supply of electricity - v 4.1.01 (december 2012) web viewimpressions of company owned franking...

Conditions: Tendering and Contract

Supply of Electricity

Effective Date: December 2012Version No. 4.1.01

Issued byProcurement Policy Unit

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Table of Contents

1 Conditions of Tendering.............................................................................................71.1 Definitions..........................................................................................................71.2 Lodgement of Tenders......................................................................................71.3 Tenderers to Inform Themselves......................................................................91.4 Compliance With NT Procurement Code..........................................................91.5 Collusion..........................................................................................................101.6 Enquiries.........................................................................................................101.7 Other Communications Between Tenderers and the Principle.......................101.8 Site Inspection.................................................................................................111.9 Industry briefing...............................................................................................121.10 Site Rules........................................................................................................121.11 Signing of Documents.....................................................................................121.12 Tender Validity................................................................................................131.13 Alternative Tenders.........................................................................................131.14 Pricing – Taxes, Duties, Fees etc...................................................................141.15 Pricing – General Requirements.....................................................................141.16 Treatment of Low or Aberrant Prices..............................................................141.17 Competitive Neutrality.....................................................................................151.18 Local Development..........................................................................................151.19 Industry Participation Plan...............................................................................161.20 Part Offer.........................................................................................................161.21 Change to the Conditions of Contract.............................................................171.19 Disclosure of Percentage Weightings.............................................................171.20 Tender Assessment Criteria............................................................................171.21 Clarification of Information...............................................................................181.22 Negotiation......................................................................................................181.23 Sole Discretion of Principal.............................................................................181.24 Disclosure........................................................................................................191.25 Performance Report........................................................................................191.26 Privacy Notice.................................................................................................191.27 Availability of Tenderers..................................................................................191.28 Tender Award..................................................................................................191.29 Debriefing of Tenderers...................................................................................19

2 Conditions of Contract.............................................................................................202.1 Definitions........................................................................................................202.2 Interpretation...................................................................................................222.3 Governing Law................................................................................................232.4 Entire Agreement............................................................................................232.5 Term of Contract.............................................................................................232.6 Option for Extension of Contract.....................................................................232.7 Sale and Purchase of Electricity.....................................................................232.8 Obligations of the Principal..............................................................................242.9 Obligations of the Contractor..........................................................................242.10 Site Rules........................................................................................................262.11 Status of Contractor........................................................................................272.12 Metering and Data Acquisition........................................................................272.13 Change to Installation and Meter Numbers.....................................................272.14 Delivery and Title of Electricity Supplied.........................................................272.15 Contractor’s Rates...........................................................................................272.16 Take or Pay Restriction...................................................................................282.17 Usage in Excess of Estimated Load...............................................................282.18 Notice of Impending Volume Breach...............................................................282.19 Relevant Taxes...............................................................................................282.20 Changes to Regulated Fees............................................................................292.21 Goods and Services Tax.................................................................................29

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Table of Contents

2.22 Accounts..........................................................................................................292.23 Form of Account and GST...............................................................................292.24 Rounding of Dollars.........................................................................................302.25 Time for Payment............................................................................................302.26 Amended Accounts and Overcharges............................................................302.27 Final Invoice....................................................................................................302.28 Contractor’s Right to Suspend or Disconnect Supply.....................................302.29 Obligations of Contractor in Suspension or Disconnection.............................312.30 Intervening Events...........................................................................................312.31 Disputes..........................................................................................................322.32 Principal Default..............................................................................................332.33 Contractor Default...........................................................................................332.34 Termination by mutual agreement..................................................................332.35 Effect of Termination.......................................................................................342.36 No Liability for Loss or Profit...........................................................................342.37 Indemnity.........................................................................................................342.38 Statutory Limitations of Liability.......................................................................342.39 Conflict of Interest...........................................................................................342.40 Confidential Information..................................................................................342.41 Compliance with Procurement Code...............................................................352.42 Local Development..........................................................................................352.43 Amendments...................................................................................................352.44 Assignment......................................................................................................352.45 Sub-contracting...............................................................................................352.46 Performance Report........................................................................................352.47 Privacy.............................................................................................................362.48 Notices............................................................................................................372.49 Costs...............................................................................................................372.50 Entire Agreement............................................................................................372.51 Severance.......................................................................................................372.52 Waivers...........................................................................................................372.53 Special Conditions...........................................................................................37

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1 Conditions of Tendering

1.1 DefinitionsIn these Conditions of Tendering, unless the contrary intention appears:

a) Addendum means any document expressly stated to be an Addendum, which is issued by the Principal varying some provision in the RFT prior to the stated closing time and date;

b) Annexure means document titled “Annexure to Conditions of Tendering and Contract” set out in section 3 of this RFT which details the specific requirements applicable to the Conditions of Tendering and Contract;

c) Principal means the Northern Territory of Australia;

d) Request for Tender or RFT means the request for tender issued by the Principal including the scope of requirements, all annexures, schedules, attachments and all Addenda made in writing prior to the closing date and time stated on the front cover of the request for tender.

e) Site means the site or sites to which electricity will be supplied, as detailed in the scope of requirement contained in the RFT.

f) Tender means all documents lodged by the Tenderer in response to the RFT.

g) Tenderer means an entity that submits a Tender in response to the RFT.

1.2 Lodgement of TendersFor the Tender to be considered, the Tenderer shall complete in full and submit one copy of the documents listed in the section of the Annexure to the Conditions of Tendering and Contract titled “Documents to be Lodged” (i.e. Response Schedules):

a) in English;

b) in the form required; and

c) to be fully received by the stated time and date for closing of the Tender.

Any Tender that does not comply with these conditions or which contains provisions not required or allowed by the RFT may result in the Tender being declared ineligible for consideration.

Oral Tenders or Tenders submitted by electronic mail (other than via the Quotations and Tenders Online eLodgement Service) shall be declared ineligible for consideration.

The Principal shall not be liable for any expense or loss, which may be incurred by any Tenderer in the preparation of its Tender. Once lodged, the Tender shall become the property of the Principal.

1.2.1 Closing Time and DateTenders will close at the time and on the date stated on the front cover of the RFT.

1.2.2 Lodged by HandTenders delivered by hand (including commercial courier services) shall be enclosed in a sealed envelope marked with the RFT Number and closing date. NOTE: Lodgement by commercial courier service is NOT PERMITTED at the Palmerston Quotation and Tender Box.

The preferred Quotation and Tender Box for lodgement of the hand delivered Tender is as stated on the cover of the RFT. Tenders however may be lodged by hand in any of the following Quotation and Tender Boxes:

Department of Treasury and FinanceContract and Procurement ServicesGround Floor, Enterprise House28-30 Knuckey StDARWIN NT 0800

Department of Treasury and Finance1st Floor, Herbarium4 The BoulevardPALMERSTON NT 0830

Department of Treasury and Finance1st Floor, NT Government Centre5 First StreetKATHERINE NT 0850

Department of Treasury and Finance1st Floor, Alice PlazaCorner Parsons Street and Todd MallALICE SPRINGS NT 0870

Department of Treasury of FinanceShop 2, Ground Floor, Barkly House99 Paterson StreetTennant Creek NT 0860

Tenderers lodging by hand in other than the Quotation and Tender Box referred to on the front cover of the RFT must take particular care to show the RFT Number and closing time and date on the envelope.

1.2.3 Lodged by PostTenders sent by prepaid post must be directed to the postal address stated on the cover of the RFT.

1.2.4 Lodged by FacsimileTenders sent by facsimile must be directed to the facsimile number stated on the cover of the RFT.

Supply of Electricity Version 4.1.01 – Page 8

1.2.5 Lodged by Electronic LodgementWhere electronic lodgement has been allowed, Tenders must be:

a) submitted using the eLodgement button via the Quotations and Tenders Online eLodgement Service as stated on the front cover of the RFT; and

b) in the electronic format as specified (ie .ARF, .DOCX, .JPG, .PDF, .RTF, .TIF, .TXT, .XLSX, .ZIP).

Tenders lodged in an unspecified electronic format will be invalid and declared ineligible for consideration.

Where select tenders have been sought and access to the RFT is provided from an e-mail link, Tenders must be submitted electronically using the same e-mail link.

The Tender may be admitted for consideration on the basis that the transmission of the Tender is acknowledged by the Tenderer as being the true and legal version and is completed, submitted and acknowledged by the stated time and date for closing of Tenders.

In choosing to use the eLodgement option, Tenderers agree to comply with the conditions of use of the Quotations and Tenders Online eLodgement Service.

If, for any reason, the electronic Tender (except pricing schedule[s]) submitted becomes corrupt, illegible, inadequate or incomplete as a result of transmission, storage, etc. a hard copy or a further electronic copy of the Tender must be provided by the Tenderer on request from the Principal. Pricing schedule(s) submitted electronically that become corrupt, illegible, inadequate or incomplete as a result of transmission, storage, etc. will result in the Tender being declared ineligible for consideration.

1.2.6 Late TendersTenders received (in full or part) after the stated time and date for closing of Tenders are ineligible for consideration.

Notwithstanding the preceding paragraph Tenderers may appeal such decisions however:

a) Tenders submitted by prepaid post or a commercial courier service, received after the stated time and date for closing of Tenders may be considered only if it can be established to the satisfaction of the Procurement Review Board that the Tender was posted or despatched before the stated time and date for closing of Tenders and in the ordinary course of business would not have been received late. Impressions of company owned franking machines are not acceptable evidence of timely posting or dispatch.

b) Tenders submitted via the Quotations and Tenders Online eLodgement Service may be considered only if it can be established to the satisfaction of the Procurement Review Board that they were submitted before the stated time and date for closing of Tenders, as evidenced in the acknowledgment of receipt from the NT Government Tender Lodgement host server.

c) The Procurement Review Board may, but is not obliged to, consider Tenders that appear to its satisfaction to have been submitted prior to the stated time and date for closing of Tenders where those Tenders were not received before the stated time and date for closing of Tenders because of a fault or failure of Quotations and Tenders Online eLodgement Service.

d) Times and dates displayed on transmissions from company owned facsimile transmission devices are not acceptable evidence of timely transmission.


1.3 Tenderers to Inform ThemselvesTenderers at their own expense shall inform themselves fully of all circumstances and conditions relating to submitting a Tender, including compliance with all legislation applicable to the scope of requirements, an inspection of the Site, if applicable, and shall satisfy themselves as to the correctness and sufficiency of the RFT documentation.

The NT Government Procurement Framework which includes the NT Procurement Code can be found at the web address:

www.nt.gov.au/dbe/business/tenders-contracts/references

It is also available at the point of issue of the RFT.

1.4 Compliance With NT Procurement CodeIn preparing its Tender, submitting its Tender and throughout the tendering period and process the Tenderer shall comply with the Northern Territory Procurement Code (‘Code’).A copy of the Code is available at the web address specified in the clause entitled “Tenderers To Inform Themselves”.

If the Principal:

a) has evidence that the Tenderer has not complied with the Code; or

b) is of the reasonable opinion that the Tenderer has not complied with the Code;

the Principal may, at its absolute discretion, deem the Tender submitted by the Tenderer to be ineligible for consideration.

1.5 CollusionWithout limiting the obligations of Tenderers under the clause entitled “Compliance with Procurement Code” Tenderers and their officers, employees, agents and advisers shall not engage in any collusive tendering, anti-competitive conduct or any other similar conduct with any other Tenderer or any other person in relation to the preparation or lodgement of Tenders.

In addition to any other remedies available under any law or any contract, the Principal reserves the right, in its sole and absolute discretion, to reject any tender lodged by a Tenderer that engaged in any collusive tendering, anti-competitive conduct or any other similar conduct with any other Tenderer or any other person in relation to the preparation or lodgement of Tenders.

1.6 EnquiriesShould the Tenderer:

a) have any doubts as to the meaning of any part of the RFT; or

b) find any discrepancy or error; or

c) find any omission in the RFT (for example all pages are not numbered consecutively and that all drawings, attachments or supplements referred to are not included, etc.);

the Tenderer shall seek clarification in writing (which may be by means of electronic transmission) from the person specified in the Annexure, as early as possible but in any event before the stated time and date for closing of Tenders.

Where attachments or supplements have been referred to in any section of the RFT these must be read in conjunction with the section to which they refer.


Any clarification given pursuant to this clause may also be issued to all other prospective Tenderers. No explanation or amendment to the RFT shall be recognised unless in the form an Addendum.

Any Tenderer who believes the RFT to be discriminatory, restrictive or biased should inform the Director, Contract and Procurement Services in writing to [email protected] as early as possible, but in any event before the stated time and date for closing of Tenders.

1.7 Other Communications Between Tenderers and the Principle

Unless specified otherwise in writing by the Principal and subject to the provisions of Clause 1.6 and the remaining provisions of this clause, all communications or proposed communications by Tenderers to the Principal that relate to this RFT shall be directed to the person specified in the Annexure.

A Tenderer shall nominate in its Tender a single point of contact for arranging all communications between the Principal and the Tenderer.

Tenderers may contact the Power Water Corporation Regulation group to allow them to inform themselves prior to submitting their Tender. Tenderers are to ensure that any contact with the Power Water Corporation Regulation group is directed only to:

Full Retail Contestability UnitPower Water Corporation Phone: (08) 8985 8431Email: [email protected]

Tenderers must not directly contact any other officers of the NT Public Sector or any Government Minister or their staff in relation to this RFT without the prior agreement of the contact person specified in the Annexure.

If the Principal:

a) has evidence that a Tenderer has not complied with this clause; or

b) is of the reasonable opinion that the Tenderer has not complied with this clause,

the Principal may, at its absolute discretion, deem the Tender submitted by the Tenderer to be inadmissible for consideration.

1.8 Site Inspection

Arrangements for a Site inspection are as stated in the Annexure.

Applicable If Specified In Annexure - AnytimePrior to submitting a Tender it is recommended the Tenderer inspect the Site.

Applicable If Specified In Annexure - By Arrangement - Not MandatoryPrior to submitting a Tender the Tenderer is encouraged to inspect the Site. Inspection of the Site is not mandatory. However permission to visit the Site must be first obtained by contacting the person nominated in the Annexure.

Applicable If Specified In Annexure - Set Time - Not MandatoryPrior to submitting a Tender the Tenderer is encouraged to inspect the Site. Inspection of the Site is not mandatory.


The Site inspection will be held at the location, date and time specified in the Annexure. Any additional information provided at the Site inspection will be distributed to Tenderers by issue of an Addendum.

Any subsequent Site inspections will be solely at the Principal’s discretion and, where subsequent Site inspections are organised, Tenderers will be advised and invited to attend by issue of an Addendum.

Applicable If Specified In Annexure - Set Time - Mandatory Prior to submitting a Tender, the Tenderer must attend a mandatory Site Inspection. The Site Inspection shall be held at the location, date and time specified in the Annexure.

All prospective Tenderers must attend the Site inspection regardless of any previous knowledge or familiarity with the Site. Subsequent or alternative inspections for individual Tenderers will not be permitted. Any additional information provided at the Site Inspection will be distributed to Tenderers by issue of an Addendum.

In addition to attending the Site Inspection the Tenderer is required to have the Schedule of Attendance at the Mandatory Site Inspection (‘Schedule’) (which is included in the Response Schedules) signed by the representative of the Principal that is conducting the Site Inspection. The completed and signed Schedule must be lodged as part of the Tenderer’s Tender. Where the Tender is lodged electronically via the Quotations and Tenders Online eLodgement Service, the Schedule shall include the signature of Principal’s representative conducting the Site Inspection (i.e. be a scanned document lodged in .PDF format or similar).

A Tenderer may authorise a third party to attend the mandatory Site Inspection as its authorised representative, however, it remains the responsibility of the Tenderer to have the Schedule of Attendance at the Mandatory Site Inspection completed and attendance on its behalf noted in the Principal’s record of attendees at the Site Inspection.

Failure to attend the mandatory Site Inspection and/or lodge the signed Schedule where expressed as mandatory will result in the Tenderer’s Tender being declared ineligible for consideration.

The Procurement Review Board shall be the sole arbiter of any Tender declared ineligible for consideration under the provisions of this clause.

1.9 Industry briefing

Arrangements for an Industry Briefing are as stated in the Annexure.

Applicable If Specified In Annexure - Not MandatoryPrior to submitting a Tender the Tenderer is encouraged to attend the Industry Briefing. Attendance at the Industry Briefing is not mandatory.

The Industry Briefing will be held at the location, date and time specified in the Annexure. Any additional information provided at the Industry Briefing will be distributed to Tenderers by issue of an Addendum.

Any subsequent Industry Briefings will be solely at the Principal’s discretion and, where subsequent Industry Briefings are arranged, Tenderers will be advised and invited to attend by issue of an Addendum.

Applicable If Specified In Annexure - MandatoryPrior to submitting a Tender the Tenderer must attend the mandatory Industry Briefing. The Industry Briefing shall be held at the location, date and time specified in the Annexure.

All prospective Tenderers must attend the Industry Briefing regardless of any previous knowledge or familiarity with the scope of requirement. Subsequent or alternative


briefings for individual Tenderers will not be permitted. Any additional information provided at the Briefing will be distributed to Tenderers by issue of an Addendum.

In addition to attending the Industry Briefing the Tenderer is required to have the Schedule of Attendance at the mandatory Industry Briefing (‘Attendance Record’) (which is included in the Response Schedules) signed by the Principal’s representative conducting the Industry Briefing. The completed and signed Attendance Record must be lodged as part of the Tenderer’s Tender. Where the Tender is lodged electronically via the Quotations and Tenders Online eLodgement Service, the Attendance Record shall include the signature of Principal’s Officer conducting the Industry Briefing (i.e. be a scanned document lodged in .PDF format or similar).

A Tenderer may authorise a third party to attend the mandatory Industry Briefing as its authorised representative, however, it remains the responsibility of the Tenderer to have the Schedule of Attendance at the Mandatory Industry Briefing completed and attendance on its behalf noted in the Principal’s record of attendees at the Industry Briefing.

Failure to attend the mandatory Industry Briefing and/or lodge the signed Attendance Record where expressed as mandatory will result in a Tenderer’s Tender being declared ineligible for consideration.

The Procurement Review Board shall be the sole arbiter of any Tender declared ineligible for consideration under the provisions of this clause.

1.10 Site RulesTenderers are advised that there may be restrictions with respect to the Site. Tenderers shall become familiar with the rules and regulations in force at the Site as issued by the relevant authority.

Where Site Rules apply the Tenderer if awarded the Contract will be required to comply with the Site Rules and to ensure that their employees and sub-contractors undertaking work within the Site are made aware of the Site Rules, their application and that they comply with the Site Rules.

1.11 Signing of DocumentsThe Tenderer shall sign its Tender as indicated below:

a) In the case of a corporation:

(i) With its common seal, in the manner prescribed by its Constitution; or

(ii) Without its common seal, if signed by:

A. two directors of the company; or

B. a director and a company secretary of the company; or

C. for a proprietary company that has a sole director who is also the sole company secretary – that director; or

(iii) By signature of two persons (other than the persons described in clause [ii]) authorised by the corporation to bind it in contract. In such circumstances a copy of the authorisation duly executed by the corporation in accordance with clause (i) or (ii) must be submitted with the Tender.


b) In the case of a firm (including a firm trading under a business or trading name and a partnership):

(i) By signature of each proprietor of the firm; or

(ii) where the firm has more than five proprietors, by signature of the proprietors authorised to bind the firm in contract. In the case of the later evidence of the authority of those proprietors to bind the firm may be required by the Principal.

Any proprietor who is a corporation must sign the Tender in the manner indicated in paragraph (a) above.

Where the Tenderer is lodging its Tender via the Quotations and Tenders Online eLodgement Service, there is no requirement to complete the "signature" block on the Declaration by Tenderer form.

Where the Tender is from a:

a) person or persons, full given names are to be provided; or

b) firm or business or trading name, full given names of each member of the firm are to be provided; or

c) company, the full name and registered address are to be provided.

Each Tender shall contain the Tenderer's unique business identifier required by law (e.g. ACN/ABN/ARBN) and an address for service of any notices necessary or required to be or which may be served on or given to the Tenderer in connection with its Tender and any subsequent contract arising out of acceptance of the Tender.

1.12 Tender ValidityTenders shall remain valid for the period stated in the Annexure. A Tenderer may withdraw its Tender at any time after the expiration of the Tender validity period, but shall not withdraw its Tender prior to the expiration of such period unless such withdrawal is accepted by or on behalf of the Principal.

1.13 Alternative TendersTenderers may submit alternative Tenders only where the Annexure states that alternative Tenders are allowed.

Where the Annexure specifies that an alternative Tender must be accompanied by a conforming Tender, a conforming tender must be submitted with the alternative Tender.

Alternative Tenders must be clearly identified as an “Alternative Tender”.

Tenderers are encouraged to offer options or solutions, which may (for example in a novel or innovative way), contribute to Principal’s ability to carry out its business in a more cost-effective manner. These may be related to the outputs; or functional, performance and technical aspects of the requirement.

Where a Tenderer submits an alternative Tender the alternative Tender shall meet the Scope of requirement in an alternative and practical manner and shall include any supplementary material, together with associated prices, which demonstrates in detail that such an alternative will fully achieve and/or exceed all the specified requirements, together with references as to why the additional features may be advantageous.

1.14 Pricing – Taxes, Duties, Fees etc. Where itemisation of the price is required it will be stated in the Annexure. Where itemisation is a requirement failure to comply with this requirement will result in a Tenderer’s Tender being declared ineligible for consideration.


Applicable If Specified In Pricing Response Schedule – Inclusive Of All TaxesTender prices submitted shall, in accordance with the format set out in the Response Schedules, be inclusive of all taxes, fees, duties, royalties, premiums, costs, charges (including, without limitation, large-scale generation certificates and small-scale technology certificates, regulatory charges, network charges and carbon tax) which will be due and payable to any person or authority under any resultant Contract.

Applicable If Specified In Pricing Response Schedule – Itemisation Of Pricing Tender prices submitted shall, in accordance with the format set out in the Response Schedules, itemise the pricing of electricity as follows:

a) electricity price excluding all taxes, fees, duties, royalties, premiums, costs, charges (including, without limitation, large-scale generation certificates and small-scale technology certificates, regulatory charges, network charges and carbon tax);

b) regulatory charges;

c) network charges;

d) large-scale generation certificates and small-scale technology certificates;

e) carbon tax costs; and

f) any other taxes, duties or charges which will be due and payable to any person or authority under any resultant Contract.

Failure to comply with the requirement to itemise tender prices will result in a Tenderer’s Tender being declared ineligible for consideration.

1.15 Pricing – General RequirementsAll prices shall be stated in Australian dollars.

Any Schedule of Rates, or prices ’Schedule‘ which is included in the Response Schedules shall be completed and lodged with the Tender. Unless otherwise required pricing shall be submitted for each item in the Schedule.

Any Tender in which the Schedule is not fully completed as required may result in the Tender being declared ineligible for consideration.

Unless otherwise stated, any quantities given in the RFT are not guarantees as to the quantity of the requirement to be ordered under any resultant contract, but shall be used for Tender assessment purposes only. The Principal will only be liable for the acceptance of quantities ordered under any resultant contract.

1.16 Treatment of Low or Aberrant PricesWhere a tender price (or a key element of a tender price) is considered well below the median price and/or the estimated value of the requirement, the Tenderer, as a part of the assessment process, may be requested to confirm the tendered price and /or respond to questions regarding particular aspects of the Tender. The Tenderer may also be asked to provide written confirmation that the scope of requirement and contractual obligations are fully understood. Where the price submitted is confirmed the Principal will, at its discretion, either:

a) proceed with the evaluation of the tender; or

b) where there is evidence that acceptance of the Tender may pose a substantial risk to the Principal or the sustainability of the Tenderer, give consideration to passing over that tender.


1.17 Competitive NeutralityGovernment owned businesses responding to public tenders are required to operate commercially and in accordance with competitive neutrality principals. This is a requirement of the Government Owned Corporation Act and the NT Government Procurement Framework. Tender prices submitted by Government owned businesses are to include relevant taxes, charges, return on capital, payroll tax, stamp duty, government charges regulatory charges, contain competitively neutral prices and be prepared in accordance with the “Northern Territory Government Competitive Tendering Guidelines”. A copy of the Guidelines is available from the place of issue of the RFT documents or from the following web address:

http://www.nt.gov.au/dbe/business/tenders-contracts/references/tendering-contract/Pages/competitive-neutrality.aspx

Government owned businesses may submit a single competitively neutral pricing schedule where that pricing schedule is their competitively neutral price, prepared in all other respects in accordance with the “Northern Territory Government Competitive Tendering Guidelines”.

1.18 Local DevelopmentThe Northern Territory Government is committed to supporting businesses that use local contractors and suppliers and train and hire Territorians. The tender assessment will take into consideration businesses that demonstrate a commitment to employing Territorians including indigenous Territorians, accredited training of its employees and sourcing goods and services from local businesses.

Tenderers must include in the Response Schedules provided and submit with their Tender, details of sub-contractors to be used (where applicable), indigenous employees and all employees undertaking accredited training.

Employees listed as undertaking accredited training through an apprenticeship or trainee pathway will only be recognised as being compliant for Tender purposes if:

a) a signed contract of training for the apprentice or trainee is currently with the Australian Apprenticeships NT Office; or

b) the apprentice or trainee details appear on the Data Entry Level Training Agreement (DELTA) database, maintained by the Department of Business; or

c) the training being undertaken is a recognised accredited training course.

Further information on NT Government Policy on the use of apprentices or trainees on Government Contracts and accredited training programs can be obtained from the Training Operations Unit in the Department of Business:

By phone:

(08) 8935 7732

By mail:

Training Operations UnitDepartment of BusinessGPO Box 2391DARWIN NT 0801

By email:

[email protected]


Further information regarding the employment of apprentices or trainees can be obtained from Australian Apprenticeships NT.

In person:

6 Searcy StreetDARWIN NT 0800Or

19 Hartley StALICE SPRINGS NT 0870Phone: (08) 8953 3311

By phone:

(08) 8935 8200

By mail:

Australian Apprenticeships NTGPO Box 3049DARWIN NT 0801

By email:

[email protected]

1.19 Industry Participation PlanWhere stated in the Annexure that an Industry Participation Plan is required, Tenderers must submit an Industry Participation Plan Proposal.

Information on Building Northern Territory Industry Participation and an information guide about Industry Participation Plans are included with the RFT.

Further information and assistance in relation to Industry Participation Plans is available from the Business and Industry Development Unit in the Department of Business.

By phone:

(08) 8999 5201

By mail:

Business and Industry DevelopmentDepartment of BusinessGPO Box 3200DARWIN NT 0801

By email:

[email protected]

Failure to submit an Industry Participation Plan Proposal with the Tender where required will result in the Tender being declared ineligible for consideration.

1.20 Part OfferUnless otherwise stated in the Annexure, Tenderers shall offer for the whole of the requirement.

Where part offers are allowed, the Principal reserves the right to accept a portion or the whole of any Tender at the price or prices tendered unless the Tenderer specifically states to the contrary in its offer.


1.21 Change to the Conditions of Contract

1.21.1 Conditions of TenderingTenderers are not permitted to request changes or propose alternatives to the Conditions of Tendering applicable to the RFT. Any Tenderer who attempts to do so will have their Tender declared ineligible for consideration.

1.21.2 Conditions of ContractTenderers may request changes to the Conditions of Contract applicable to the RFT, or propose alternative Conditions of Contract only if stated in the Annexure that this is allowed.

Where Tenderers request changes to the Conditions of Contract or propose alternative conditions, they must clearly specify in the appropriate section of the Response Schedules the changes to the Conditions that are being requested or the alternative Conditions that are being proposed.

Where Tenderers request changes to the Conditions of Contract or propose alternative Conditions of Contract, they do so at their own risk, as the changes will be deemed to have formed part of their offer and their Tender will be assessed on that basis. If the requested changes or the alternative Conditions included in a Tender are not acceptable to the Principal, the Tender will not be successful.

If the RFT states that the changes to the Conditions of Contract or alternative Conditions are not allowed, then Tenderers may not request changes to the Condition of Contract applicable to the RFT, or propose alternative Conditions of Contract. If a Tenderer does so, its Tender will be declared ineligible for consideration.

Nothing in this clause affects the Principal’s right to negotiate with one or more Tenderers as provided for in the RFT.

1.2 Disclosure of Percentage WeightingsTender assessment criteria and percentage weightings applicable to the RFT are detailed in the Annexure.

Although Tender assessment criterion may include sub-criteria, percentage weightings shall only be published as a cumulative percentage against the tender assessment criterion. If sub-criteria are used and the sub-criteria are to be given percentage weightings, the weightings applying to the sub-criteria shall not be disclosed or published.

The Principal reserves the right to apply percentage weightings to each criterion in its total discretion, having regard to the required outcomes of the Tender.

1.3 Tender Assessment CriteriaTender responses will be scored against the assessment criteria. Selection of the successful Tenderer will be based on a best value for money assessment of Tenders against the Tender Assessment Criteria as requested in the specific Response Schedules.

The elements under each criterion are offered for the purpose of providing Tenderers examples of the types of consideration that may form part of each criterion. These elements as stated under each criterion are not to be considered exclusive to any specific Tender.

a) Past Performance:(i) Performance history including experience in providing similar requirements.(ii) References.


b) Capacity:(i) Ability to supply specified electricity quantities during the Contract Term

including transmission and distribution arrangements in place.(ii) Business management and technical risk management or contingency plans

that may be implemented by the Tenderer.(iii) Experience of the key personnel nominated to perform the work.(iv) Risk.

c) Local Development and Value Adding:(i) Proposed level of local representation, employment or local development

opportunities, including the number of employees retained in the Northern Territory and details (where relevant) on the number of indigenous employees, apprentices and trainees.

(ii) Level of support of commerce and industry in the Northern Territory.(iii) Level of accredited training programs or other training, skills and knowledge

sharing initiatives that the Tenderer currently undertakes which build the capacity of the NT labour force.

(iv) Building Northern Territory Industry Participation Plans (where applicable).d) Scope Specific Criteria:

(i) Scope Specific Criteria are those criteria that are considered relevant to the nature of the Services being sought. Scope Specific Criteria could include, but are not limited to, any one or more of the following: D. technical requirements;E. specific experience and expertise; andF. financial risk information

e) Price:(i) Upfront costs;(ii) Through-life costs (iii) Any other factors that would impact on costs to the Government.

Tenderers should provide all relevant factors addressing the selection criteria specified in the Response Schedules, which may assist the Principal in making an assessment of the Tender.The Principal reserves the right to apply weightings to each criterion in its total discretion, having regard to requirements contained in the NT Government Procurement Framework.

1.4 Clarification of InformationThe Tenderer may be called upon to clarify information contained in their Tender or to supply information additional to that provided in their Tender to demonstrate to the satisfaction of the Principal that the Tenderer has the capacity to perform its obligations under any resultant contract.

The Tenderer shall within the time specified comply with any such requests. Should the Tenderer fail to submit any or all of the information required in the time stipulated, their Tender may be declared ineligible for consideration.

1.5 Negotiationa) The Principal may engage in detailed discussions and negotiations with one or

more Tenderers.

b) Without limiting sub-clause 1.22(a) the selection of Tenderers under this clause does not bind the Principal to a contractual relationship and is not a representation that a contract will be entered into between the Principal and the Tenderer.


c) The selection of a preferred Tenderer is subject to successfully concluding negotiations. The result of any negotiations will be incorporated into the final Contract.

d) If the parties fail to complete satisfactory negotiations, the Principal may, at its sole discretion, terminate negotiations with that Tenderer and commence negotiation with another Tenderer or to terminate this Tender process or to exercise any other right reserved to the Principal under law or elsewhere in this RFT.

1.6 Sole Discretion of PrincipalThe Principal reserves to itself the right to add to, vary or amend the information, terms, procedures and protocols set out in this Request for Tender, in its sole discretion by the issue if Addendums or otherwise. Tenderers will have no claim against the Principal or its officers, employees or advisers with respect to the exercise of, or failure to exercise, such right.

1.7 DisclosureThe Principal reserves the right and the Tenderer by submitting a Tender agrees that the Principal may make available to Ministers, other Government representatives (but not representatives of Government owned Tenderers or competitors of any Tenderer), any advisers and others engaged to assist the Principal in the tender process a copy of any tender or part of a tender for the purposes of evaluation, clarification, advice, negotiation and/or contract execution and anything else related to these purposes, including Governmental and Parliamentary reporting requirements.

1.8 Performance ReportThe Tenderer will, if awarded a contract, agree to the preparation and use of a performance report in the manner set out in the Conditions of Contract.

1.9 Privacy NoticeThe Principal is collecting the information on the Declaration of Business Status form in the Response Schedules to determine eligibility to contract with the Principal. This is required by Procurement Regulation 6(7)(h) of the Procurement Regulations. The Principal may give some or all of this information to the Procurement Review Board. Failure to provide the information in full or in part may result in the Tender being declared ineligible for consideration.

Personal information provided in this form can be accessed by the Tenderer on request. Any queries should be directed to the contact person stated in the Annexure as the contact point.

1.10 Availability of TenderersEach Tenderer will ensure that a representative of the Tenderer, who is familiar with the Tenderer’s Tender, is made available during the assessment phase and, if applicable, negotiation phase of the tender process.

1.11 Tender AwardThe Principal shall not be bound to accept the lowest priced or any Tender.

The contract will be awarded to the successful Tender by either:

a) the issue of a notice of acceptance to the Tenderer (which may, at the Principal’s discretion be issued by post, facsimile or email to the address nominated in the Tender form); or


b) the execution of a formal instrument of agreement by the Principal and the successful Tenderer.

If:

c) a notice of acceptance has not been issued; or

d) a formal instrument of agreement has not been executed,

there shall be no contract between the Principal and the Tenderer and the Tenderer shall not act on any representations or statements made by the Principal or its employees or agents prior to the issue of a notice of acceptance or the execution of a formal agreement by the Principal and the Tenderer.

1.12 Debriefing of TenderersTenderers may request a debriefing as to the specific reasons why their Tender was unsuccessful. This is for the purpose of assisting the Tenderer to improve their competitiveness for future Tenders.

Information will be confined to discussion of the Tenderer’s Tender and under no circumstances will information relating to another Tender be disclosed.


2 Conditions of Contract

2.1 DefinitionsIn these conditions of contract, unless the context otherwise requires:

Annexure means document titled “Annexure to Conditions of Tendering and Contract” set out in section 3 of the Request for Tender which details the specific requirements applicable to the Conditions of Tendering and Contract;

Applicable Law means any present or future legislation, rules, regulations, codes, licence conditions or other regulatory instruments which are binding on, or are expressed to apply to the Contractor or (as the case may be) a Network Provider from time to time and relate to the supply of electricity in the Northern Territory including the Electricity Reform Act, the Utilities Commission Act, the Electricity Networks (Third Party) Code and the Electricity Networks (Third Party Access) Act.

Business Day means any day which is not a Saturday, Sunday or public holiday, within the meaning of the Public Holidays Act in Darwin in the Northern Territory;

Carbon Tax Cost means the cost of any carbon tax in $/kWh to be passed on to the Principal for electricity supplied to the Principal’s Premises as a result of clean energy or carbon tax legislation (including the Clean Energy Act and its associated legislation), based on the rates in the Clean Energy Act and its associated legislation.

Contract means the contract between the Principal and the Contractor for the supply of electricity to the Supply Point comprised of the:

a) the Notice of Acceptance;

b) any formal instrument of agreement;

c) any special conditions contained in the Request for Tender;

d) the Contractor’s Tender;

e) the Request for Tender; and

f) these conditions of contract,

interpreted in the order of priority set out in clause 2.2(o).

Contract Month means each successive calendar month occurring during the Term with:

a) the first Contract Month commencing on the Date of First Supply and ending on the last day of the calendar month in which the Date of First Supply occurs; and

b) the last Contract Month being the last month of the Term or the month in which termination of the Contract occurs, whichever occurs earlier.

Contract Year means each successive period of twelve (12) Contract Months occurring during the Term;

Contractor means the entity engaged by the Principal to supply electricity to the Supply Point, whose details and address appear on the Notice of Acceptance;

Contractor’s Tender means the tender for the supply of electricity to the Supply Point submitted by the Contractor in response to the Request for Tender;

Date of First Supply means the date specified in the Annexure;

Electricity Entity has the same meaning as is defined in the Electricity Reform Act;

Estimated Load means the estimated amount of electricity to be used by the Principal from the Supply Point in each Contract Year, as specified in the Request for Tender;

Further Term has the meaning given in clause 2.6(a);

Conditions of Contract

Good Electricity Industry Practice means the exercise of that degree of skill, diligence, prudence and foresight that reasonably would be expected from a significant proportion of operators of facilities forming part of a power system for the generation, transmission, distribution and supply of electricity comparable to those applicable to the relevant facility consistent with applicable laws, the Network Access Code (as that term is defined in the Electricity Reform Act), licences, industry codes, reliability, safety and environmental protection;

GST has the meaning given in clause 2.21;

Infrastructure means:

a) electricity generating plant;

b) power lines, cables and wires;

c) substations for converting, transforming or controlling electricity;

d) equipment for metering, data acquisition, monitoring or controlling electricity including any Installation; and

e) any equipment or other things (including tunnels and cavities) used for, or in connection with, the generation, transmission, distribution or supply of electricity;

Insolvency Event means in respect of a Party:

a) an application is made to a court for the Party to be wound up or for the appointment of a provisional liquidator;

b) a meeting is convened to place the Party in voluntary liquidation or to appoint an official manager or an administrator or a controller of any of the Party’s assets;

c) the appointment of a liquidator, provisional liquidator, official manager or administrator, receiver or receiver and manager of any of the Party’s assets, or the appointment of a controller of any of the Party’s assets;

d) a petition or application is presented (and not withdrawn within ten (10) Business Days) or an order is made or a resolution is passed for the winding up or dissolution without winding up of the Party otherwise than for the purpose of reconstruction or amalgamation under a scheme to which the other Party has given consent;

e) a Party proposes to enter into or enters into any form of arrangement (formal or informal) with its creditors or any of them;

f) the Party is, or is to be regarded as being (under the Corporations Act) unable to pay its debts; or

g) the Party becomes an insolvent under administration as defined in the Corporations Act.

Installation means electrical conductors, fittings, equipment and accessories installed in a place for conveying, controlling, measuring or using electricity in the Principal's Premises;

Intervening Event has the meaning given to that term in clause 2.30;

kWh means kilowatt hours and describes the total energy content of the electricity used in a set period.

Limit On Load Growth means the agreed maximum annual electricity amounts (kWh per annum) that the Contractor is obligated to supply to the Principal under the Contract specified in the Request for Tender or otherwise agreed between the Parties in writing;

Network Provider has the meaning it is given in the Electricity Reform Act;

Notice of Acceptance means the notice issued to the Contractor by the Principal accepting the Contractor’s Tender and creating the Contract;

Party means a party to the Contract;

Principal's Premises means the premises to which electricity is supplied under the Contract as specified in the Annexure;



Principal means the Northern Territory of Australia;

Rates means the prices, per kWh, for electricity supply set out in the Contractor’s Tender, as adjusted in accordance with the Contract;

Relevant Tax:

a) means a Carbon Tax Cost, energy tax or any other tax or cost applicable to the electricity industry;

b) but excludes any interest, penalty, levy or other charges imposed except due to the failure of the Contractor to act, make payment by the due date or otherwise fail to meet the requirements of the relevant authority, or set by the relevant legislative scheme.

Renewable Energy Legislation describes the various legislation established by the Commonwealth of Australia to enforce renewable energy targets (as defined by that legislation) including the Renewable Energy (Electricity) Act, Renewable Energy (Electricity) (Large-Scale Generation Shortfall Charge) Act, Renewable Energy (Electricity) (Small-Scale Technology Shortfall Charge) Act, and any delegated legislation made under these Acts.

Request for Tender means the request for tender document issued by the Principal requesting tenders for the supply of electricity to the Supply Point including the scope of requirements, all annexures, schedules, attachments and all addenda made in writing prior to the closing date and time stated on the front cover of the Request for Tender.

Supply Point means the point or points specified in the Annexure;

Suspension or Disconnection Communication Protocol means any written suspension or disconnection protocol provided to the Contractor by the Principal during the Term;

Take or Pay Amount describes an agreed minimum annual electricity amount (kWh per annum) which the Principal has to pay for regardless of whether or not the Principal’s Premises have used that amount of electricity;

Term means the period of the Contract stated in the Annexure;

Utilities Commission means the Utilities Commission established by the Utilities Commission Act.

2.2 InterpretationIn the Contract (including all documents that comprise the Contract), unless the context otherwise requires:

a) the table of contents and headings are for convenience only and do not affect interpretation;

b) words denoting the singular include the plural and vice versa;

c) a reference to an individual includes associations, partnerships, corporations, joint ventures, unincorporated associations or trusts, states or any statutory authority or government department, in each case whether or not having separate legal authority;

d) an act required to be done by a Party on a day that is not a Business Day is required to be done the following Business Day;

e) a reference to any instrument (such as a deed, agreement or document) is to that instrument (or, if required by the context, to a part of it) as amended, novated, substituted or supplemented at any time and from time to time;

f) a reference to a person includes that person's executors, administrators, successors and permitted assigns;

g) a reference to "$" or "dollars" is a reference to an amount in Australian currency;

h) terminology used to describe units is, unless otherwise stated, in accordance with Australian Standard AS ISO 1000-1998 "The international system of units (SI) and its application" and the National Measurement Act (Cth) 1960 and its regulations;



i) a reference to a recital, clause, schedule, appendix or exhibit is to a recital, clause (including sub-clause, paragraph, sub-paragraph or further subdivision of a clause), schedule, appendix or exhibit of or to the Contract;

j) a recital, schedule, appendix, exhibit or a description of the Parties referred to in the Contract forms part of the Contract;

k) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or substitution for, and any subordinate legislation under, that legislation or legislative provision;

l) a reference to time is a reference to Australian Central Standard Time;

m) where an expression is defined, another part or speech or grammatical form of that expression has the corresponding meaning;

n) "including" and similar expressions are not, and must not be treated as, words of limitation; and

o) if any inconsistency arises between one or more of the documents that comprise the Contract, the documents that comprise the Contract will be interpreted in the following order of precedence:

(i) Notice of Acceptance

(ii) any special conditions contained in the Request for Tender;

(iii) these conditions of contract;

(iv) Contractor’s Tender;

(v) Request for Tender.

2.3 Governing Lawa) The Contract is governed by and is to be construed in accordance with the law in force

in the Northern Territory.

b) The Parties submit to the non-exclusive jurisdiction of the courts of the Northern Territory and any courts which may hear appeals from those courts in respect of any proceedings in connection with the Contract.

2.4 Entire AgreementThe Contract constitutes the entire agreement between the Parties in relation to the supply of electricity to the Supply Point and supersedes any prior negotiations, representations, proposals, understandings and agreements concerning the supply of electricity to the Supply Point.

2.5 Term of ContractThe Contract commences on the Date of First Supply and, subject to extension pursuant to clause Error: Reference source not found (Option for Extension of Contract) and early termination in accordance with these conditions of contract, operates for the Term.

2.6 Option for Extension of Contract(a) Subject to early termination in accordance with these conditions of contract the Principal

may, at its discretion, extend the Term for the period specified in the Annexure (‘Further Term’) by written notice to the Contractor given at least three (3) months prior to the expiry of the Term.

(b) An extension for the Further Term will not be granted by the Principal until the Principal gives the Contractor the opportunity to submit revised Rates and notifies the Contractor in writing that the Contract is extended for the Further Term.



(c) Where the Principal extends the Term pursuant to clause 2.6(a), the Contract will:

(i) be extended for the Further Term with the Further Term commencing on the day immediately after the expiry of the Term; and

(ii) such extension will be on the same terms and conditions as set out in the Contract except that:

A. the ‘Date of First Supply’ will be the day on which the Further Term commences;

B. the Rates will be replaced by the revised rates submitted by the Contractor pursuant to clauses 1.1(a) and 2.20; and

C. any references in these conditions of contract to the “Term” are to be read as references to the “Further Term”.

2.7 Sale and Purchase of ElectricityThe Contractor will supply, or procure the supply of, and sell electricity to the Principal at the Supply Point for the Term and the Principal agrees to take and purchase the electricity supplied on the terms set out in the Contract.

2.8 Obligations of the Principal2.8.1 Payment ObligationThe Principal will pay for electricity supplied by, or on behalf of, the Contractor at the Supply Point and taken by the Principal.

2.8.2 Principal’s Representativea) The Principal will, by written notice to the Contractor within ten (10) Business Days of the

Date of First Supply, appoint a person to act as the Principal’s representative under the Contract (“Principal’s Representative”).

b) The Principal hereby authorises the Principal’s Representative to exercise all of its rights and powers under the Contract.

c) The Principal may revoke the appointment of the Principal’s Representative and appoint a new Principal’s Representative by written notice to the Contractor.

2.8.3 Compliance with LawsThe Principal will comply with all laws and co-operate with the Contractor to allow it to comply with all laws.

2.8.4 Access to be PermittedThe Principal will permit the Contractor or a person authorised by the Contractor (provided that person can produce a written authorisation if demanded by the Principal) on to the Principal's Premises to:

a) read the meter;

b) inspect and ensure Installations are safe;

c) investigate, examine and test any Installation;

d) search, take photos, make records or retrieve objects for the purpose of evidence; and

e) conduct any other activity required or permitted by Applicable Law.



2.9 Obligations of the Contractor

2.9.1 Supply ObligationsThe Contractor will:

a) ensure a seamless and transparent transition of electricity supply to the Supply Point in a manner that causes minimal inconvenience to the Principal;

b) subject to clause 2.28(a) ensure a constant, safe, reliable and secure supply of electricity to the Supply Point sufficient to meet the demand of the Principal during the Term; and

c) enter into formal arrangements, take all necessary steps and actions and execute all documents necessary to ensure the supply of electricity in accordance with clause 2.9.1(a) and (b).

2.9.2 Account Managera) The Contractor will, by notice in writing to the Principal and within ten (10) Business

Days of the Date of First Supply, appoint a suitably skilled, qualified and authorised person to act as an account manager in respect to the supply of electricity under the Contract (the ‘Account Manager’).

b) The Contractor will ensure that the Account Manager is available to manage all routine account issues relating to the Contract and that the Account Manager attends account management meetings with the Principal at least twice in each Contract Year.

c) The Contractor may revoke the appointment of the Account Manager and appoint a new Account Manager by written notice to the Principal, provided the written notice includes curriculum vitae of the newly appointed Account Manager.

2.9.3 Performance ObligationsThe Contractor will at all times during the Term act in accordance with Good Electricity Industry Practice.

2.9.4 Regulatory Obligations(a) The Contractor will enter into an Access Agreement (as that term is defined in the

Electricity Reform Act) with a Network Provider to ensure a constant, safe, reliable and secure supply of electricity to the Principal is maintained.

(b) The Contractor will comply with all laws, including the terms of any licences the Contractor holds to supply electricity pursuant to the Contract.

2.9.5 Equipment and InstallationsThe Contractor will enter into a contract with a Network Provider regarding the installation and maintenance of all Infrastructure up to and including the Supply Point as necessary for the supply of electricity in conformity with the Contract.

2.9.6 Provision of Informationa) Within fourteen (14) days of the end of each Contract Month, the Contractor will provide

the Principal with the following information:

(i) meter reading data which details the Principal’s electricity consumption and usage at the Supply Point during the previous Contract Month;

(ii) an itemised schedule of Power and Water Corporation Network Division charges applicable to the supply of electricity to the Supply Point and any other regulated charges;

(iii) energy use and cost data by tariff band; and

(iv) the apparent demand quantities of the Principal’s Premises.Supply of Electricity Version 4.1.01 – Page 27


b) The Contractor will:

(v) within fourteen (14) days of the end of each six (6) month period during the Term; and

(vi) within fourteen (14) days of the expiry of the Term,

provide the Principal with fifteen minute meter data for the Principal’s Premises in respect of the previous six (6) month period.

c) Upon a request made by the Principal the Contractor will, in addition to its other obligations under this clause 2.9.6, provide to the Principal written information regarding:

(i) the voltage regulation of the electricity supplied to the Principal;

(ii) the frequency regulation of the electricity supplied to the Principal;

(iii) the harmonic content of the electricity supplied to the Principal;

(iv) the number and types of interruptions and outages and to the supply of electricity to the Supply Point; and

(v) ad hoc load profile data in respect of the Supply Point,

and such information will be provided within the following timeframes:

(vi) for the information referred to in clauses (i) to (iv), within a reasonable time of the request by the Principal; and

(vii) for the information referred to in clause (v), within ten (10) Business Days of receipt of the Principal’s request.

d) Upon a request made by the Principal the Contractor will provide the Northern Territory Government agency responsible for whole-of-government energy management and reporting with compiled consumption and cost data for the electricity sold under the Contract in a written format to be agreed by the Principal and the Contractor.

e) Subject to clause 2.9.6(f), the Contractor will comply with its obligations under this clause 2.9.6 at its own cost.

f) If the Contractor is reasonably required to engage an external person or entity to (including a Network Provider) in order to comply with its obligations under this clause 2.9.6 the fees to be charged by the external person or entity will be agreed with the Principal in writing prior to the Contractor incurring the fees.

2.9.7 InsuranceThe Contractor will:

a) effect and maintain for the Term product liability insurance with a reputable insurer in respect to all liabilities arising out of this contract, for an amount of not less than the amount stated in the Annexure;

b) continue to maintain the product liability insurance policy after the expiry of the Term for such period and for such amount as is necessary to indemnify the Contractor in respect of all liabilities arising out of this Contract;

c) effect and maintain for the Term workers compensation insurance cover in accordance with the Workers Rehabilitation and Compensation Act (NT);

d) ensure that its workers compensation insurance cover is purchased from an insurer approved by NT Worksafe. Details can be found at the following web address:

http://www.worksafe.nt.gov.au/ServiceProviders/Insurers/Pages/Find-an-Approved-Insurance-Company.aspx

e) ensure that all sub-contractors who employ workers have workers compensation insurance cover in accordance with the Workers Rehabilitation and Compensation Act 2009;



f) ensure that all persons employed under labour hire agreements, whether by the contractor or through a labour hire firm, are appropriately covered by workers compensation insurance;

g) ensure that self-employed Contractors should ensure that they have adequate insurance coverage in place

h) upon request, provide to the Principal copies of all certificates of currency of any sub-contractors (including self-employed contractors and persons employed under labour hire agreements);

i) effect and maintain for the Term public liability insurance for an amount not less than the amount stated in the Annexure, for each and every occurrence, with a reputable insurer;

j) ensure that all sub-contractors take out public liability insurance that meets the requirements of this clause 2.9.7;

k) ensure that all insurance policies and cover required by this clause 2.9.7 note the Principal for its respective rights and interests; and

l) upon request, provide the Principal with copies of all insurance policies and certificates of currency applicable to insurance policies required by this clause 2.9.7.

The effecting of insurance shall not limit the liabilities or obligations of the Contractor under other provisions of the Contract.2.9.8 Agreements with Network ProviderThe Contractor will:

a) within five (5) Business Days of the Notice of Acceptance, provide to the Principal a copy of any agreements required to be entered into between the Principal and the Contractor or between the Principal and the Network Provider (including any connection agreement) in order to ensure the supply of electricity to the Supply Point; and

b) ensure to the extent possible that all agreements between the Contractor and a Network Provider are consistent with the Contractor’s obligations under the Contract.

2.10 Site Rulesa) The Contractor, its employees and sub-contractors required to enter the Principal’s

Premises in connection with the Contract will comply with all rules and regulations in force at the Principal’s Premises, including security screening through criminal history checks where required.

b) The Contractor is responsible for obtaining all relevant permits and the payment of all associated fees and/or charges which are levied by the appropriate authority.

2.11 Status of ContractorThe Contractor, its agents, employees and Contractors, performing the Contractor’s obligations under the Contract, are not for any purpose a servant, agent or employee of the Principal and will not hold themselves out to be a servant, agent or employee of the Principal.

2.12 Metering and Data Acquisitiona) Subject to this clause 2.12, the quantity, flow and characteristics of electricity supplied to

the Principal under the Contract will be determined by the Contractor from readings of metering equipment and data acquisition equipment at the Principal’s Premises, in accordance with Good Electricity Industry Practice and any Applicable Laws.

b) The Contractor will, at its cost, ensure that the following equipment is available and suitable for use for the purposes of the Contract:

(i) metering equipment (certified as having been tested and calibrated, as required by the relevant legislation and Good Electricity Industry Practice); and



(ii) data acquisition equipment;

and that such equipment will:

(iii) accurately measure electricity usage; and

(iv) record, store and provide data related to the flow and characteristics of electricity and to provide such reports as may be reasonably required by the Principal.

c) Where:

(v) access to the meter is denied for any reason; or

(vi) the metering equipment makes incorrect readings for any reason,

the quantity of electricity supplied (and the times of supply) will be agreed between the Parties having regard to prior billing history and by meter readings which are subsequently obtained or by any other method determined in accordance with Good Electricity Industry Practice and any Applicable Laws. Notwithstanding that a prior meter correction has been made, if further information becomes available which more accurately quantifies the electricity supplied, either Party may notify the other Party of the additional information and obtain an appropriate adjustment.

2.13 Change to Installation and Meter Numbersa) The Contractor acknowledges and agrees that the metering and Installation numbers for

the Principal’s Premises may change during the Term and where this occurs the Contractor will:

(i) provide written notice to the Principal within ten (10) Business Days of the meter or installation numbers changing; and

(ii) amend its records to update the change in meter and installation numbers.

2.14 Delivery and Title of Electricity Supplieda) The Contractor warrants that it has the relevant right, title and interest to supply

electricity to the Principal in accordance with the Contract.

b) The point of delivery of electricity supplied by the Contractor to the Principal pursuant to the Contract will be at the Supply Point and after it has been supplied at the Supply Point the Contractor has no further obligations in relation to the supply of electricity except as otherwise provided in the Contract.

c) Title and risk associated with electricity will transfer to the Principal immediately at the point that it passes the Supply Point.

2.15 Contractor’s RatesThe Contractor will charge and the Principal will pay the Rates, for electricity supplied to the Principal under the Contract.

2.16 Take or Pay RestrictionThe Annexure provides which of the following options is applicable to this Contract in relation to Take or Pay Amounts.

Applicable If Specified In Annexure – Take Or Pay Alloweda) If the Annexure states that Option 1 (Accept take or pay in Contractor’s Tender) applies,

then clause (b) below applies to this Contract and Option 2 below does not apply.

b) If the Contractor’s Tender includes a Take or Pay Amount then the Principal agrees to take or pay for a quantity of electricity in a Contract Year so that Rates for that Contract Year are not less than the Take or Pay Amount set out in the Contractor’s Tender for a Contract Year.



Applicable If Specified In Annexure – Take Or Pay Not Alloweda) If the Annexure states that Option 2 (No take or pay restriction or non-acceptance of

take or pay) applies, then clause (d) below applies to this Contract and Option 1 above does not apply.

b) The Principal is not required by the Contract to purchase a maximum or minimum quantity of electricity from the Contractor and there is no Take or Pay Amount imposed upon the Principal by the Contract.

2.17 Usage in Excess of Estimated Loada) If the quantity of electricity sold under the Contract in any Contract Year exceeds one-

hundred and fifteen (115%) of the Estimated Load (“Excess Quantity”) the off-peak and on-peak rates charged for the Excess Quantity will be:

(i) the Rates specifically stated as applying to excess quantities; or

(ii) if no Rates are specified for excess quantities, as agreed between the Contractor and the Principal in writing.

2.18 Notice of Impending Volume Breacha) If a Limit on Load Growth or other restriction is at risk of being breached by the Principal,

the Contractor will, at least three (3) months prior to the anticipated breach occurring, provide the Principal with an impending volume breach report (“IVB Report”) to enable the Principal to track the actual consumption of electricity.

b) Where the Principal has maintained a consistent pattern of consumption so that a breach of a Limit On Load Growth or other restriction on load growth should have been foreseen and:

(i) the Contractor fails to provide a IVB Report; or

(ii) a IVB Report provided by the Contractor demonstrated that it was likely that the Principal’s total electricity consumption would not breach a Limit on Load Growth or any other restriction,

the Principal will not be liable to the Contractor for any penalties or other charges for excess electricity consumption.

c) The IVB Report will be served on the Customer in accordance with clause 2.48.

2.19 Relevant Taxesa) The Rates are firm and will not be adjusted by the Contractor, except pursuant to this

clause 2.19 and clause 2.20.

b) If, after the commencement of the Term, any new Relevant Tax is imposed or passed on to the Contractor by any government (federal, state or local) or a Network Provider in respect of or in relation to the electricity sold to the Principal under the Contract, the Contractor will:

(i) notify the Principal of the Relevant Tax and impact of the Relevant Tax including full calculations and any other supporting documentation;

(ii) subject to clause 2.19(b)(iii), be entitled to pass on to the Principal the amount of any such Relevant Tax but only insofar as it specifically relates to the electricity supplied under the Contract, and the pricing in the Contract will be adjusted accordingly; and

(iii) apportion fairly, on a pro rata basis, any increase arising out of a Relevant Tax between:



A. all persons or entities to which it supplies electricity; and

B. itself, if the Contractor uses electricity for its own purposes.

c) If, at any time during the Term, any Relevant Tax imposed or passed on to the Contractor is reduced or removed, the Contractor will pass on to the Principal the amount of that reduction or removal insofar as it specifically relates to the electricity supplied pursuant to the Contract and the pricing in the Contractor’s Tender will be adjusted accordingly.

d) This clause 2.19 does not extend to or relate to GST, which is dealt with in clause 2.21.

2.20 Changes to Regulated FeesThe Contractor will provide the Principal with prior written notice of any changes to regulated fees or charges that may impact the Rates and such notice will include an estimate of the net impact of the changes and advice from the Contractor detailing any steps that may be taken by the Contractor or the Principal to minimise the impact of changes to regulated fees or charges.

2.21 Goods and Services Taxa) 1For the purposes of this clause 2.21 unless the context otherwise requires:

(i) ‘GST’ means any tax imposed on Supply by or through the New Tax System (Goods and Services Tax) Act 1999 (the Act) and any related Tax imposition Act.

(ii) ‘GST Rate’ means the percentage amount of GST payable determined under section 9-70 of the Act as amended from time to time; and

(iii) ‘Input Tax Credit’, ‘Recipient’, Supplier’ and ‘Supply’ have the meaning they bear in the Act;

(iv) where any other term is used in this clause which is defined in the Act it shall have the meaning which it bears in the Act;

b) The Contractor and the Principal acknowledge that the consideration under the Contract is inclusive of GST, where GST is calculated using the GST Rate at the Date of First Supply.

c) Where the GST Rate is changed after the Date of First Supply the consideration under the Contract will be increased or decreased so that the consideration remains inclusive of GST, with GST calculated using the new GST Rate from the date of the change of the GST Rate that applies at the date of formation of the Contract.

2.22 Accountsa) The Contractor will issue the Principal with an account for each Contract Month in

arrears detailing for that Contract Month:

(i) the cost of electricity supplied in the previous month, itemised based on the Rates

(ii) any Relevant Tax;

(iii) all usage figures itemised based on the prices set out in the Rates;

(iv) all charges, including any regulated fees and network and system control charges;

(v) demand quantities; and

(vi) GST.

b) Each account issued under the Contract will include the Principal’s Contract or purchase order number applicable to the Contract.



2.23 Form of Account and GSTThe Contractor will provide the accounts to the Principal in the form of tax invoices and/or adjustment notes, in a format acceptable to the Principal, in relation to the Supply prior to the amount being paid by the Principal under the Contract and will do all things reasonably necessary to assist the Principal to enable the Principal to claim and obtain any Input Tax Credit available to the Principal in respect of the Supply.

2.24 Rounding of DollarsFor the purpose of payments due under the Contract any fractional part of a dollar will be rounded to two places after the decimal point with the second decimal being rounded up if the third decimal is "5" or a greater number and rounded down if the third decimal is less than "5".

2.25 Time for Paymenta) Accounts issued under the Contract will be sent to the address of the Principal

determined from time to time pursuant to clause 2.48. The Principal will pay the account within thirty (30) days from the date of the account by direct debit to an account nominated for that purpose from time to time by the Contractor.

b) Failure by the Principal to pay an account by the due date:

(i) will not be grounds to vitiate or avoid the Contract; and

(ii) will entitle the Contractor to make a claim for interest penalties on the late payment in accordance with clause (c).

c) Interest penalties must be claimed within ninety (90) days of the date the late payment was made by the Principal and the claim must be in the form of a tax invoice. Interest penalties are to be calculated daily, for the period after the due date until the date payment is made by the Principal, at the ninety (90) day bank bill swap rate published on 1 June each year by the Australian Financial Markets Association. Where an interest penalty period spans 1 June, the rate will be the rate published in the year the original invoice was issued.

d) The Principal will not be liable for interest penalties on any payments in respect of interest penalties.

2.26 Amended Accounts and Overchargesa) Where an account issued by the Contractor is incorrect, the Contractor will credit the full

amount on the incorrect account to the Principal and promptly re-issue an amended account.

b) Where the amended account requires payment by the Principal in relation to electricity supplied, the Principal must make payment within thirty (30) days, except that the thirty (30) day payment period will commence from the date of the amended account.

c) Any overcharges on an account must be promptly credited to the Principal by the Contractor.

2.27 Final InvoiceThe Contractor will issue a final invoice within sixty (60) days of the expiry of the Term.

2.28 Contractor’s Right to Suspend or Disconnect Supplya) The Contractor may procure the disconnection or suspension of the supply of electricity

to the Supply Point where:

(i) the Contractor or another Electricity Entity believes that it is necessary to ensure safety or avert danger to person or property;



(ii) the Contractor or another Electricity Entity needs to carry out tests or inspections;

(iii) the Contract is lawfully terminated in accordance with its terms;

(iv) the Contractor has the power to do so under the Electricity Reform Act or any other Applicable Law; or

(v) there is an Intervening Event affecting the ability of the Contractor to supply electricity to the Supply Point.

b) In the absence of a court order, the Contractor will not use the threat of disconnection to resolve any dispute that arises in relation to the Contract or the supply of electricity to the Principal generally.

2.29 Obligations of Contractor in Suspension or DisconnectionThe Contractor will:

a) give as much prior notice to the Principal of any disconnection or suspension as is reasonably practicable in the circumstances;

b) minimise as far as possible, and in accordance with Good Electricity Industry Practice, the time of the suspension or disconnection;

c) prioritise the re-establishment of supply in accordance with any Suspension Or Disconnection Communication Protocol;

d) comply with any Suspension Or Disconnection Communication Protocol; and

e) comply with, and put measures in place to ensure any relevant Electricity Entity complies with any Suspension or Disconnection Communication Protocol.

2.30 Intervening Events

2.30.1 Definition Of Intervening EventFor the purposes of this clause 2.30 ‘Intervening Event’ means any event or circumstance that is not reasonably foreseeable and not within the reasonable control of a Party and which by exercise of due diligence that Party is not reasonably able to prevent or overcome including:

a) acts of God including but not limited to epidemics, storms, fire, cyclones, explosions, lightning strikes, landslides, earthquakes, floods and washouts;

b) strikes, lockouts, bans or other industrial disturbance;

c) acts of the enemy including but not limited to wars, blockades or insurrections;

d) riots and civil disturbances;

e) any legislation or regulation or the order of any court or the order, act or omission of any government or governmental authority;

f) any act or omission of any persons with facilities connected to the Electricity Network (as that term is defined in the Electricity Reform Act) that affects or frustrates a Party's ability to perform its obligations under the Contract; or

g) any significant Infrastructure, plant or equipment failure which could not have been avoided by the exercise of Good Electricity Industry Practice.

2.30.2 Non-Performance Excused By Intervening EventNon-performance by any Party of any obligation or condition to be performed under the Contract:

a) will be excused during the time and to the extent that performance is prevented or hindered by an Intervening Event; and



b) will not in any event give rise to any liability to the other Party for loss or damage of any kind arising out of or in any way connected with that non-performance.

2.30.3 Notification and Diligencea) A Party which, by reason of Intervening Event, is unable to perform any obligation or

condition to be performed under the Contract will:

(i) notify the other Party as soon as possible giving:

A. reasonably full particulars of the circumstances;

B. the date of commencement of the Intervening Event and an estimate of the period of time required to enable it to resume full performance of its obligations; and

C. where possible, the means proposed to be adopted to remedy or abate the Intervening Event;

(ii) use all reasonable diligence and employ all reasonable means to remedy or abate the Intervening Event as quickly as possible;

(iii) resume performance as quickly as possible after termination of the Intervening Event or after the Intervening Event has abated to an extent which permits resumption of performance; and

(iv) notify the other Party when the Intervening Event has terminated or abated to an extent which permits resumption of performance to occur.

b) No Party will, by virtue of this clause, be required against the will of that Party to adjust or settle any strike, lockout or other labour dispute.

2.30.4 Monetary Obligationsa) Subject to clause b), an obligation by a Party to pay money will not be suspended or

excused by Intervening Event.

b) If by reason of an Intervening Event the supply of electricity to the Principal is interrupted or disconnected, the Principal’s obligation to pay money will be suspended from the time the supply of electricity was interrupted/disconnected until the time the supply of electricity resumes.

2.30.5 Termination for Prolonged Intervening Eventa) If by reason of Intervening Event any Party ("the affected Party") is unable to perform

any obligation or condition required by the Contract the affected Party and the other Party ("non-affected Party") will negotiate in good faith to determine what steps may be taken by them to carry out the intentions of the Contract.

b) If, after a period of fourteen (14) days the affected Party is unable to achieve full compliance with its obligations under the Contract and the Parties have been unable to reach agreement (satisfactory to the non-affected Party) as to dealing with the failure of the affected Party to comply with its obligations then at any time prior to the affected Party resuming compliance with its obligations under the Contract the non-affected Party may terminate the Contract by giving one (1) month’s notice in writing to that effect to the affected Party, without prejudice to any of the rights of the Parties accrued prior to the date of termination.



2.31 Disputes

2.31.1 Notice Of DisputeIf a dispute arises between the parties as to any matter concerning the Contract (‘Dispute’), the Party claiming the Dispute will give immediate notice in writing to the other party providing details of the Dispute.

2.31.2 Negotiationa) Within five (5) Business Days of a Party receiving the notice referred to in clause 2.30.1,

or such longer period as agreed by the Parties in writing, representatives of the Parties will meet and attempt to resolve the dispute by negotiation.

b) In the event that the Parties are unable to reach a resolution of the Dispute by negotiation within five (5) Business Days of their representative meeting, either Party may by notice in writing to the other Party advise the other Party that it seeks to have the Dispute resolved by expert determination (‘Expert Determination Notice’).

2.31.3 Appointment Of Independent Experta) Within five (5) Business Days of an Expert Determination Notice being served either

Party may request the President of the Law Society of the Northern Territory to nominate an independent expert (being a recognised expert in relation to the matter the subject of the Dispute), to determine the matter the subject of the Dispute and will, once an expert has been nominated, the Party that requested the nomination will promptly notify the other Party of the name of the independent expert so nominated.

b) The Parties agree that the instrument appointing the independent expert will, in determining a matter the subject of a Dispute, require the independent expert to:

(i) act as an expert only not as an arbitrator;

(ii) consider any submissions which may be made by a Party within fifteen (15) days of receipt by the Party of notice of the nomination of the independent expert;

(iii) make a determination independently;

(iv) use best endeavours to complete a determination within forty (40) days of the date of nomination; and

(v) upon completion of their determination deliver a signed copy of it to the Parties.

c) If the independent expert fails to complete its determination within the time prescribed, the Parties may at any time prior to completion of that determination by mutual agreement declare that the independent expert has ceased to be an expert for the purposes of this clause in which case the provisions of this clause will apply in respect of the appointment of a new independent expert.

2.31.4 Decision Of Independent ExpertThe decision of an independent expert is absolute and final and will bind the Parties accordingly and the Contract will be deemed to be amended to incorporate the terms of the independent expert's decision.

2.31.5 Costs And Materialsa) The parties will bear the costs of the independent expert’s determination equally.

b) The parties will make available to the independent expert all materials requested by it and will furnish it with all other materials which are relevant to the determination.



2.32 Principal Defaulta) The Principal is in default of the Contract if the Principal:

(i) defaults in the performance of an obligation imposed upon the Principal by the Contract and, where such a default is capable of remedy, the Principal fails to remedy any such default within ten (10) Business Days after receiving a notice from the Contractor specifying the default, or within the time period stated in the notice from the Contractor, which ever is later; or

(ii) assigns, transfers, mortgages or encumbers its interest in the Contract without the written consent of the Contractor.

b) If the Principal is in default of the Contract the Contractor may, by notice in writing to the Principal, terminate the Contract.

2.33 Contractor Defaulta) The Contractor is in default of the Contract if:

(i) the Contractor defaults in the performance of an obligation imposed upon the Contractor by the Contract and, where such a default is capable of remedy, the Contractor fails to remedy any such default within ten (10) Business Days after receiving a notice from the Principal specifying the default, or within the time period stated in the notice from the Principal, whichever is later; or

(ii) an Insolvency Event occurs in respect of the Contractor.

b) If the Contractor is in default of the Contract the Principal may, by notice in writing to the Contractor either:

(iii) elect to wholly or partly suspend payment under the Contract, until the earlier of fourteen (14) days or the rectification of the default; or

(iv) terminate the Contract; or

(v) after a period of suspension of payment, terminate the Contract.

2.34 Termination by mutual agreementThe Parties may, by mutual agreement in writing, terminate the Contract

2.35 Effect of Terminationa) Termination of the Contract pursuant to clause 2.32, 2.33, or 2.34 will not affect any

rights or obligations which may have accrued at or prior to termination, including any in respect of any prior breach by a Party.

b) The termination rights set out in clauses 2.32, 2.33, and 2.34 and are in addition to and not in substitution for any rights and remedies available to a Party, whether pursuant to the Contract, at law, at equity or otherwise.

c) Upon the termination of the Contract, for whatever reason and howsoever arising, the Contractor will take any such action which the Principal reasonably requires to facilitate the orderly transition to a new electricity supplier.

2.36 No Liability for Loss or ProfitUnless otherwise expressly provided for in the Contract, a Party will not be liable in any circumstance for the other parties loss of profit, business or for any indirect or consequential loss of the other Party arising out of any failure to comply with the Contract in contract, tort (including negligence) or otherwise.



2.37 IndemnitySubject to clauses 2.36 and 2.38 the Contractor releases and indemnifies the Principal and its employees, servants, subcontractors and agents from and against all actions, proceedings, claims and demands whatsoever which may be brought or made against them by any person in respect of or by reason of or arising out of any negligence or other wrongful act or omission of the Contractor or the Contractor’s employees, servants, subcontractors or agents or of any other person for whose acts or omissions the Contractor is vicariously liable.

2.38 Statutory Limitations of LiabilityThe Parties acknowledge that the Contractor’s liability is limited pursuant to the Electricity Reform Act.

2.39 Conflict of InterestThe Contractor will inform the Principal of any matter, which may give rise to an actual or potential conflict of interest of the Contractor at any time during the currency of the Contract.

2.40 Confidential Informationa) For the purposes of clause 2.40 ‘Confidential Information’ means any information or

material relating to the Contract provided by or for one Party to the other Party, including but not limited to:

(i) material derived from discussions leading up to the execution of the Contract by the Parties;

(ii) the terms of the Contract including the Contract;

(iii) any information that by its nature is confidential;

(iv) any information designated as confidential by the Party by or for whom the information is provided; and

(v) any information that the recipient of the information knows or ought to know is confidential.

b) Each Party must hold all Confidential Information of the other Party in confidence and must not make any use of it, except for the purposes of performing its obligations or exercising its rights under the Contract and must not disclose or permit or cause Confidential Information to be disclosed to any person, except:

(vi) as authorised by the other Party under the Contract;

(vii) to its employees, contractors or agents, on a need to know basis;

(viii)which is required to be disclosed by law or the rules and requirements of a stock exchange; and

(ix) in the case of the Principal, to the Parliament, the Administrator, Cabinet, a Minister or any Parliamentary, Ministerial or Cabinet Committee of the Northern Territory.

2.41 Compliance with Procurement Codea) The Contractor will comply with the Northern Territory Procurement Code.

b) A copy of the Code can be found at:

http://www.nt.gov.au/dbe/business/tenders-contracts/references/Pages/code.aspx



2.42 Local Developmenta) The Contractor will, except in cases where the Contractor can reasonably demonstrate

to the Principal that it is impractical for commercial, technical or other reasons to do so:

(i) use labour, including apprentices and trainees and indigenous labour, available within the Northern Territory; and

(ii) use the services located and obtain supplies/materials available within the Northern Territory.

b) The Contractor will, when requested by the Principal, submit a written report concerning the compliance with the provisions of this clause.

c) The Contractor will comply with the industry participation plan (if any) contained in the Contractor’s Tender, including any performance measures or milestones contained therein.

2.43 AmendmentsAny variation or amendment of the Contract or any other document that comprises the Contract must be in writing and signed by both Parties.

2.44 Assignmenta) Neither Party may assign any rights or obligations under the Contract unless the prior

written consent of the other Party has been obtained.

b) No Party will unreasonably withhold consent to an assignment if the Party believes the assignee is able to carry out all the obligations of the assignor under the Contract.

c) A Party may require the assignee to enter into a deed acknowledging and agreeing to observe the terms of the Contract.

2.45 Sub-contractinga) Should the Contractor desire to sub-contract any part or parts of its obligations under the

Contract it will submit to the Principal for its approval the names of the proposed contractors and the nature of the obligations that the contractors will undertake.

b) The Contractor will not sub-contract any of its obligations under the Contract unless written approval is first obtained from the Principal. Such approval will not be unreasonably withheld.

c) Nothing contained in the Contract will in any way be construed as relieving the Contractor of its responsibility for the performance of the Contract.

d) Any approval by the Principal to engage a sub-contractor for any part of the Services shall not relieve the Contractor from any of its liabilities under the Contract. The Contractor shall be fully liable to the Principal for the work of the sub-contractor or any employee or agent of the sub-contractor.

2.46 Performance Reporta) The Contractor agrees that upon expiry or termination of the Contract:

(i) the Principal will prepare a contractor’s performance report (‘the Report’);(ii) the Principal will liaise with the Contractor in completing the Report although the

Principal reserves the ultimate right to complete the Report; and

(iii) the Principal may release the Report to an agency of the Commonwealth or any State or Territory for evaluation of the Contractor’s performance in the assessment of future tenders.



b) The Contractor agrees that neither the Contractor nor any other person will have any claim against the Principal or employees or agents of the Principal under any circumstances as a result of the preparation and use of the Report.

2.47 Privacya) In this clause:

(i) Act means the Information Act (NT);

(ii) Privacy Laws means:

A. the Act; and

B. the Information Privacy Principals set out in the Act or any ‘code of practice’ approved under the Act that applies to any of the Parties to the Contract.

(iii) Personal Information means all information about a person that is “personal information” as defined in the Act which is collected and/or handled by any of the Parties in connection with the Contract.

b) The Contractor will deal with all Personal Information in a manner which is consistent with the Privacy Laws and any other relevant privacy legislation, as if the Contractor were a public sector organisation.

c) The Contractor will collect, use, disclose or otherwise deal with Personal Information only for the purposes of fulfilling its obligations under the Contract.

d) The Contractor will not disclose Personal Information without the written authority of the Principal, and in any event disclosure is to be in accordance with the Privacy Laws.

e) The Contractor is to immediately notify the Principal where it becomes aware that a disclosure of Personal Information may be required by law.

f) The Contractor is to ensure that any employees, agents or contractors, and any other person who may have access to Personal Information held by the Contractor, are aware of the obligations of the Contractor under the Contract and undertake to not collect, access, use, disclose or otherwise deal with Personal Information except in performing their duties of employment and in accordance with the Contract.

g) The Contractor is to take all reasonable measures to ensure that Personal Information is protected from misuse and loss and from unauthorised access, modification, disclosure or other misuse and that only personnel necessary to fulfil the obligations under the Contract have access to the Personal Information.

h) Where requested by the Principal, the Contractor will develop and obtain the Principal’s written approval for:

i) policies for the management of personal information; and

ii) complaint handling procedures.

i) Each Party is to immediately notify the other when a complaint is received.

j) The Contractor acknowledges that individuals have the right to request access to, or correction of, the Personal Information held about them.

k) The Contractor must not transfer Personal Information outside the Northern Territory without the prior approval of the Principal.

l) The Contractor, in respect to Personal Information, is to immediately notify the Principal where the Contractor becomes aware of a breach of this clause or the Privacy Laws.

m) The Contractor indemnifies the Principal in respect of any liability, loss or expense incurred arising out of or in connection with a breach of the obligations of the Contractor under the Contract.



n) When the Contract expires or is terminated, the Contractor must, at the Principal's discretion:

o) either return to the Principal all records containing Personal information;

(i) retain any material containing Personal Information in a secure manner as approved by the Principal; or

(ii) destroy or delete any Personal Information.

2.48 Noticesa) Any notice, approval, consent, demand or other communication given under the

Contract must be in writing and be:

(i) served personally; or

(ii) sent by pre-paid certified post or facsimile.

b) A Party may from time to time, by notice in writing served upon the other Party, change their address or facsimile number for the service of notices (or accounts).

c) Mail will be deemed to have been received on the second Business Day from and including the date of posting.

d) Facsimiles sent before 4.00 pm on a Business Day will be deemed to be received on that day, but if sent after 4.00 pm will be deemed to be received at 9.00 am the next Business Day. The sender must have a transmission report stating that the facsimile was sent successfully to the other Party's facsimile number.

e) For the purposes of this clause 2.48:

(iii) the Principal’s address details for the service of notices are those specified in the “contact person” section in the Annexure; .

(iv) the Contractor’s address details for the service of notices are those specified in the ‘Tender Form’ section of the Contractor’s Tender.

2.49 CostsEach Party bears its own costs of and incidental to the preparation and execution of the Contract.

2.50 Entire AgreementThe Contract constitutes the entire agreement between the Parties in relation to the supply of electricity to the Supply Point and supersedes any prior negotiations, representations, proposals, understandings and agreements concerning the supply of electricity.

2.51 SeveranceIf any term or other part of the Contract is invalid or unenforceable it will be severed from the Contract but the remaining terms will still be valid.

2.52 WaiversNo waiver by any Party of any breach by the other Party of any of the terms of the Contract, nor any delay in the exercise of any power or remedy which may become exercisable as a result of such breach of default, will operate or be construed as a waiver for any other preceding or succeeding breach or default by that other Party, whether of a like or different character.

2.53 Special ConditionsThe Contract will be subject to and the Parties will comply with the special conditions (if any) set out in the Request for Tender (‘Special Conditions’).Supply of Electricity Version 4.1.01 – Page 41