This web page records the Standard Terms and Conditions that apply to Purchase Orders issued or revised on or after 9 November 2023.
Please note: The Standard Terms and Conditions valid for Purchase Orders issued or revised prior to 9 November 2023 can be found here.
1. Application of Terms
(a) If nbn issues a purchase order to acquire Goods or Services from the Supplier (PO), then, subject to clauses 1(b) to 1(d), these Terms will apply to that PO.
(b) Where there is an existing written agreement in place between nbn and the Supplier, or nbn and the Supplier enter into a written agreement, in relation to any Goods or Services specified in a PO, the terms of that written agreement will apply to the supply of those Goods or Services, and these Terms will not apply unless there is an express statement to the contrary specified in the PO.
(c) nbn may, in its absolute discretion, issue a statement of work in relation to the Goods or Services the subject of a PO (Statement of Work). The terms of any Statement of Work issued by nbn in relation to a PO are hereby expressly incorporated into that PO.
(d) All other terms and conditions (including any Supplier or third party terms and conditions) are excluded and, in no event, will such terms and conditions be incorporated into a Statement of Work, PO or these Terms, except for the terms of the nbn Policies. To the extent of any inconsistency between the terms in a nbn Policy, a Statement of Work, PO and these Terms, the order of priority of these documents will reflect the order in which these documents are listed in this clause 1(d).
2. Formation of PO Contracts
(a) The Supplier may confirm acceptance of a PO and any applicable Statement of Work by notice in writing to nbn, or by supplying the Goods or Services or any part of them.
(b) Subject to clauses 1(b) and 1(d), when the Supplier accepts a PO and any applicable Statement of Work, a contract for the supply of the Goods and Services specified in the PO and any applicable Statement of Work is formed between the Supplier and nbn on these Terms and the terms specified in the PO and any applicable Statement of Work (PO Contract).
(c) Each PO Contract is a separate and independent contract that will continue in accordance with its terms unless terminated in accordance with its terms.
3. No exclusivity
The Supplier acknowledges that it is not the exclusive provider of the Goods and Services or any goods or services the same as or similar to the Goods and Services.
4. Supply of Goods and Services
The Supplier acknowledges that it is not the exclusive provider of the Goods and Services or any goods or services the same as or similar to the Goods and Services.
(a) The Supplier must, and must ensure that the Supplier’s Personnel and sub-contractors:
(i) supply the Goods, Services and Work Product in accordance with the PO Contract, their Specifications, all applicable Laws, and the reasonable directions of nbn; and
(ii) comply with all Laws applicable to the performance of its obligations under the PO Contract at all times.
(b) The Supplier must ensure that all Goods and Work Product delivered to nbn are clearly identified and, where possible, packaged using environmentally friendly packaging materials.
(c) The Supplier must supply any documentation described in the PO Contract and any other documentation or information required to enable nbn to operate, make full use of, and maintain the Goods, Services and any Work Product.
5. Compliance
The Supplier must, and must ensure that the Supplier’s Associates, comply with all nbn Policies when performing the Supplier’s obligations under the PO Contract.
6. Cancellation or variation of a PO Contract
(a) Unless otherwise specified in the relevant PO and subject to clause 6(b), nbn may, acting reasonably and at any time before delivery of the relevant Goods, Services or Work Products, cancel the PO Contract by giving written notice to the Supplier.
(b) If nbn cancels the PO Contract pursuant to clause 6(a) , then nbn will reimburse the Supplier for reasonable and substantiated costs incurred up to the date of Cancellation in performing the Supplier's Activities. Such reimbursement will be reduced to the extent the Supplier has not taken all reasonable steps to minimise such costs from the date it receives notice of Cancellation under clause 6(a).
(c) Subject to clause 6(d), nbn may at any time before delivery seek to vary its requirements for the Goods, Services or Work Product by notice in writing to the Supplier, and any such variation must be agreed in writing between the parties (and such agreement may be evidenced by Supplier supplying the varied Goods, Services or Work Product or any part of it). In the event that the variation is not agreed between the parties, then the Goods, Services or Work Product will not be varied.
(d) If nbn varies its requirements for the Goods, Services or Work Product required pursuant to clause 6(c), in the event that the Supplier has incurred expenses in meeting any requirements for the Goods, Services or Work Product prior to the date of the notice issued pursuant to clause 6(c), then nbn will reimburse the Supplier for such of those expenses as are reasonably agreed between the parties.
7. Access to nbn's Premises
(a) The Supplier must ensure that the Supplier's Personnel:
(i) access the Premises only when reasonably necessary for the Supplier's Activities and coordinate with nbn in relation to such access;
(ii) when accessing the Premises:
(A) comply with all reasonable requirements of nbn in relation to such access, including requirements given pursuant to a nbn Policy, any site security or induction procedure, or a direction by nbn; and
(B) take reasonable care not to:
(1) damage any of nbn's property; or
(2) endanger the health and safety of nbn's Personnel and other persons at the Premises; or
(3) interrupt or interfere with nbn operations.
(b) nbn will not be liable for any personal injury (including death) or loss of, or damage to, property suffered by any of the Supplier’s Personnel when present at the Premises, except where such injury, loss or damage is caused by the negligence or wilful misconduct of nbn.
8. Safety
Where any work is performed by the Supplier’s Personnel on any Premises or in connection with the Services, Goods or Work Products, the Supplier must:
(a) control and supervise all aspects of the work performed by the Supplier’s Personnel, and ensure that such work is only undertaken without risks to the safety, health and welfare of any persons and in compliance with any relevant work health and safety policy or procedure established by the Supplier and in compliance with all nbn Policies relating to work health and safety;
(b) advise nbn immediately of any hazard or safety incident with respect to the Premises or arising out of the provision of the Services, Goods or Work Products, and provide nbn with any assistance, as requested, in relation to the incident, including by preparing any rectification plan or schedule;
(c) assist nbn with respect to its defence to any actual or potential claim or prosecution with respect to work performed at the Premises or in connection with the Services, Goods or Work Products;
(d) assist nbn in the conduct of any work health and safety review, and provide periodic updates to nbn regarding work health and safety performance; and
(e) nominate a suitably qualified person to act as the representative of the Supplier with respect to any work health and safety matters arising out of the PO Contract.
9.Defective Items
(a) nbn may, acting reasonably, at any time reject Defective Items by providing the Supplier, as soon as practicable after nbn becomes aware of the Defective Items, with written notice of its rejection (Defective Items Notice) including written evidence (to the satisfaction of the Supplier) of the non-conformity.
(b) Within 5 Business Days of the date of the Defective Items Notice, the Supplier must review the notice and notify nbn in writing whether it accepts or rejects the notice and, if rejected, provide written reasons for its rejection.
(c) If the Supplier accepts the Defective Items Notice or otherwise fails to respond within the time period specified in clause 9(b), or it is determined through dispute resolution that the relevant Goods, Services or Work Products are Defective Items, then the Supplier will, at nbn’s election:
(i) supply replacement Goods, Services or Work Products that satisfy the Specifications as soon as practicable; or
(ii) refund all payments made by nbn for the Defective Items.
(d) If the Supplier rejects the Defective Items Notice, then senior representatives of each party must meet within 5 Business Days of the date of service of Supplier's rejection and use all reasonable endeavours to resolve the matter. If the matter is not resolved within 15 Business Days of the date of service of the Supplier's rejection (or such other period as the parties may agree in writing), then either party may commence legal proceedings in respect of the Defective Items.
(e) This clause does not apply to any Defective Items which do not comply with the Specifications as a result of nbn's conduct.
10. Delivery, risk and title
(a) Unless otherwise specified in the PO Contract, time will be of the essence with respect to the Supplier's delivery obligations under the PO Contract.
(b) Title and risk in any Goods or Work Product passes from the Supplier to nbn as follows:
(i) if nbn conducts any inspection or testing under clause 10, on the date that nbn notifies the Supplier that the relevant Goods or Work Product has passed such inspection or testing; or
(ii) if nbn does not conduct any inspection or testing under clause 10, on the date that nbn otherwise accepts the Goods or Work Product by written notice,
(Acceptance Date).
11. Payment
(a) Unless otherwise specified in the PO Contract, the Supplier may invoice nbn for the Fees at the times specified in the PO Contract. If no such times are specified, the Supplier may invoice nbn on the Acceptance Date or, in the case of Services, on the date that nbn accepts delivery or performance of the Services by written notice.
(b) nbn will pay any correctly rendered, undisputed invoice issued by the Supplier under the PO Contract within 30 days from the end of the month in which the invoice is received by nbn.
(c) The Fees are inclusive of all costs and expenses incurred by the Supplier and no further amounts are payable by nbn unless otherwise specified in the PO Contract.
(d) If nbn disputes the amount of an invoice, it may, on written notice to the Supplier, withhold or suspend payment of any disputed part of the disputed invoice until that dispute is resolved. nbn must pay any undisputed part of the disputed invoice within the time specified in paragraph 1.1(b), and, where any disputed amount is subsequently found to be payable to the Supplier, must pay that amount promptly. To the extent that the Supplier has continuing obligations under a PO Contract, it must continue to fulfil those obligations in accordance with the PO Contract, notwithstanding a dispute over invoices that it has issued to nbn.
12. GST
Unless otherwise specified in the PO Contract, the Fees are inclusive of all taxes, levies, rates, charges and imposts of any kind, including withholding tax but excluding GST. If any supply under the PO Contract is a Taxable Supply, then the party making the supply may, at the same time that an invoice is rendered for the agreed consideration for the Taxable Supply, recover the amount of GST payable on that Taxable Supply, subject to the issue of a valid Tax Invoice. Unless the context indicates otherwise, terms used in this clause 13 which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) have the same meaning as in that Act.
13. Intellectual Property
(a) The Supplier presently and unconditionally assigns, and must procure the assignment of, to nbn, all present and future Intellectual Property Rights in any Work Product immediately upon creation, free of encumbrances and third party rights. The Supplier must, at its own cost, do all things necessary to give effect to this clause 13(a), including executing any required documents or effecting any required registrations.
(b) The Supplier grants, and must procure the grant, to nbn a worldwide, perpetual, irrevocable, royalty-free, non-exclusive, transferable licence (with the right to sub-licence) to use any Intellectual Property Rights which are comprised in the Goods, Services and Work Product and which are not assigned to nbn pursuant to clause 13(a) to the extent required for nbn to receive, use, maintain and modify the Services, Goods and Work Product for the internal and external business purposes of nbn.
(c) The Supplier must obtain in writing from all individual authors and performers involved in the creation of any Work Product an irrevocable Moral Rights Consent and provide such Moral Rights Consents to nbn on request by, and in a form acceptable to, nbn. Where a Work Product is software, the Supplier must also deliver to nbn the source code on request.
(d) The Supplier must not incorporate any Open Source Materials into any Work Product or Goods without the prior written consent of nbn.
14. Confidentiality
(a) Each party (disclosing party) must keep confidential, and not disclose, any Confidential Information of the other party, except:
(i) where the disclosing party has obtained the prior written permission of the other party;
(ii) to the disclosing party's officers, agents, professional advisers, employees, contractors, sub-contractors, auditors and insurers, provided that it directs such persons to keep confidential all such Confidential Information and, where disclosure is to professional advisers, contractors, sub-contractors, auditors and/or insurers, procures from such persons a written undertaking that such persons will keep confidential all such Confidential Information and only use such Confidential Information for the purpose for which it was disclosed in connection with the PO Contract;
(iii) to the disclosing party's Related Bodies Corporate; and
(iv) where the disclosing party is compelled to do so by Law, provided that it gives the other party written notice prior to disclosure.
(b) Each party must only use Confidential Information of the other party for the purpose for which it was disclosed in connection with the PO Contract.
(c) nbn may disclose Confidential Information of the Supplier:
(i) to any government minister, assistant minister, or Department on written instruction or request by a Government Agency or to either of nbn’s Shareholder Ministers; or
(ii) on the written instruction of either of nbn’s Shareholder Ministers or their Departments (whether or not specifically directed towards the PO Contract), for the purpose of any Government Agency making its mandatory biannual internet listing identifying relevant details of material contracts including the Supplier's name, subject matter, term and value of the PO Contract.
nbn is a government business enterprise whose shareholders are Ministers of Parliament. nbn therefore requires the above rights to comply with its duties to the Shareholder Ministers.
(d) The Supplier must not make any public statement or issue any press release concerning or relating to the PO Contract or its relationship with nbn unless it has first obtained the written consent of nbn to do so.
(e) Without limiting any other obligation of or restriction on the Supplier expressed or implied in the PO Contract:
(i) the Supplier must never input or use any Restricted Input in an Automated Content Generation Service; and
(ii) to the extent that the Supplier uses an Automated Content Generation Service to deliver Services or perform its obligations under the PO Contract, then the Supplier must ensure that:
(A) it is authorised to use that Automated Content Generation Service (including its outputs);
(B) the output of that Automated Content Generation Service does not infringe or violate any rights of nbn or any third party; and
(C) its use of that Automated Content Generation Service complies with the terms of the PO Contract and all applicable laws and regulations.
15. Privacy and data protection
(a) The Supplier must not, without nbn’s prior written consent (which may be given or withheld at nbn’s reasonable discretion and subject to any conditions required by nbn) export, disclose or transfer, or permit the export, disclosure or transfer of, any nbn Data outside Australia, or otherwise allow any person outside Australia to access any nbn Data.
(b) The Supplier must:
(i) ensure that all Supplier Personnel and the Personnel of any Supplier subcontractor used to perform the Supplier’s Activities are fit and proper to perform his or her proposed role;
(ii) ensure that no Malicious Code is introduced by the Supplier, any of its sub-contractors, any Supplier Personnel or any third party under the direction or control of the Supplier into any environment or other equipment, software or system of nbn or any of its Related Bodies Corporate; and
(iii) operate and maintain security policies and systems, having regard to the nature of the Supplier’s Activities and associated security risks, such as password protection and protection against unauthorised access to the Supplier’s systems.
(c) The Supplier must notify nbn as soon as possible after becoming aware of any security incident having occurred in relation to the Supplier's Activities (Security Incident), and promptly confirm the Security Incident in a written report to nbn and the steps the Supplier intends to take to remedy the Security Incident.
(d) The steps to be taken by the Supplier to remedy the Security Incident must be reviewed and approved by nbn.
(e) To the extent the Security Incident exposes any nbn Data or any information technology system owned or used by nbn or any of its Related Bodies Corporate to a risk or threat of any unauthorised access or interference, the Supplier must comply with nbn’s reasonable direction to mitigate or remove the risk or threat at no additional cost to nbn.
16. Warranties
(a) The Supplier warrants, and it is a condition of the PO Contract, that on delivery, acceptance and during any applicable Warranty Period:
(i) all Goods, Services and Work Product will:
(A) comply with their Specifications and meet the requirements of the PO Contract;
(B) be able to be used, assembled, handled, stored, dismantled, decommissioned and disposed of, without risk to the health or safety of any person; and
(C) be fit for the purpose for which they are supplied;
(ii) all Goods and Work Product will:
(A) be free from material defects in design, materials and workmanship; and
(B) be newly manufactured and not second hand;
(iii) without limiting the generality of clauses 17(a)(i) and 17(a)(ii), all Goods that are software will be free from any code or software designed to disable or reduce the functionality of that software, permit unauthorised access to any software, or disable any software or data;
(iv) the use of any new release, fix or work-around will not degrade the functionality or performance of any software in any way; and
(v) all Services will:
(A) be performed with due care and skill, in a professional, efficient and safe manner, and to best industry standards; and
(B) be performed by suitably qualified and experienced Personnel.
(b) The Supplier warrants, and it is a condition of the PO Contract, that the supply of any Goods, Work Product and Services, and the use of those Goods, Work Product and Services, does not and will not contravene any Laws, or infringe any rights of a third party (including any Intellectual Property Rights).
(c) During any applicable Warranty Period, the Supplier must, at no additional charge and without prejudice to any other rights or remedies of nbn, repair, collect and replace or resupply any Goods, Services or Work Product that do not comply with any of the applicable warranties.
17. Indemnity
The Supplier must pay on demand to nbn an amount equal to all Losses suffered or incurred by nbn or its Personnel (those indemnified) arising out of or in connection with:
(a) the death or personal injury of any person;
(b) loss of, or damage to, any property;
(c) any loss or corruption of or alteration or damage to nbn Data, or any unauthorised access to or use of nbn Data, if the Supplier has access to nbn Data in connection with the PO Contract;
(d) any breach of Law (including any failure by the Supplier to comply with legislation relation to health and safety, the Privacy Act 1988 (Cth), or Part 13 of the Telecommunications Act 1997 (Cth)), or any obligation under clause 5;
(e) any act or omission of fraud, dishonesty, reckless or wilful misconduct or misrepresentation;
(f) any breach of clause 15,
to the extent caused or contributed to by any act or omission of the Supplier or the Supplier's Associates and in the course of carrying out the Supplier's Activities.
18. Liability
(a) Subject to clause 19(b) and unless otherwise agreed under a PO Contract, to the extent permitted by applicable Law, the aggregate liability of nbn arising under or in connection with a PO Contract in any calendar year (whether in contract, tort (including negligence), statute, equity or otherwise) is limited to the Fees paid or payable by nbn under the PO Contract in that calendar year.
(b) Unless otherwise agreed under a PO Contract, clause 19(a) does not limit nbn's liability in respect of respect of Losses suffered or incurred by the Suppler and its Personnel arising out of or in connection with:
(i) the death or personal injury of any person; or
(ii) fraud or wilful misconduct by nbn,
to the extent caused or contributed to by any act or omission of nbn, or nbn’s Personnel in connection with the PO Contract.
(c) The Supplier agrees and acknowledges that it is responsible for all Loss suffered or incurred by nbn as a result of any act or omission of the Supplier and the Supplier's Associates and that nbn may claim any such Loss from the Supplier. That is, to the extent permitted by Law:
(i) the operation of the apportionment of liability provisions in the Apportionment Legislation is excluded in relation to any and all claims, rights, obligations and liabilities arising under or in relation to the PO Contract, howsoever such claims, rights, obligations or liabilities are sought to be enforced; and
(ii) the parties agree that their rights, obligations and liabilities will be those which would exist if the Apportionment Legislation did not apply.
(d) Without limiting clause 18 or clause 19(b), neither party is liable for any Indirect Loss suffered in connection with a PO Contract, whether arising under contract, tort (including negligence), statute, equity or otherwise.
19. Insurance
(a) The Supplier must comply with Laws with respect to the requirement to hold workers compensation insurance, and hold:
(i) liability insurance including public liability and product liability insurance, each for an amount not less than $20 million any one occurrence and, in respect of products liability, in the annual aggregate, or such other amount appropriate to the Supplier's activities, including loss of or damage to personal and real property of nbn (including documents and records); and
(ii) professional indemnity insurance for an amount not less than $10 million for any one claim and in the annual aggregate, or such other amount as is appropriate to the Supplier's activities, for breach of professional duty whether incurred in contract, tort or otherwise by reason of any act, omission of the Supplier,
(together, the insurance policies).
(b) The Supplier must provide, on nbn's request, certificates of currency and such other evidence satisfactory to nbn of insurance coverage specified in this clause 20.
(c) The Supplier must effect the insurance policies before starting to supply the Goods, Services and Work Products and maintain them until the PO Contract has terminated or expired, or as otherwise required by nbn.
20. Term
The PO Contract commences on the date it is accepted by the Supplier (or such other date as may be specified in the PO Contract) and continues until the PO Contract is terminated or cancelled pursuant to these Terms, or until each party has fulfilled its obligations under the PO Contract, whichever occurs first.
21. Termination
(a) nbn may terminate the PO Contract (in whole or in part) by immediate effect upon written notice to the Supplier:
(i) if the Supplier breaches any obligation under the PO Contract including any breach of a nbn Policy, which is incapable of remedy or which is capable of remedy, but is not remedied within 10 Business Days of receipt of a notice from nbn specifying the breach and requiring it to be remedied;
(ii) if any Goods or Work Product are required to be delivered or installed, or any Services are required to be completed, prior to a specified delivery date, and the Goods or Work Product are not delivered or installed, or the Services are not completed, prior to that date, or nbn reasonably determines that the Goods or Work Product will not be delivered or installed, or the Services will not be completed, prior to that date, in each case because of a breach of the PO Contract by the Supplier;
(iii) if the Supplier or any of its Personnel commit any act of fraud or dishonesty in relation to the PO Contract;
(iv) if the Supplier or any of its Personnel does anything that materially damages or is likely to materially damage the brand or reputation of nbn;
(v) if a Change in Control occurs in relation to the Supplier;
(vi) if the Supplier becomes insolvent, bankrupt or enters into liquidation or administration; or
(vii) for any breach of clause 15 or where a security breach relating to nbn's networks or systems or nbn Data occurs as a result of any act or omission of the Supplier.
(b) The Supplier may terminate the PO Contract (in whole or in part) by immediate effect upon written notice to nbn:
(i) if nbn breaches any obligation under the PO Contract including any breach of a nbn Policy, which is incapable of remedy or which is capable of remedy, but is not remedied within 10 Business Days of receipt of a notice from the Supplier specifying the breach and requiring it to be remedied;
(ii) if nbn or any of its Personnel commit any act of fraud or dishonesty in relation to the PO Contract; or
(iii) to the extent permitted by law, if nbn becomes insolvent, bankrupt or enters into liquidation or administration.
22. Consequences of Termination
(a) As soon as practicable after expiry, termination or cancellation of the PO Contract, the Supplier must:
(i) provide to nbn a copy of all Work Product (including any incomplete Work Product and, where that Work Product is, or comprised of, software, the source code of such software) produced under the PO Contract;
(ii) return, and must ensure that all the Supplier’s Personnel return, to nbn and/or at nbn's request, permanently and securely destroy all Confidential Information, nbn Data, equipment, records, documents and materials provided by nbn for the purposes of the PO Contract, including any security passes and keys in their possession or control, unless such information is required for the purposes of clause 23(b) and any other PO Contract between nbn and the Supplier that remains on foot.
(b) As soon as practicable after expiry, termination or cancellation of the PO Contract, the Supplier must provide such services as nbn reasonably requests to achieve an orderly, uninterrupted transition of the supply of any relevant Services to nbn or a replacement supplier of similar services appointed by nbn, such services to be provided at the time and materials rates to be agreed by the parties.
(c) Clauses 10, 14, 15, 16, 18, 19, 22and 23 and any other obligations which are expressed to or, by their nature, survive expiry or termination, will survive expiry or termination of the PO Contract and are enforceable at any time at law or in equity.
23. Subcontracting
(a) The Supplier must not subcontract any of its obligations under a PO Contract without the prior written consent of nbn.
(b) To the extent that the Supplier subcontracts any of its obligations to a third party, the Supplier will remain liable to nbn for each act and omission of that third party in connection with the performance of such obligations as if it were an act or omission of the Supplier.
(c) The Supplier must ensure that its subcontractors comply with all applicable Laws, nbn Policies and all other directions or requirements that apply to the provision of Services, Goods or Work Product under the terms of a PO Contract.
24. General
(a) Entire Agreement. Without prejudice to clause 1(b), the PO Contract constitute the entire agreement between the parties in connection with the subject matter of the PO Contract and supersede all previous agreements or understandings between the parties in connection with the relevant subject matter. No oral explanation or information provided by any party to another affects the meaning or interpretation of the PO Contract or constitutes any collateral agreement, warranty or understanding between the parties.
(b) Assignment. The Supplier must not assign, novate or otherwise transfer any of its rights or obligations under the PO Contract without nbn's prior written consent. The Supplier agrees that nbn may assign or transfer the whole or part of the PO Contract where there is any sale of any part of the nbn business.
(c) Variation. No variation of these Terms is effective unless made in writing and signed by each party.
(d) Relationship. The parties are independent contractors and nothing in the PO Contract gives rise to any relationship of agency, partnership, employment or otherwise.
(e) Set-off. nbn may, by notice to the Supplier, reduce any Fees or other charges or costs payable to the Supplier under the PO Contract by any fee, credit, rebate or other amount which is payable to nbn under or in connection with the PO Contract.
(f) Notices. All notices given under the PO Contract must be given by a party to the other party at the addresses specified in the PO Contract or as otherwise notified by the other party from time to time.
(g) Waiver. No waiver of a right or remedy under the PO Contract is effective unless it is in writing and signed by the party granting it.
(h) Severability of provisions. Any provision of the PO Contract that is prohibited or unenforceable in any jurisdiction is ineffective as to that jurisdiction to the extent of the prohibition or unenforceability. That does not invalidate the remaining provisions of the PO Contract (as applicable), nor affect the validity or enforceability of that provision in any other jurisdiction.
(i) Governing law. The PO Contract is governed by the Laws of New South Wales and each party submits to the exclusive jurisdiction of the courts of New South Wales.
(j) Counterparts. The PO Contract may consist of a number of counterparts and, if so, the counterparts taken together constitute one document.
(k) No representations or warranties. The parties acknowledge and agree that, other than the express representations and warranties given in the PO Contract and to the extent permitted by Law, no representation has been made and no warranty is or has been expressly or impliedly given by or on behalf of that party in respect of any matter relating to the PO Contract.
25. Definitions
In the PO Contract:
Apportionment Legislation means
(a) Part 4 of the Civil Liability Act 2002 (NSW) and any corresponding statutory provision in any other State or Territory of Australia;
(b) Part VIA of the Competition and Consumer Act 2010 (Cth);
(c) Part 7.10, Division 2A of the Corporations Act 2001 (Cth); and
(d) Part 2, Division 2, Subdivision GA of the Australian Securities and Investments Commission Act 2001 (Cth).
Automated Content Generation Service means any product or service (whether it uses artificial intelligence technology or not) that can produce, generate or return an output (including but not limited to text, image, sound, video, etc) based on an input.
Business Day means a day on which banks are open for business excluding Saturdays, Sundays and public holidays in New South Wales.
Change in Control means the happening of circumstances or events following which a person becomes Controlled by another person, alone or together with any associates, who did not previously Control the first person. For the purposes of this definition, Control is defined in the Corporations Act 2001 (Cth).
Cloud Infrastructure means cloud computing software, hardware or other infrastructure or services, whether public, private, community-based or otherwise.
Confidential Information in relation to a party means information of a confidential nature including information about its business, operations, strategy, administration, technology, affairs, clients, customers, employees, contractors or suppliers, but does not include any information which is in the public domain other than through a breach of confidence.
Defective Items means any Goods, Services or Work Products that do not comply with the Specifications.
Department means a Department of State of the Commonwealth of Australia, within the meaning given to that term in the Acts Interpretation Act 1901 (Cth).
Fees means the amounts payable by nbn under the PO Contract for any Goods or Services (including any Work Product).
Goods means goods described in the PO Contract, and includes all acts, matters and things that may be necessary for and incidental to the proper and efficient supply or use of such goods.
Government Agency means any government or any government, administrative, fiscal or judicial body, department, commission, authority, tribunal, agency or entity in any part of the world.
Indirect Loss means loss of revenue, loss of profit, loss of goodwill, loss of anticipated savings, loss of opportunity, and any other Loss, not arising naturally and according to the usual course of things from the relevant breach, whether or not such Loss may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the relevant breach.
Intellectual Property Rights means all copyright, trade mark, design, patent, semiconductor and circuit layout rights, trade, business, company and domain names, confidential and other proprietary rights, and any other rights to registration of such rights whether created before or after the date of the PO Contract anywhere in the world.
Law means any applicable statute, regulation, by-law, ordinance, or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth or a local government, and includes the common law and equity as applicable from time to time, and any mandatory standards or industry codes of conduct.
Loss means any loss, damage, liability, charge, expense, outgoing, cost, fine, payment (including all legal and other professional costs on a full indemnity basis) of any nature.
Malicious Code means any files, programmes or programme code in any part of a software, firmware or hardware system or script that is intended to affix itself to, bury itself within or send instructions to, other files, computers, or other programmes or programme code to cause malfunctions, errors or destruction, corruption or disclosure of data, or to lower protective security controls to enable security breaches to occur.
Minister means a Minister of State for the Commonwealth of Australia, within the meaning given to that term in the Acts Interpretation Act 1901 (Cth).
Moral Rights means the moral rights set out in the Copyright Act 1968 (Cth) and any similar rights under foreign laws.
Moral Rights Consent means a waiver of Moral Rights to the extent permitted by Law and an unconditional consent sufficient to allow nbn, and each of their respective licensees and assigns from time to time to use, disclose, reproduce, adapt, copy, publish, perform, exhibit, transmit, communicate, modify and translate the Work Product anywhere in the world, in any form and in any circumstances: (i) which, but for the waiver or consent, would infringe the Moral Rights of any author or performer involved in the creation or performance of the Work Product, including without attributing authorship to any author or performer of any Work Product; and (ii) for any purpose relating to the business of nbn, including in any manner provided in any PO Contract, or as otherwise agreed by the parties.
nbn means NBN Co Limited ABN 86 136 533 741 of Level 40, 360 Elizabeth Street, Melbourne VIC 3000.
nbn Data means:
(a) all data and information (whether or not Confidential Information) relating to nbn, its business, operations, facilities, customers, Personnel, assets, products, sales, transactions, security events, configurations, environments, uses and systems, in whatever form such information may exist and whether entered into, stored in, generated by or processed as part of the Services, Goods or Work Product; and
(b) all other data and information provided to the Supplier by or on behalf of nbn, or otherwise obtained by the Supplier on behalf of nbn, in connection with the PO Contract, including any:
(i) database in which such data or information is contained;
(ii) documentation or records related to such data or information; or
(iii) results of the use or manipulation of such data or information.
nbn Networks and Facilities means telecommunications networks and facilities owned, operated or used by nbn.
nbn Policies means:
(a) nbn's 'Supplier Code of Conduct' (available at https://www.nbnco.com.au/corporate-information/about-nbn-co/suppliers#tab4); and
(b) all other nbn policies, procedures and standards which relate to the Supplier's Activities (available at https://www.nbnco.com.au/corporate-information/about-nbn-co/policies/corporate-policies),
current as at the later of the order date or the revision date (as specified on the PO).
Open Source Materials means any materials which are distributed subject to: (i) the licence terms known as the 'GNU General Public Licence', or the 'GNU Lesser General Public Licence' or any substantially similar licensing terms; or (ii) any other terms authorising use by the public generally, but also requiring modifications, adaptations or derivations of, or enhancements to, those materials to be made available to the public on particular terms.
Personal Information has the meaning given to that term in the Privacy Act 1988 (Cth).
Personnel means, in respect of a party, individuals, however engaged, by that party, its Related Bodies Corporate, or any of their subcontractors, and includes employees, officers, secondees, agents, consultants, advisers, contractors and subcontractors (who are individuals).
Premises means premises owned, leased or otherwise occupied by nbn.
Related Body Corporate is defined in the Corporations Act 2001 (Cth).
Resources means Personnel, plant, vehicles, equipment, premises, facilities, software, hardware, Work Products, procedures, processes, and other resources.
Restricted Input includes:
(a) nbn Data; and
(b) Personal Information provided by or on behalf of nbn under the PO Contract or through the provision of the Services.
Services means the services described in the PO Contract and includes all acts, matters and things that may be necessary for and incidental to the proper and efficient supply or use of such services.
Shareholder Department means each of the Department of Communications and the Department of Finance (or their successor Departments).
Shareholder Minister means each of the Ministers responsible for administering each of the Shareholder Departments from time to time.
Specifications means, in respect of a Good, Service or Work Product, the requirements for that Good, Service or Work Product set out or referred to in:
(a) the PO Contract or developed by the Supplier under the PO Contract, including all agreed requirements and specifications as to design, quality, functionality, performance, interoperability, testing and other matters;
(b) any sample or demonstration provided by the Supplier to nbn;
(c) all published specifications for that Good, Service or Work Product (as applicable), including the Supplier’s or third party manufacturer's specifications.
In the event of any inconsistency between the Specifications comprised in paragraphs (a) to (c) above, the order of priority of these Specifications will reflect the order in which these Specifications are listed in this definition.
Supplier means the entity identified as the supplier in the PO Contract.
Supplier’s Activities means any obligations which the Supplier is or may be required to provide or carry out and complete under the PO Contract.
Supplier’s Associates means:
(d) any Related Body Corporate of the Supplier;
(e) any contractor or sub-contractor of the Supplier or a Related Body Corporate of the Supplier; and
(f) any Personnel of the Supplier or any entity referred to in paragraph (a) or (b);
who performs or may perform work in connection with the Supplier’s Activities.
Terms means these Standard Terms.
Warranty Period means, unless otherwise agreed in writing by the parties:
(a) in the case of Goods that are software, 90 days; and
(b) in the case of all other Goods and Work Product, 12 months, from the Acceptance Date.
Work Product means all things, materials, documents, information and items developed by or on behalf of the Supplier or its Personnel in the course of or in connection with the supply of the Services in any form whatsoever (including electronic form) and includes all inventions, software, databases, models, drawings, plans, artwork, designs, logos, reports, advices, proposals and records, including all things described as Work Product in the PO Contract.
26. Interpretation
In the PO Contract the following rules of interpretation apply unless the contrary intention appears:
(a) headings are for convenience only and do not affect the interpretation of the PO Contract;
(b) the singular includes the plural and vice versa;
(c) words that are gender neutral or gender specific include each gender;
(d) where a word or phrase is given a particular meaning, other parts of speech and grammatical forms of that word or phrase have corresponding meanings
(e) the words 'such as', 'including' and similar expressions are not to be interpreted as words of limitation;
(f) a reference to:
(i) a person includes a natural person, partnership, joint venture, government agency, association, corporation or other body corporate;
(ii) a thing (including a chose in action or other right) includes a part of that thing;
(iii) a party includes its successors, permitted assigns and permitted persons substituted by novation;
(iv) a document includes all amendments or supplements to that document;
(v) a clause, term, party, schedule, annexure or attachment is a reference to a clause or term of, or party, schedule, annexure or attachment to, a PO Contract;
(vi) subject to clause 1(c), the PO Contract includes all schedules, annexures and attachments to it;
(vii) a law includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced;
(viii) an agreement other than the PO Contract includes an undertaking, or legally enforceable arrangement or understanding, whether or not in writing;
(ix) writing includes any mode of representing or reproducing words in tangible and permanently visible form, and includes facsimile transmissions;
(x) an obligation includes a warranty or representation and a reference to a failure to comply with an obligation includes a breach of warranty or representation;
(xi) a right includes a benefit, remedy, discretion or power;
(xii) time is to local time in Sydney, Australia; and
(xiii) a monetary amount is in Australian dollars;
(g) an agreement on the part of two or more persons binds them jointly and severally;
(h) when the day on which something must be done is not a Business Day, that thing must be done on the following Business Day;
(i) in determining the time of day, where relevant to a PO Contract, the relevant time of day is:
(i) for the purposes of giving or receiving notices, the time of day where a party receiving a notice is located; or
(ii) for any other purpose under the PO Contract, the time of day in the place where the party required to perform an obligation is located;
(j) no rule of construction applies to the disadvantage of a party because that party was responsible for the preparation of the PO Contract, or any part of them; and
(k) in the event of any inconsistency between a term which is defined in these Terms and the same term which is separately defined in a schedule, annexure or attachment to the PO, the meaning of the defined term in that schedule, annexure or amendment will prevail but solely with respect to the use of that relevant defined term in such schedule, annexure or amendment.