s assets or undertakings, or any step
preliminary to the appointment of an administrator is taken;
f) A controller within the meaning of the Corporations Act or similar officer is appointed to all or any of
that Party’s assets or undertakings; or
g) An application or order is made, proceedings are commenced, a resolution is passed or proposed in a
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notice of meeting or an application to a court or other steps taken (other than frivolous or vexatious
applications, proceedings, notices or steps) for its winding up or dissolution or for that Party to
enter an arrangement, compromise or composition with, or assignment for the benefit of its
creditors of, a class of them or any of them.
“CPI” – means the most recent available quarterly all groups. All groups Consumer Price Index rate
published by the Australian Bureau of Statistics that is the weighted average of the eight capital cities of
Australia.
“Intellectual Property”- means copyright, all rights conferred under statute, common law or equity in
relation to inventions (including patents), registered and unregistered trademarks, registered and
unregistered designs, look and feel, circuit layouts and all other rights resulting from intellectual activity
in, but not limited to, the industrial, scientific, literary or artistic fields.
“Force Majeure” – means an unforeseen act or event that, due to causes beyond the control of that
Party, causes the Party to be unable to comply with the terms of this Agreement. The unforeseen act or
event can include fire, storm, flood, earthquake, explosion, accident, war, rebellion, insurrection,
transportation embargoes, inability to secure raw materials and acts of God.
“Representative” means [ ]
“Services” means [ ]
“Supplier Marks” – means the Supplier logo, names, trademarks, trade names, logos, symbols, emblems,
designs, or other indicia and any other Intellectual Property whatsoever, registered or unregistered,
currently owned and in existence or to be developed in the future by South
“Party” - means either SUSF or Supplier as the context dictates.
“Related Body Corporate” - has the meaning provided in section 9 of the Corporations Act.
“SUSF Marks”- means the SUSF logo, names, trademarks, trade names, logos, symbols, emblems, designs,
or other indicia and any other Intellectual Property whatsoever, registered or unregistered, currently
owned and in existence or to be developed in the future by SUSF or The University of Sydney. For the
avoidance of doubt, SUSF Marks does not include or incorporate SUSF Club marks, logos, names,
trademarks, trade names, symbols, emblems designs, or other SUSF Club indicia and any other SUSF Club
Intellectual Property.
“Term”- means the term as set out in clause 2 of this Agreement.
1.2 Interpretation
In this Agreement, unless the context requires otherwise:
a) The singular includes the plural and vice versa;
b) A gender includes the other genders;
c) The index (if any) and the headings are used for convenience only and do not affect the
interpretation of this Agreement;
d) A reference to a thing includes a reference to a part of that thing;
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e) A reference to a document includes the document as modified from time to time and any
document replacing it;
f) The word "person" includes a natural person and any body or entity whether incorporated or
not;
g) The word "month" means calendar month and the word "year" means twelve months;
h) A reference to a business day means a day on which banks are open for retail banking business
other than a Saturday or Sunday in Sydney, New South Wales, Australia and Melbourne,
Victoria, Australia. If something is to be done on a day which is not a business day then that
thing must be done on the next or following business day;
i) A reference to any statute, proclamation, rule, regulation or ordinance includes any
amendments, consolidation, modification, re-enactment or reprint of it or any statute,
proclamation, rule, regulation or ordinance replacing it. A reference to a specified section,
clause, paragraph, schedule or item of any statute, proclamation, rule, regulation or ordinance
means a reference to the equivalent section of the statute, proclamation, rule, regulation or
ordinance which is for the time being in force;
j) Money amounts are stated in Australian currency unless otherwise specified;
k) All amounts stated in this Agreement are exclusive of Goods and Services Tax (“GST”). If GST is
payable on any taxable supply of services under this Agreement, the recipient of the taxable
supply must pay to the supplier an additional amount equal to the GST payable on the taxable
supply, subject to the recipient receiving a valid tax invoice from the supplier to enable the
recipient to receive an input tax credit for the GST paid to the supplier; and
l) A reference to any agency or body, if that agency or body ceases to exist or is reconstituted
renamed or replaced or has its powers or functions removed ("defunct body"), means the
agency or body which performs most closely the functions of the defunct body.
2 Term
2.1 This Agreement commences on [ ] (‘Commencement Date’) and will continue until [ ] (‘Term’),
unless otherwise terminated in accordance with the terms of this Agreement.
3 Renewal
3.1 This Agreement is for the Term as detailed in clause 2, and accordingly Supplier will be required to
continue providing the Services up to and including the last date of this Agreement, unless the
engagement is terminated earlier in accordance with this Agreement.
4 Supply arrangement
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4.1 For the Term of the Agreement, SUSF will annually place all of the clothing orders with Supplier in
accordance with the terms of this Agreement.
4.2 For the Term of the Agreement SUSF agrees to grant Supplier exclusivity as the supplier of clothing
for SUSF.
4.3 Supplier acknowledges and agrees that SUSF may already have supply, purchasing, or sponsorship
agreements with providers other than Supplier, entered into prior to this Agreement, and that
nothing in this agreement precludes SUSF from continuing those supply, purchasing, or sponsorship
agreements with providers other than Supplier.
5 SUSF Mark Usage
5.1 SUSF acknowledges and agrees that Supplier can promote itself as a ‘Preferred Supplier to SUSF’
(with or without use of the SUSF Marks).
5.2 Supplier acknowledges and agrees that SUSF can promote the fact that the SUSF is proud to be in a
supply relationship with Supplier (with or without the use of Supplier logo, business name and
trade marks).
5.3 Supplier acknowledges and agrees that:
a) Supplier may only use the SUSF Marks for the Term, for the purposes of, and in accordance with
this Agreement only;
b) The SUSF Marks are the exclusive property of SUSF and other than as provided in this Agreement,
may not be used, altered, incorporated into Supplier’s logo or reproduced by Supplier or anyone
in any way without the prior written approval of SUSF;
c) Supplier shall submit details of any proposed use of the SUSF Marks to SUSF prior to any use
including use for any advertising, marketing or promotional purpose; and
d) Any use of the SUSF Marks which do not meet the standards of SUSF must be destroyed upon
direction by SUSF.
5.4 SUSF acknowledges and agrees that:
a) SUSF may only use the Supplier Marks for the Term, for the purposes of, and in accordance with
this Agreement only;
b) The Supplier Marks are the exclusive property of Supplier and other than as provided in this
Agreement, may not be used, altered, incorporated into SUSF’s logo or reproduced by SUSF or
anyone in any way without the prior written approval of Supplier;
c) SUSF shall submit details of any proposed use of the Supplier Marks to Supplier prior to any use
including use for any advertising, marketing or promotional purpose; and
d) Any use of the Supplier Marks which do not meet the standards of Supplier must be destroyed
upon direction by Supplier.
5.5 After the expiration or termination of this Agreement, both Parties will cease to use, display or make
any reference to the trademarks, logos, services or trading names of the other Party and will also not
in any way hold itself out as having a continuing sponsorship association with the other Party.
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6 Obligations
6.1 Supplier must ensure that all clothing supplied under this Agreement:
a) meets mutually agreed levels of quality; and
b) complies with all standards, requirements and directions notified by SUSF from time to
time.
6.2 At the end of each month, Supplier will report to SUSF on all work completed in that month and
any additional information requested including but not limited to:
a) [ ].
b) all financial figures requested by SUSF to ensure full transparency in relation to the charges
levied for all projects.
6.3 Each party must exercise the rights and pursue the opportunities granted under this Agreement in
a manner consistent with the good name, goodwill, reputation and image of the other party and in
compliance with all applicable laws, regulations and industry standards.
6.4 Only the parties may exercise the rights granted under this Agreement. For the avoidance of doubt,
the rights under this Agreement may not be exercised by a Related Body Corporate, agent or
contractor of a party.
6.5 Supplier must engage a named Representative(s) to perform the Services.
6.6 If the agreed Representative(s) becomes unable to perform the Services on your behalf for any
reason, SUSF are not obliged to accept the performance of the Services by another person.
6.7 Supplier is solely responsible for the employment of the Representative(s) and all employment
costs of the Representative(s). Supplier acknowledge that SUSF will not make any payments to
Supplier or the Representative(s) in respect of public holidays, annual leave, parental leave,
personal/carer’s leave, long service leave, redundancy or termination of employment.
6.8 Supplier is responsible for ensuring that both Supplier and Representative(s) comply with all
applicable occupational health and safety laws, all safety instructions that we issue (including any
health and safety notices and handbooks) and all reasonable directions that we may issue to
Supplier or your Representative regarding health and safety.
6.9 Supplier must ensure that all plant, tools, equipment and substances that are used in providing the
Services under this Agreement are provided in a safe and serviceable condition and are used in
accordance with their operating instructions.
6.10 If Representative(s) engages in conduct which, in SUSF’s reasonable opinion, causes a serious risk
to health and safety, SUSF may direct Supplier to remove your Representative from SUSF premises,
and Supplier must comply with that direction immediately. Supplier must also ensure that a
Representative removed in this way does not return to the location without SUSFs prior written
consent.
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6.11 Supplier agrees to immediately notify SUSF upon becoming aware of any health and safety
incidents that occur in the provision of the Services, or of any involvement by relevant health and
safety authorities in matters relating to the provision of the Services.
7 Confidentiality
During and after the Term of this Agreement, SUSF and Supplier agree to:
a) Keep all Confidential Information confidential;
b) Take all reasonable and necessary precautions to maintain the confidentiality and prevent the
disclosure of any Confidential Information; and
c) Not disclose any Confidential Information to any third party;
d) Not use any part of or make copies of any Confidential Information,
except:
a) As required by law, the rules of any applicable stock exchange, or any applicable accounting
standards;
b) As made in confidence to a Party's professional advisors; or
c) If made to a Party's officers, employees or agents for the purpose of performing a Party's
obligations under this Agreement, and having, to the extent practicable, consulted with the
other Party with a view to agreeing to the form, content, timing and manner of disclosure.
8 Warranty
In signing this Agreement, and continuing to provide Services in accordance with it, Supplier warrants
that:
8.1 SUSF warrants to Supplier that it has full power, capacity and authority to enter into and perform
its obligations under this Agreement.
8.2 Supplier warrants to SUSF that it has full power, capacity and authority to enter into and perform
its obligations under this Agreement.
8.3 Each person signing this Agreement represents and warrants that he or she is duly authorised and
has legal capacity to execute and deliver this Agreement on behalf of the Party.
8.4 there are no legal restrictions that would prevent Supplier providing the Services.
8.5 Representative is duly qualified to provide the Services.
8.6 Supplier is not aware of any actual or potential conflict of interest in Supplier providing the
Services.
8.7 Supplier will act lawfully in providing the Services.
8.8 Supplier will not infringe the Intellectual Property of any third parties in providing the Services.
8.9 Supplier has complied with all relevant legislation, awards and industrial instrumentation in
engaging or employing the Representative.
8.10 Supplier has a valid ABN that has been advised to SUSF.
8.11 Supplier is registered for GST purposes.
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9 Termination
9.1 SUSF may terminate this Agreement immediately by written notice to Supplier if:
a) Supplier is the subject of an Insolvency Event;
b) Supplier commits an act, or any of its representatives commit an act, which in the reasonable
opinion of SUSF causes harm to the name, reputation products or services of SUSF;
c) A substantial change occurs in shareholder control of Supplier which affects the ability of
Supplier to perform its obligations under this Agreement or is detrimental to the interests of
SUSF;
d) Supplier commits a material breach of this Agreement and that breach has not been remedied
to the reasonable satisfaction of SUSF within twenty one(21) days of receipt of written
notification from SUSF requesting rectification of that breach;
e) Supplier uses the SUSF Marks otherwise than in accordance with this Agreement or claims
interests adverse to the rights of SUSF or directly or indirectly makes any claim or commences
proceedings which challenges the validity, or enforcement, of SUSF to use or licence the use of
the SUSF Marks; or
f) Supplier itself breaches or terminates the Sponsorship Agreement before the expiration date of
the Sponsorship Agreement.
9.2 Supplier may terminate this Agreement by giving 30 days by written notice to SUSF if:
a) SUSF is the subject of an Insolvency Event;
b) SUSF fails to perform any of its obligations as set out in this Agreement and, if the failure is
capable of being remedied, fails to remedy the non-performance within twenty-one (21) days
of being requested to do so in writing by Supplier;
c) SUSF commits an act, or any of their representatives commit an act, so as to reasonably cause
harm to the name, reputation products or services of Supplier;
d) SUSF uses the Supplier Marks otherwise than in accordance with this Agreement or claims
interests adverse to the rights of Supplier or directly or indirectly makes any claim or
commences proceedings which challenges the validity, or enforcement, of Supplier to use or
licence the use of the Supplier Marks;
e) SUSF breaches or terminates the Sponsorship Agreement before the expiration date of the
Sponsorship Agreement.
9.3 This Agreement may be also terminated by mutual consent of the parties in writing and in accordance
with the terms and conditions of this Agreement and any plan of termination established by the
parties. In the event of a termination by mutual consent, the date of termination shall be such date as
is agreed upon by the parties.
9.4 Notwithstanding clauses 9.1 to 9.3 above, either Party shall also have the right to terminate this
Agreement before 30 June 2014 by giving 14 days written notice to the other Party if a Force Majeure
continues for a period of 30 consecutive days or more.
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9.5 In the event of termination for any reason both Parties will:
a) From the date of termination, not use the name, logo or trademarks of the other Party in
connection with its own, or any other, name nor in any way hold itself out as having a
continuing association with the other Party;
b) Not use, and will return, or on the other Party’s instruction destroy, any Confidential
Information (in whatever form) concerning that other Party, which it may have acquired in the
course of, or incidental to, this Agreement, concerning that other Party, for its own benefit or
to the detriment, or intended or probable detriment, of that other Party; and
c) Immediately cease all use of property, including Intellectual Property, of that other Party.
9.6 The rights of termination set out in this clause 9 are additional to and not in substitution for any other
remedy a Party may have in respect of a breach of this Agreement. The termination of this
Agreement in accordance with this clause 9 will not affect any rights or remedies of the Parties that
have accrued prior to the date of termination.
10 Conflict of Interest
10.1 Supplier may engage in other work during the term of this Agreement, provided that performing
this work does not conflict with obligations under this Agreement.
10.2 If Supplier becomes aware of any actual or potential conflict of interest between obligations
under this Agreement and any other work Supplier has been offered or is undertaking, Supplier
must immediately inform SUSF in writing.
10.3 Supplier agrees that Supplier will take all steps as SUSF reasonably require to resolve or otherwise
deal with (to SUSFs satisfaction) any actual or potential conflict. This includes ceasing to perform
the conflicting work or assignment.
11 Indemnity
11.1 Supplier is liable for, and agree to indemnify SUSF, our officers, employees and
contractors/suppliers in respect of, any claim, action, damage, loss, cost, charge, expense, penalty,
fine or payment which we suffer, incur or are liable for as a result of:
(a) the manner in which the Services are performed;
(b) any of your employees or agents claiming that they are our employee, including claims for
wages, public holidays, annual leave, parental leave, personal leave, long service leave,
redundancy or termination of employment;
(c) any breach by Supplier of your obligations or warranties under this Agreement;
(d) any breach by your Representative of the obligations set out in their signed undertaking; or
(e) any court, tribunal or authority whatsoever determining that your Representative is held or
deemed to be our employee under any law.
11.2 Supplier obligations under this clause 11 survive termination of this Agreement.
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12 Disputes
If a dispute arises, the dispute must be referred to a SUSF appointed representative and Supplier for
resolution. If not resolved within 10 days of such referral it must be referred for resolution to a panel
consisting of a senior management representative of each of the parties. If the dispute is not
resolved, or the panel does not meet within 10 days of such referral, either party may commence
legal proceedings.
13 Notice
Any notice, approval, consent or other communication in relation to this Agreement must be in
writing and marked for the attention of:
a) In the case of a notice to SUSF, the Executive Director of SUSF; and/or
b) In the case of a notice to Supplier, [ ].
14 Entire Agreement
14.1 This Agreement contains the entire understanding between the Parties concerning the subject
matter of the Agreement and supersedes all prior communications between the Parties.
14.2 Each Party acknowledges that, except as expressly stated in this Agreement, that Party has not
relied on any representation, warranty or undertaking of any kind made by or on behalf of the
other Party in relation to the subject matter of this Agreement.
15 No Waiver
A failure, delay, relaxation or indulgence by a Party in exercising any power or right conferred on
the Party by this Agreement does not operate as a waiver of the power or right. A single or partial
exercise of the power or right does not preclude a further exercise of it or the exercise of any other
power or right under this Agreement. A waiver of a breach does not operate as a waiver of any
other breach.
16 No Assignment
A Party shall not assign, mortgage or otherwise deal with any of its rights and obligations under this
Agreement without the prior written consent of the other Party.
17 Successors and Assigns
This Agreement binds and benefits the Parties and their respective successors and permitted
assigns.
18 No Variation
This Agreement cannot be amended or varied except in writing and signed by the Parties.
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19 Merger
The rights and obligations of the Parties expressed to continue beyond the expiration or
termination of the Agreement shall continue in full force and effect and shall not merge upon
completion.
20 Survival of Agreement
The covenants, conditions and provisions of this Agreement which are capable of having effect
after the expiration of the Agreement shall remain in full force and effect following the expiration
of the Agreement.
21 Governing Law and Jurisdiction
This Agreement and its formation is governed by and must be construed in accordance with the
laws of New South Wales and the Commonwealth of Australia. The parties submit to the exclusive
jurisdiction of the Courts of that State and the Commonwealth of Australia in respect of all matters
or things arising out of this Agreement.
22 Counterparts
This Agreement may be executed in any number of counterparts, and this has the same effect as if
the signatures on the counterparts were on a single copy of this Agreement. Without limiting the
foregoing, if the signatures on behalf of one party are on different counterparts, this shall be taken
to be, and have the same effect as, signatures on the same counterpart and on a single copy of this
Agreement
Executed as an agreement:
Executed for and on behalf of SUSF by:
By: ____________________________
Name: Robert Daniel Smithies
Position: Executive Director, Sydney Uni Sport & Fitness
Date:___________________________
EXECUTED on behalf of the corporation named below by the authorized person whose signature appears
below pursuant to the authority specified.
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Corporation: [ ].
Authority: Section 127(1) of the Corporations Act.
........................................................
Director/Sole Director and Secretary
........................................................
Name and Title of Signatory (block
letters)
........................................................
Director/Secretary
........................................................
Name and Title of Signatory (block
letters)
Name: __________________________________
Position: __________________________________
Date:__________________________________________