TERMS & CONDITIONS

1. Definitions

In this agreement:

“Beiersdorf” means the Beiersdorf company specified in the Contract Details and (where the context permits) its Related Bodies Corporate.

“Business Day” means a day on which banks are open for general banking business in New South Wales, excluding Saturdays and Sundays; 

“Commencement Date” means the Commencement Date as set out in the Contract Details. 

“Confidential Information” means any information, in written, oral or any other form, that the Service Provider knows, or ought to know, is confidential to Beiersdorf, including but not limited to financial, business, marketing, manufacturing, design, technical or product information relating to Beiersdorf or Beiersdorf’s business.

“Contract Details” means the reference table entitled ‘Contract Details’ attached to this agreement.

“Contract Material” means all material produced or generated by the Service Provider or provided to the Service Provider in the course of the provision of the Services, and any material produced or generated by the Service Provider as a result of using any resources (including Confidential Information and Intellectual Property Rights) of Beiersdorf and its Related Bodies Corporate and includes any software in source or object code form, anything in the nature of a literary work, document, research material, notes, graphs, reports, data, other information or work product arising out of or in relation to the Services;

“Fee” means the fee set out in the Contract Details which is inclusive of all costs and expenses and applicable taxes, with the exception of GST;

“Force Majeure Event” means anything outside a party’s reasonable control including acts or omissions of the other party, fire, storm, flood, earthquake, war, labour dispute, embargo or failure or delay in transportation, acts or omissions of any third person (including acts of Federal, state, local or foreign governmental authorities or courts);

“Intellectual Property Rights” means intellectual property rights, including but not limited to:

  • patents, copyright, rights in circuit layouts, plant breeders rights, registered designs, trade marks and any right to have confidential information kept confidential; and
  • any application or right to apply for registration of any of the rights referred to in (a);

“Law” means the common law and any Federal or state legislation, regulation, proclamation, ordinance or by-law of Australia;

“Moral Rights” means rights of integrity of authorship, rights of attribution of authorship, rights not to have authorship falsely attributed and rights of a similar nature that exist, or may come to exist, anywhere in the world in the Contract Materials;

“Personnel” means the employees and contractors engaged by a party;

“Related Bodies Corporate” is defined in the Corporations Act 2001;

“Services” means the Services described in the Contract Details.

“Term” means the Term specified in the Contract Details.

2. Term

Except as otherwise stated in the Contract Details, this agreement commences on the Commencement Date and continues until expiry of the Term or earlier termination in accordance with Clause 12.

3. Provision of Services

The Service Provider must provide the Services ordered by Beiersdorf in accordance with the terms of this agreement.

Beiersdorf will not be liable for any costs incurred in the performance of services unless those costs form part of the Services and have been approved by Beiersdorf.

The Service Provider must ensure that the Services are performed in a professional, competent, timely and diligent manner and in compliance with all applicable Law.

The Services may be amended from time to time with the prior written agreement of the parties.

The performance of the Services will be reviewed at project critical stages nominated by Beiersdorf to determine whether the Services have been performed satisfactorily. Where, in the opinion of Beiersdorf, the Services performed to that stage are unsatisfactory, Beiersdorf may require the Service Provider to take such remedial actions as deemed necessary by Beiersdorf. Beiersdorf may withhold payment of the Fee until such remedial action is completed, or deduct a reasonable amount from the Fee to reflect the unsatisfactory performance of the Services. Any additional costs incurred by the Service Provider in complying with this clause must be borne by the Service Provider.

Where Beiersdorf provides, or arranges for a third party to provide, any materials, tools, plant or equipment, (‘Beiersdorf Equipment’), to the Contractor for use in carrying out the Services under this agreement, the Contractor agrees:

  • it will comply with Beiersdorf’s reasonable requirements relating to ordering, receipt, tracking, use and returning of the Beiersdorf Equipment to Beiersdorf in the condition that it was taken.
  • it will ensure the Beiersdorf Equipment is used only for the purpose intended and in accordance with all applicable Laws, Australian Standards and good industry practise;
  • the Contractor is responsible for the maintenance, security, safe custody, protection, care and workmanlike operation of the Beiersdorf Equipment provided to the Contractor (including its employees and subcontractors) from the time the Beiersdorf Equipment is obtained from Beiersdorf until the time that Beiersdorf Equipment is returned to Beiersdorf;
  • if any Equipment provided to the Contractor by or on behalf of Beiersdorf is lost or damaged, the Contractor must make good, at its own expense, any such loss or damage to the Beiersdorf Equipment which is in excess of reasonable wear and tear; and
  • the Contractor will promptly return the Beiersdorf Equipment to Beiersdorf when the Contractor has ceased using the Beiersdorf Equipment or upon any earlier request by Beiersdorf.  

4. Fees and payment

Subject to Clause 3.5, Beiersdorf will pay the Service Provider the Fee.

Except as otherwise provided in the Contract Details, the Service Provider must issue Beiersdorf with a tax invoice at the end of each calendar month. Beiersdorf will review each tax invoice and if it approves the amount of such invoice, will pay the Service Provider within 60 days from the date of the invoice received by Beiersdorf. 

The Service Provider acknowledges and agrees that Beiersdorf will be entitled to set-off of against all sums due and payable to the Service Provider any moneys payable by the Service Provider to Beiersdorf from time to time under this agreement.

5. Goods and Services Tax

Except as otherwise stated in this agreement, and subject to the provisions set out below, if any supply made under or in connection with this agreement by one party (‘Supplier’) to the other party (‘Acquirer’) is subject to GST, the payment for that supply will be increased by an amount equal to the GST payable.

The Acquirer will not be obligated to make a payment on account of GST under Clause 5.1 until the Supplier has issued a tax invoice to the Acquirer for the supply to which the payment relates.

If a payment made by one party to the other party is a reimbursement or indemnification of a cost, expense, loss or liability incurred by that other party, the payment shall be reduced by an amount for which that party is entitled to an input tax credit.

Words or expressions used in this agreement, which are defined in A New Tax System (Goods and Services Tax) Act 1999, have the same meaning.

6. Service Provider Warranties

The Service Provider warrants that:

  • it has the authority to execute this agreement and to lawfully perform and observe all the terms and conditions of this agreement;
  • it and its personnel are suitably qualified and have sufficient expertise to provide the Services;
  • it has sufficient and suitable equipment to perform the Services; ⦁ it has, and will maintain, all licences and approvals to provide the Services lawfully;
  • it will comply with all safety and security regulations and reasonable instructions given by Beiersdorf in respect of Beiersdorfs premises or facilities;
  • provision of the Services will not infringe the Intellectual Property Rights of any person; and
  • the use by Beiersdorf of the Contract Material will not infringe the Intellectual Property Rights of any person.

In respect of any goods provided to Beiersdorf in connection with the Services (‘Goods’), the Service Provider warrants:

  • it is able to provide title to the Goods free from any charge or encumbrance;
  • the Goods will comply with all applicable Laws;
  • unless otherwise approved by Beiersdorf in writing, the Goods are new and comply with the specifications provided by Beiersdorf for the Goods (if any);
  • the Goods are free from defects in material and workmanship; and
  • the Goods are fit for the purposes for which goods of the same kind are commonly used and any other purposes made known to the Service Provider.

7. Confidential Information

The Service Provider must not use the Confidential Information for any other purpose than providing the Services. 

The Service Provider must:

  • keep the Confidential Information confidential;
  • take all action necessary to maintain the confidential nature of the Confidential Information;
  • use its best endeavours to prevent any disclosure of the Confidential Information; and
  • not disclose the Confidential Information to any person or entity, or reproduce or copy the Confidential Information, without the prior written consent of Beiersdorf.

The Service Provider will not be liable for disclosing the Confidential Information where 

  • ⦁ the Confidential Information is or becomes public knowledge other than in breach of this agreement;
  • the Service Provider independently develops or knows the Confidential Information; or
  • the Confidential Information is required to be disclosed by Law.

Where the Service Provider is required by Law to disclose the Confidential Information it must before doing so, notify Beiersdorf immediately and give Beiersdorf a reasonable opportunity to take any steps that Beiersdorf considers necessary to protect the Confidential Information.

Nothing in this agreement will exclude, or should be construed as being intended to exclude, the equitable jurisdiction of the courts to grant remedies to Beiersdorf for breach by the Service Provider of its equitable duty of confidence.  If a claim for breach of confidence in equity is available to Beiersdorf, that claim will co-exist with Beiersdorf’s right to seek remedies for breach of the obligation of confidence under this agreement.

8. Intellectual Property

The Service Provider assigns to Beiersdorf all existing and future Intellectual Property Rights in the Contract Material and any other material created by the Service Provider with Beiersdorf or any other party in the course of or in connection with providing the Services.

The Service Provider warrants that any assignment to Beiersdorf under Clause 8.1 will not infringe the Intellectual Property Rights of any person.

The Service Provider grants to Beiersdorf and its Related Bodies Corporate a non-exclusive, royalty-free, perpetual, irrevocable, transferrable and sub-licensable licence to use, modify, adapt and disseminate any Intellectual Property Rights owned by the Service Provider and reasonably required by Beiersdorf to exercise its rights as owner of (including its rights to use and modify) the Contract Material.

In no event will the assignment under Clause 8.1 or the Licence under Clause 8.3, oblige Beiersdorf to pay the Service Provider any additional compensation, by way of royalties or otherwise, for the Intellectual Property Rights assigned and licensed.

To the extent permitted by law, the Service Provider must ensure that each of its employees and subcontractors engaged in the production or generation of Contract Material:

  • consents to any act or omission that would otherwise infringe Moral Rights of that person, whether occurring before or after this consent is given;
  • waives all of the Moral Rights of that person worldwide, for the benefit of Beiersdorf and its Related Bodies Corporate, its licensees, successors in title and anyone authorised by any of them to do any act in any copyright in the Contract Material.

9. Relationship between the Parties

This agreement does not create a relationship of employment, agency or partnership between the parties or give the Service Provider any authority to enter into legally binding agreements on behalf of Beiersdorf.

The Service Provider must not represent itself as being an employee or agent of, or in partnership with, Beiersdorf. 

10. Insurance

Public liability insurance

The Service Provider must effect and maintain, or cause to be effected and maintained, during the Term a public liability insurance policy, including sudden & accidental pollution and motor vehicle tools of trade extension:

  • with a reputable insurer minimum S&P Rating A- or equivalent on terms satisfactory to Beiersdorf;include Beiersdorf as an insured party for their respective rights and interests and liabilities to third parties, including the liability of the Service Provider to Beiersdorf arising out of the performance of the contract;
  • for at least the amount of $20,000,000 for any one occurrence and unlimited in the aggregate;
  • from the commencement of the Services until the Service Provider ceases performing the Services;
  • include a cross liability clause, noting that the insurance applies separately to each insured against whom a claim is made or a suit is brought;
  • waive the insurer suborgation rights against Beiersdorf; and
  • include a clause that provides the interests of each individual insured is not prejudiced by the failure or breach of one insured to observe and fulfil the terms and conditions of the insurance policy.

Product liability insurance

The Service Provider must effect and maintain, or cause to be effected and maintained, during the Term a product liability insurance policy, including sudden & accidental pollution:

  • with a reputable insurer minimum S&P Rating A- or equivalent on terms satisfactory to Beiersdorf;
  • include Beiersdorf as an insured party for their respective rights and interests and liabilities to third parties, including the liability of the Service Provider to Beiersdorf arising out of the performance of the contract;
  • for at least the amount of $20,000,000 for any one occurrence in the aggregate;
  • from the commencement of the Services until the Service Provider ceases performing the Services;
  • include a cross liability clause, noting that the insurance applies separately to each insured against whom a claim is made or a suit is brought;
  • waive the insurer suborgation rights against Beiersdorf; and
  • include a clause that provides the interests of each individual insured is not prejudiced by the failure or breach of one insured to observe and fulfil the terms and conditions of the insurance policy.

Professional indemnity insurance

The Service Provider must effect and maintain, or cause to be effected and maintained, during the Term and for a period of seven years after expiry of the Term a professional indemnity insurance policy covering liability arising in connection with the provision of services or breach of professional duty by the Service Provider in performing the Services under the agreement:

  • on terms satisfactory to Beiersdorf;
  • with an indemnity limit of at least the amount of $10 million for any one occurrence which may arise during the existence of the policy; and
  • in respect of legal liability arising from a breach of professional duty or otherwise arising from any act, error or omission by the Service Provider or its employees, agents or Service Providers.

Motor vehicle insurance

The Service Provider must effect and maintain, or cause to be effected and maintained, during the Term motor vehicle insurance covering all mechanically propelled vehicles that are registered, or required to be registered, for road use and are at any time used in connection with this agreement, including:

  • insurance that is compulsory under applicable Laws governing the use of motor vehicles and liability for personal injury or death;
  • liability insurance for third party property damage minimum $20,000,000 per occurrence and unlimited in the aggregate;
  • with a reputable insurer minimum S&P Rating A- or equivalent on terms satisfactory to Beiersdorf;
  • include Beiersdorf as an insured party for their respective rights and interests arising out of the performance of the contract;
  • include a cross liability clause, noting that the insurance applies separately to each insured against whom a claim is made or a suit is brought;
  • waive the insurer suborgation rights against Beiersdorf; and
  • include a clause that provides the interests of each individual insured is not prejudiced by the failure or breach of one insured to observe and fulfil the terms and conditions of the insurance policy

Insurance required by legislation

The Service Provider must effect and maintain, or cause to be effected and maintained, during the Term insurance (including workers compensation insurance and such other insurances as required by Law) covering injury to employees and other persons performing work for Service Provider or on its behalf and against any liability which may arise at common law or under any relevant workers or accident compensation legislation. The Service Provider must also effect and maintain employer’s liability insurance in respect of each person employed by the Service Provider from time to time in connection with the Services and any other insurances required in connection with the Services by Law. 

Unless prohibited by law, the insurance outlined must;  

  • indemnify Beiersdorf against any liability which it may incur to the Consultant's employees, arising by virtue of the applicable workers' compensation statute or regulations or at common law;waive all express or implied rights of subrogation against Beiersdorf;
  • provide cover in respect of each and every claim for an amount not less than the minimum statutory requirement; and
  • be maintained at all times during the performance of the Services.

Insurance of subcontractors and assignees

The Service Provider must ensure that, on terms satisfactory to Beiersdorf:

  • any subcontractors engaged by the Service Provider under this agreement effect and maintain public liability, product liability, motor vehicle insurance and professional indemnity insurance policies on terms similar to those applicable to the Service Provider’s policies under this agreement, or those Service Provider’s insurance policies are endorsed to include the subcontractor; and
  • any subcontractor engaged by the Service Provider under this agreement under this agreement, effects and maintains workers compensation and employers liability insurance on terms similar to those applicable to the Service Provider’s policies under this agreement, in respect of any person employed by that subcontractor in connection with the Services.

Notices from insurer

The Service Provider must ensure that each policy of insurance it effects under this agreement provides that:

  • whenever the insurer gives to, serves on or receives from the Service Provider or a Service Provider’s subcontractor,  an Insurance Notice, it must at the same time inform Beiersdorf in writing that the Insurance Notice has been given to, served on or received from the relevant entity; and
  • the insurer may not terminate the insurance policy without giving at least 10 Business Days’ prior written notice to Beiersdorf.

Service Provider to notify Beiersdorf of potential claims

The Service Provider must, as soon as practicable, notify Beiersdorf in writing of the occurrence of any event that may give rise to a claim under any policy of insurance effected or maintained under this agreement.

The Service Provider must keep Beiersdorf informed of all subsequent action and developments concerning the claim.

Other requirements

Each of the insurances required to be effected and maintained under this agreement must be in place before the commencement of the Services by the Service Provider.

Each of the insurances required to be effected and maintained under this clause must have an excess or deductible of an amount approved by Beiersdorf(acting reasonably).

Whenever a claim is made under any of the insurance policies required in accordance with this agreement, the Service Provider is liable for any excess or deductible payable as a consequence.

The Service Provider must pay any excess when at fault under any insurance policy taken out by Beiersdorf.

All Service Provider insurances referred to in this Clause 10 must not be varied to the detriment of Beiersdorf, cancelled or allowed to lapse unless the Supplier has received a written consent from Beiersdorf.

Evidence of insurance

Whenever so requested by Beiersdorf in writing, the Service Provider must within 10 Business Days provide, or procure provision of, evidence, to Beiersdorf’s reasonable satisfaction, that the Service Provider or its subcontractors (as applicable) has obtained and maintained insurance required in accordance with this agreement.

Failure of Service Provider to insure

If:

  • the Service Provider fails to:

(a) effect or to maintain any of the insurances required in accordance with this agreement;
(b) have any subcontractor effect or maintain any insurances required in accordance with this agreement; or
(c) provide evidence of insurance as required by this agreement;

  • Beiersdorf (acting reasonably) does not approve of the terms of an insurance policy, Beiersdorf may, but is not obliged to, at the Service Provider’s cost:
  • effect and maintain that insurance;
  • pay the necessary premiums; and
  • recover from the Service Provider the amount so paid as a debt due and payable.

This clause is in addition to, and does not affect or detract from, Beiersdorf’s other rights and entitlements under this agreement. 

[Options: Construction works, plant and equipment and Marine insurance]

11. Indemnity

If any wilful, negligent or wrongful act or omission in connection with or related to the performance of the Services under this agreement, or any default, by the Service Provider, its employees, agents or subcontractors , causes or contributes to any harm or to any loss:

  1. to Beiersdorf, the Service Provider indemnifies Beiersdorf fully in respect of all damages, loss, liability, costs, charges and expenses suffered or incurred by Beiersdorf as a result of that act or omission or default;
  2. to any person or entity other than Beiersdorf, and results in a claim being made against Beiersdorf by such person or entity, the Service Provider indemnifies Beiersdorf fully in respect of:

(A) any obligation on Beiersdorf to pay damages or satisfy any other liability in consequence of such a claim; and
(B) all costs, charges and expenses incurred by Beiersdorf in that respect.

Any rights in favour of Beiersdorf’s Related Bodies Corporate (including the right to indemnity) by reason of this clause, are rights held by Beiersdorf in trust for its Related Bodies Corporate.

The Service Provider agrees that:

  1. Beiersdorf’s comment or failure to comment upon, review or nonreview of, or rejection or nonrejection of the Services; or
  2. any payment by Beiersdorf,

will not relieve the Service Provider from any of its obligations or liabilities under this agreement.

The Service Provider’s liability to Beiersdorf under this clause will be reduced proportionately to the extent that any wilful, negligent or wrongful act or omission of, or any default by, Beiersdorf, its employees, agents or subcontractors (other than the Service Provider and its subcontractors), causes or contributes to any harm or to any loss.

For the purposes of this clause, the following terms have the following meanings:

(a) “Beiersdorf” includes Beiersdorf and the related bodies corporate of Beiersdorf;
(b) “claim” means any claim, demand, action or proceeding including, but not limited to:

  1. in contract (including but not limited to, under any indemnity);
  2. in tort (including but not limited to, misrepresentation or negligence); or
  3. under statute;

(c) “default” includes any breach or default under this agreement and any failure to comply with applicable laws, regulations or other requirements of a government agency;
(d) “harm” includes any death or injury;
(e) “loss” means any loss, cost, expense, damage or liability of any kind, and includes direct, indirect, incidental, special and consequential loss, loss of use, loss or revenue, loss of profits, loss of contracts, loss of production, increased cost of working capital and business interruption, and legal costs on a full indemnity basis 

If the Services are performed in New South Wales, Western Australia or Tasmania, then it is agreed that to the extent permitted by law the operation of Part 4 of the Civil Liability Act 2002 (NSW), Part 1F of the Civil Liability Act 2002 (WA) and Part 9A of the Civil Liability Act 2002 (Tas) are excluded in relation to all and any rights, obligations and liabilities under this agreement whether such rights, obligations or liabilities are sought to be enforced as a breach of agreement or a claim in tort or otherwise.

Beiersdorf is not under any circumstances liable for any consequential loss, or loss or damage suffered by the Service Provider, its subcontractors or any third party to any equipment, plant, tools, machinery or other property of the Service Provider, its subcontractors or any other third party used in the performance of the Services or under this agreement generally.

It is not necessary for Beiersdorf to incur expense or make any payment before enforcing a right of indemnity under this clause 11.

This clause survives termination or expiry of this agreement.

12. Early Termination

Beiersdorf may terminate this agreement by at least 14 days’ notice to the Service Provider if it determines in its absolute discretion that it no longer requires provision of the Services by the Service Provider.

A party may terminate this agreement with immediate effect by giving notice to the other party if:

  • the other party breaches any provision of this agreement and fails to remedy the breach within 7 days after receiving notice requiring it to do so;
  • the other party breaches a material provision of this agreement where that breach is not capable of remedy;
  • any event referred to in Clause 12.3 occurs to the other party. 

A party (‘Notifying Party’) must notify the other party immediately if:

  • there is any change in the ownership or control of the Notifying Party;
  • it disposes of the whole or any substantial part of its assets, operations or business;
  • it ceases to carry on business;
  • it ceases to be able to pay its debts as they become due;
  • any step is taken to enter into any arrangement between the Notifying Party and its creditors or to appoint a receiver, a receiver or manager, a trustee in bankruptcy, a liquidator, an administrator or similar person or if the Notifying Party is not a corporate entity, is declared bankrupt; and
  • the Notifying Party commits a criminal offence or is guilty of serious misconduct or wilful neglect. 

13. Effect of Termination

Termination of this agreement does not affect any accrued rights or remedies of either party. Upon termination of this agreement the Service Provider must:

  • immediately stop using and return any Contract Material, Confidential Information and any other property belonging to Beiersdorf in the Service Provider’s possession or control; and
  • vacate any premises of Beiersdorf occupied or utilised by the Service Provider at the date of termination. 

14. Resolutions of Disputes

A party claiming that a dispute has arisen out of this agreement (‘Dispute’) must notify the other party to the Dispute giving details of the Dispute.

During the 7 day period after a notice is given under Clause 14.1 (or longer period agreed in writing by the parties to the Dispute) (‘Initial Period’) each party must use its reasonable efforts to resolve the Dispute.

If the parties are unable to resolve the Dispute within the Initial Period, each party agrees that the Dispute must be referred for mediation, at the request of a party, to:

  • a mediator agreed on by the parties; or
  • if the parties are unable to agree on a mediator, a mediator nominated by the Australian Commercial Dispute Centre.

The role of any mediator is to assist in negotiating a resolution of the Dispute.  A mediator may not make a decision that is binding on a party unless that party has so agreed in writing.

Any information or documents disclosed by a party under this clause must be kept confidential and only used to attempt to resolve the Dispute.

Each party must bear its own costs of complying with this clause and the parties must bear equally the costs of any mediator engaged.

Nothing in this Clause 14 prevents a party from seeking urgent interlocutory relief from a court or exercising any of its rights under Clause 12

15. Force Majeure

If a Force Majeure Event affecting a party precludes that party (‘Precluded Party’) partially or wholly from complying with its obligations under this agreement then:

  • as soon as reasonably practicable after that Force Majeure Event arises, the Precluded Party must notify the other party of:

(i) the Force Majeure Event;
(i
i) which obligations the Precluded Party is precluded from performing (‘Affected Obligations’);
(i
ii) the extent of which the Force Majeure Event precludes the Precluded Party from performing the Affected Obligations (‘Precluded Extent’); and
(i
v) the expected duration of the delay arising directly out of the Force Majeure Event,

  • the Precluded Party’s obligations to perform the Affected Obligations will, to the Precluded Extent, be suspended for the duration of the actual delay arising out of the Force Majeure Event (‘Actual Delay’); and
  • the other party’s obligations to perform any obligations dependent on the Affected Obligations will be suspended until the Precluded Party resumes performance.

If the Actual Delay continues for more than 14 days, the other party may terminate this agreement immediately by giving 2 business days notice to the Precluded Party.

In the event of termination of this agreement in accordance with Clause 15.2, the provisions of Clause 13 apply.

16. Workplace Health and Safety

The Service Provider acknowledges that there is a direct relationship between the Service Providers ’s health, safety and environmental performance and the success of Beiersdorf’s business.

The Service Provider shall provide a proposed safety management plan to Beiersdorf’s representative (where requested)  8 weeks prior to the provision of any Services for the Beiersdorf representative’s approval.

The Beiersdorf representative will review the proposed safety management plan and provide the Service Provider with any request for amendments.

The Service Provider’s safety management plan must:

  • comply with the requirements set out in the Services including all specified safety requirements (Safety Requirements); and
  • include the policies and procedures which the Service Provider has put in place to ensure that the Service provider and the Service Provider’s personnel comply with all relevant obligations under any applicable  work health and safety legislation and any other obligations under the provisions of this agreement.

The approval of the Service Provider’s safety management plan by Beiersdorf’s representative (once approved, the Safety Management Plan) shall not create any obligation or liability on Beiersdorf in respect of the content and the implementation of the Service Provider’s Safety Management Plan, and nothing in this clause limits or removes any obligation or duty imposed on the Service Provider (whether under this agreement or otherwise) to secure or have regard to the health and safety of the Service Provider’s personnel. 

The Service provider shall ensure that all the Service Provider’s personnel are adequately trained and supervised to perform their duties in a safe manner.

Where any of the Service Personnel are required to have specific skills for the performance of the Services (Competencies), the induction and training requirements in relation to those Competencies must:

  • be included in the Service Provider’s Safety Management Plan;
  • to the extent they are not set out in the Service Provider’s Safety Management Plan, be confirmed with the Beiersdorf representative; and
  • be undertaken and kept up to date by the Service Provider’s Personnel .

The Service Provider shall ensure as far as reasonably practicable that each of the Service Provider’s Personnel are safe from injury and risk to health whilst undertaking then Services, and in particular, the Service Provider must provide:

  • a safe working environment;
  • safe systems of work;
  • plant, equipment and substances in a safe condition;
  • adequate facilities in compliance with applicable legislation for the welfare of all the Service Provider’s Personnel at any work place under the control and management of the Service Provider;
  • information, instruction, training and supervision reasonably necessary to ensure that all Service Provider’s Personnel are safe from injury and risks to health; and
  • monitoring of the health and welfare of all  the Service Provider’s Personnel in their employment to prevent work related injuries.

 All of the Service Provider’s plant and equipment whether utilised by the Service Provider and the Service Provider’s Personnel in providing the Services, supplied to Beiersdorf or hired to Beiersdorf shall meet the requirements of all relevant Laws, Australian Standards and approved codes of practice.

In addition to the rights set out in this clause, the Service Provider must permit Beiersdorf have access (provided reasonable notice is provided) to any of its documentation and data (including documents stores in electronic form) and to interview the Service Providers Personnel in connection with the Services, as necessary for Beiersdorf to verify, monitor and audit the  Service Provider’s compliance with:

  • the Service Provider’s Safety Management Plan; and
  • the Beiersdorf’s policies identified in clause 17. 

Notwithstanding any other term of this agreement, in the event of a breach of this clause 16 which in Beiersdorf’s opinion poses an immediate risk to health and safety under this clause Beiersdorf may:

  • require the Service provider, the Service Provider’s Personnel, and or any other person to leave the premises to which the Services relate or are being performed immediately; and
  • require the Service Provider, and any of the Service Provider’s Personnel to remove any material or substance from the premises at the Service Provider’s cost, and the Service Provider must, at its own cost, ensure each such request is immediately complied with and take all possible action to ensure the protection and safety of all works, Personnel, other individuals, and the environment.  
  • For the avoidance of doubt, compliance with this clause does not entitle the Service Provider to request a variation, to any extension of the date of practical completion or any other claim for costs or delay.

17. Compliance with Beiersdorf policies

During the term Service Provider must, and must ensure that the Service Provider’s Personnel, comply with each of the rules and policies of Beiersdorf as notified by Beiersdorf from time to time by notice to the Service Provider either verbally or in writing (provided that any verbal instructions will be confirmed as soon as reasonably practicable with a written notice)

18. General

The Service Provider must not assign or subcontract any or all of its obligations under this agreement without the prior written consent of Beiersdorf which may be given with or without conditions or withheld at Beiersdorf’s absolute discretion. The Service Provider remains liable to Beiersdorf for the performance of any obligations subcontracted in accordance with this Clause 18.1 and for ensuring that each subcontractor complies with all relevant provisions of this agreement.

This agreement constitutes the entire agreement of the parties as to its subject matter and supersedes and cancels all prior agreements, understandings and negotiations in connection with it.

Each party must:

  • use all reasonable efforts to do all things necessary or desirable (including executing any document) to give full effect to this agreement; and
  • refrain from doing anything that might hinder performance of this agreement.

Part or all of any of the provisions of this agreement that are illegal or unenforceable may be severed from this agreement and the remaining provisions of this agreement will continue in force.

This agreement may only be altered or varied by the prior written consent of each party.

The failure of a party at any time to require performance of any obligation under this agreement is not a waiver of that party’s right:

  • to insist on performance of, or claim damages for breach of, that obligation unless that party acknowledges in writing that the failure is a waiver; and
  • at any other time to require performance of that or any other obligation under this agreement.

This agreement shall be governed by and construed in accordance with the law for the time being in force in the State of New South Wales and the parties submit to the jurisdiction of the courts of that State.

This agreement may be executed in any number of counterparts that together will constitute one instrument. A party may execute this agreement by signing any counterpart.⦁ Each party must bear its own expenses in negotiating, executing and registering this agreement.

Beiersdorf may assign or otherwise deal with its rights and obligations under this agreement without the consent of any other party, and may disclose to any potential holder of any rights or obligations, any information relating to this agreement and any party to it.

Beiersdorf may, at any time without notice to the Service Provider, set off any amount that is or may become owing by Beiersdorf to the Service Provider against any amount owing by the Service Provider to Beiersdorf under this agreement.

19. Time of the Essence

Time is of the essence in this agreement.

20. Notices

All notices given pursuant to these terms and conditions must be in writing and will be properly served if delivered personally, posted or sent by facsimile or email to the other party at the address or facsimile number as notified in writing by the other party from time to time.  A notice sent by post shall be deemed to have been given on the 3rd working day after posting.  A notice sent by facsimile transmission shall be deemed to have been given upon confirmation by the sending machine of successful transmission of the total number of pages of the notice, if sent after 17.00hrs will be deemed received at 9.00hrs on the following working day.  A notice sent by email shall be deemed to have been given on confirmation by the recipient  that the message has been received.

Beiersdorf Australia Limited
4 Khartoum Road
North Ryde NSW 2113
Australia

Toll Free Australia: 1800 103 023
Free Phone New Zealand: 0800 696 483

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