Checklist for Reviewing Terms and Conditions of purchase of Goods and/or Services Less than $50,000
(ex GST)
Your starting point should always be to insist on the use of ECU’s standard terms and conditions templates when entering into
an agreement with a supplier / contractor / consultant for procurement of general goods and/or services. The supplier /
contractor / consultant will respond by either:
a)
agreeing to ECU’s standard terms and conditions, without requiring amendment, in which case the agreement can be
signed by ECU’s relevant delegated authority; or
b)
requiring amendments to ECU’s standard terms and conditions, in which case you will need to review the high-level
guidelines below to assist you in determining whether those amendments are acceptable to ECU; or
c)
insisting that their own set of terms and conditions are used instead of ECU’s, in which case you will need to:
a.
review the high-level guidelines below to assist you in determining whether those terms and conditions are
acceptable to ECU; and
b.
if the supplier/contractor/consultant will be working on ECU’s campus, insist that the
supplier/contractor/consultant sign a copy of the attached “Special Conditions” to ensure that ECU-specific
requirements are met.
Special Conditions Procurement.docx
If you have any questions about this process, please contact Strategic Procurement.
If you require legal advice, please contract Office of Legal Services.
It is important to note that for contracts valued $50,000 (ex GST) and above, any variations to ECU’s standard terms and
conditions, or any alternative set of terms and conditions, must be reviewed by the Office of Legal Services.
Checklist
Contract Clause Issues
Some Actions to Consider
Legal Names and Address
! It is in the best interest of both parties
 Check ECU information:
to get the names and information
correct for the contract.
Scope of Work
! Most claims and disputes stem from
poorly written scope of work.
Terms of Payment
! Early payment or down payment will
increase the procurement risk to the
University.
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Commercial in Confidence – For Internal Use Only
EDITH COWAN UNIVERSITY (ABN 54 361 485 361), a body corporate
established under the Edith Cowan University Act 1984 (WA), of 270 Joondalup
Drive, Joondalup, Perth, Western Australia 6027 (“ECU”) - (or sometimes
called (“the University”)).
Confirm the other party’s details by ABN Lookup or ASIC search.
Define the scope of work (services) and/or description of the goods (detailed,
comprehensive and thoroughly written)
Define what work and/or goods not included in scope.
Define who will perform the work.
Define the deliverables and timeline and consequences of not meeting the
deadlines.
Check the payment term - The University has a standard payment term of 30
days from the date of the invoice.
Confirm that the amount, timing and method of payment clearly setup and
acceptable.
Negotiate down payment or early payment if imposed by suppliers.
Key Contact
(if required)
Contract Owner
Contract Owner
S. Procurement
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Insurance
! Inadequate suppliers’ insurance will
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change the University’s risk profile and
effectiveness, resulting in reduced
contractual security for the University.
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Indemnity and Caps on Liability
! The supplier must take the risk and
therefore must indemnify ECU, not the
other way round. Failure to do so may
impact the insurance cover available to
the University in the event of a contract
breach claim.
 ECU must not agree to indemnify the supplier/contractor/consultant. A mutual
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Disputes
! Litigation is an expensive and time
consuming process that would add
little value to both parties where
negotiation and mediation are the
preferred methods in disputes
resolution.
Intellectual Property
! Absent of the IP clause may result in a
contractor or consultant owing the
intellectual property that the contractor
or consultant creates, not the
University.
Warranty
! Absent of a warranty clause would
indemnity clause is suitable.
The supplier/contractor/consultant must indemnify ECU for any costs or losses
that ECU incurs as a result of: (a) any action brought against ECU arising from
the contract or (b) the supplier/contractor/consultant’s breach of the contract or
its wilful or unlawful act or omission.
ECU must not agree to cap the supplier/contractor/consultant’s liability, unless
prior approval is sought from RASC.
Confirm the venue and choice of law clause - governed by the laws of the State
of Western Australia.
 Ensure that the disputes clause should require the parties to first try to
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RASC
OLS
RASC
OLS
negotiate a resolution before initiating legal proceedings.
Do not agree to a disputes clause that requires the parties to resolve by going
to court (litigation).
 If consultancy services are being provided to ECU, then ECU must own all
intellectual property in the material created, developed or produced for ECU
under the contract.
For the provision of any other goods and services, ensure that ECU has any
necessary licences to use the goods or services.
 Make sure the warranty period is well defined. 12 months warranty from the
Contract Owner
OLS
Contract Owner
date of delivery should be the minimum – if relevant to the service and goods
acquired.
make it difficult for the University to
submit a claim in the event of a defect.
Signature and Record
Management
! Unsigned/missing contracts are difficult
Check that the suppliers have appropriate insurers, regulated by Australian
Prudential Regulation Authority (APRA), for the following amount(s):
o Public Liability - $10 million;
o Professional Indemnity - $ 5 million;
o Workers Compensation – Common Law limit of $50 million; and
o If relevant to the contract, Motor Vehicle Third Party Liability ($20 million)
and Compulsory Third Party (motor vehicles) insurance.
Check with RASC if the suppliers do not meet the above requirements.
 Obtain the relevant signatures according to the Financial Delegation Authority
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to enforce.
Contract Owner
of the University.
Obtain counterparty’s signature and append approved contract to Purchase
Requisition in Oracle. Follow the Record Management policy to store the
approved contract/documentation.
Remember, any agreements need to be documented as part of the contract.
Commercial in Confidence – For Internal Use Only
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