DTA Proximity Contract Template… · Web viewit has the power, authority, capacity, and that any...
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Digital Sourcing Contract – Hardware Acquisition and Support Commonwealth of Australia as represented by [ Insert name of buyer] (‘buyer’) and [ Insert name of seller] (‘seller’) [ Insert Name of Contract] Version: Final Date Created: 6 August 2018
Transcript of DTA Proximity Contract Template… · Web viewit has the power, authority, capacity, and that any...
Digital Sourcing Contract – Hardware Acquisition and Support
Commonwealth of Australia as represented by [Insert name of buyer]
(‘buyer’)
and
[Insert name of seller]
(‘seller’)
[Insert Name of Contract]
Version: FinalDate Created: 6 August 2018
Contents
Contract Terms.......................................................................................................................1
Contract Framework and Governance..................................................................................2
1. Purpose, interpretation and technical contract issues.............................................2
1.1 Defined terms....................................................................................................................2
1.2 Interpretation..................................................................................................................... 2
1.3 Cooperation and collaboration..........................................................................................3
1.4 Access by other agencies.................................................................................................4
1.5 Execution and performance warranty................................................................................4
1.6 Additional warranty if seller is a trustee.............................................................................4
1.7 No agency......................................................................................................................... 5
1.8 Assignment and novation..................................................................................................5
1.9 Severability....................................................................................................................... 5
1.10 Entire agreement...........................................................................................................6
1.11 Waiver........................................................................................................................... 6
1.12 Governing law and jurisdiction.......................................................................................6
1.13 Counterparts.................................................................................................................. 6
2. Contract term................................................................................................................6
3. Contract governance....................................................................................................7
3.1 Contract representatives...................................................................................................7
3.2 Notices.............................................................................................................................. 7
3.3 Reporting by seller............................................................................................................8
3.4 Risk management.............................................................................................................9
3.5 Announcements................................................................................................................9
3.6 Access and audit (including auditing against standards)...................................................9
3.7 Freedom of Information...................................................................................................11
3.8 Conflicts of interest..........................................................................................................12
3.9 Problem resolution..........................................................................................................12
3.10 Compliance with laws..................................................................................................14
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4. Personnel....................................................................................................................14
4.1 General personnel requirements.....................................................................................14
4.2 Specified personnel.........................................................................................................15
4.3 Subcontracting................................................................................................................16
4.4 Conduct of personnel......................................................................................................18
4.5 Security clearances.........................................................................................................18
4.6 Confidentiality deeds.......................................................................................................19
4.7 Work health and safety...................................................................................................19
4.8 Workplace gender equity................................................................................................20
4.9 Indigenous procurement policy.......................................................................................21
Delivery and Payment...........................................................................................................21
5. Delivery of products...................................................................................................21
5.1 Hardware supply.............................................................................................................21
6. Delivery of services....................................................................................................23
6.1 Installation services.........................................................................................................23
6.2 Hardware support services.............................................................................................23
6.3 Training services.............................................................................................................27
7. General delivery requirements and warranties.......................................................28
7.1 Complying with requirements and timeframes................................................................28
7.2 Documentation................................................................................................................29
7.3 Knowledge transfer and other assistance.......................................................................30
7.4 General warranties..........................................................................................................30
7.5 Specific product warranties.............................................................................................31
7.6 Specific service warranties..............................................................................................31
7.7 Third party warranties.....................................................................................................31
7.8 Harmful code................................................................................................................... 32
8. Acceptance..................................................................................................................33
8.1 Acceptance process........................................................................................................33
8.2 Acceptance test plan.......................................................................................................34
9. Intellectual property and moral rights......................................................................36
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9.1 Overview......................................................................................................................... 36
9.2 Intellectual property rights in contract material................................................................36
9.3 IP warranty...................................................................................................................... 37
9.4 Infringement claims.........................................................................................................37
9.5 Moral rights..................................................................................................................... 38
10. Buyer assistance to seller.........................................................................................38
10.1 Access to buyer material.............................................................................................38
10.2 Use of buyer facilities..................................................................................................38
10.3 Access to buyer facilities.............................................................................................39
10.4 Site specification and preparation................................................................................39
11. Charges and payment................................................................................................40
11.1 Charges....................................................................................................................... 40
11.2 Invoices....................................................................................................................... 40
11.3 Payment...................................................................................................................... 40
11.4 Service Rebates..........................................................................................................41
11.5 GST and other taxes...................................................................................................41
11.6 Maximum charges payable..........................................................................................42
11.7 Late payment of invoices.............................................................................................42
11.8 Right to recover money...............................................................................................43
Contract Management and Performance............................................................................44
12. Information management...........................................................................................44
12.1 Privacy......................................................................................................................... 44
12.2 Confidentiality..............................................................................................................45
12.3 Buyer’s data................................................................................................................. 46
12.4 Records....................................................................................................................... 48
12.5 Transferring data off-shore..........................................................................................48
13. Security........................................................................................................................49
13.1 General requirements..................................................................................................49
13.2 Physical security..........................................................................................................50
13.3 Cyber security..............................................................................................................50
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13.4 Information security.....................................................................................................51
14. Liability........................................................................................................................51
14.1 Liability........................................................................................................................ 51
14.2 Limitations of liability....................................................................................................52
14.3 Indemnities.................................................................................................................. 54
14.4 Insurance..................................................................................................................... 56
15. Management of performance issues........................................................................57
15.1 Defects........................................................................................................................ 57
16. Changing and ending the contract...........................................................................58
16.1 Variation...................................................................................................................... 58
16.2 Buyer directions...........................................................................................................58
16.3 Pricing contract variations...........................................................................................58
16.4 Termination and reduction for convenience.................................................................59
16.5 Termination by buyer for default..................................................................................60
16.6 Termination by seller for default..................................................................................61
16.7 Consequences of termination......................................................................................63
16.8 General termination assistance...................................................................................63
Schedule A – Glossary......................................................................................................66
Schedule B – Contract Details..........................................................................................74
Schedule C – Requirements.............................................................................................78
Schedule D – Form of Acceptance Test Plan.................................................................82
Schedule E – Form of Acceptance Certificate................................................................84
Schedule F – Charges.......................................................................................................85
Schedule G – Form of Change Order...............................................................................89
Schedule H – Form of Agency Order...............................................................................91
Schedule I – Form of Deed of Confidentiality.................................................................92
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Contract TermsDate
buyer
Name: The Commonwealth of Australia represented by [insert agency name]
ABN: [insert buyer’s ABN]
Address: [insert buyer’s address]
Short form name: buyer
seller
Name: [insert seller’s full legal name]
ABN: [insert seller’s ABN]
Address: [insert seller’s address]
Short form name: seller
buyer and seller agree as follows.
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Contract Framework and Governance
1. Purpose, interpretation and technical contract issues
1.1 Defined terms
1.1.1 Words in bold italics have the meaning given in Schedule A.
1.2 Interpretation
1.2.1 In this contract, unless otherwise required by the context:
a) words importing any gender include other genders;
b) words in the singular include the plural and vice versa;
c) where a word or phrase is given a particular meaning in Schedule A,
other parts of speech and grammatical forms of that word or phrase
have a corresponding meaning;
d) a reference to a clause or a Schedule is to a clause of, or schedule to,
this contract;
e) a reference to this contract includes all Schedules and is to the
contract as amended;
f) if this contract requires an obligation to be performed on a day that is
not a business day, it may be performed on the next day that is a
business day;
g) notes in the contract form part of the contract;
h) “person” includes an individual, agency, a company, a partnership and
an unincorporated organisation;
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i) “and/or” means either or both;
j) “relating to” and “relates to” are intended to have a broad meaning and
include “in connection with” and “arising out of”;
k) ‘document” includes an electronic record; and
l) “$” means Australian dollars.
1.2.2 If there is a direct inconsistency between the documents forming this
contract, a clause or Schedule higher in the following list prevails over a
clause or Schedule lower in the list to the extent of the inconsistency:
a) Schedule B;
b) clauses 1 to 16 and Schedule A;
c) Schedule C, Schedule D or Schedule F;
d) other Schedules.
1.3 Cooperation and collaboration
1.3.1 When performing their respective obligations under this contract, the
parties must act collaboratively and cooperatively with each other to
achieve buyer’s objectives and endeavour to solve any issues or problems
as quickly and as cost effectively as possible.
1.3.2 When exercising any discretion or power under this contract, a party must
act honestly, reasonably and in good faith. The obligation to act in good faith
does not prevent a party from acting to further its legitimate commercial
interests.
1.3.3 seller must work collaboratively and cooperatively with other organisations
providing products or services to buyer, including by sharing any relevant
information that is not confidential information.
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1.4 Access by other agencies
1.4.1 This clause 1.4 applies unless Item 1 of Schedule B provides that it does
not apply.
1.4.2 An agency (other than buyer) may seek to purchase products and/or
services from seller on terms substantially the same as this contract, by
sending an order substantially in the form of Schedule H to seller’s representative.
1.4.3 If an agency provides an order to seller under this clause 1.4, seller must
enter into a separate contract with the agency to supply the relevant
products and/or services on substantially the same terms as this contract
(including in relation to charges) unless otherwise agreed with the agency.
1.5 Execution and performance warranty
1.5.1 seller warrants that:
a) it has the power, authority, capacity, and that any necessary
contractual arrangements are in place, to execute this contract and to
lawfully perform and comply with it; and
b) all actions necessary for the authorisation, execution and performance
of this contract have been taken.
1.6 Additional warranty if seller is a trustee
1.6.1 This clause 1.6 only applies if Item 2 of Schedule B states that seller is
entering into this contract as the trustee of a trust.
1.6.2 seller enters into this contract both in its personal capacity and as trustee of
the trust named at Item 2 of Schedule B and must not resign as trustee
during the term.
1.6.3 seller warrants to buyer that:
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a) seller is the sole trustee of the trust named at Item 2 of Schedule B
and is authorised under the trust deed to enter into and perform this
contract;
b) seller entering into and performing this contract is not inconsistent with
the trust deed or any principle of equity; and
c) seller has a full right of indemnity from trust assets in relation to any
liability relating to this contract.
1.7 No agency
1.7.1 Other than as expressly provided in this contract, seller is not the agent of
buyer and must not represent itself as such.
1.7.2 Item 3 of Schedule B may authorise seller to purchase products or services
on behalf of buyer. If the Item includes such an authorisation, seller must
comply with any conditions set out in the Item.
1.8 Assignment and novation
1.8.1 seller may not assign the benefit of this contract, or take any action to
novate this contract or assign its obligations under it, without the prior
approval of buyer. buyer must not unreasonably withhold its consent to a
proposed assignment by seller of the benefits of this contract.
1.9 Severability
1.9.1 If a provision of this contract is unenforceable for any reason, the provision
may be severed from the contract and the remainder of the contract remains
enforceable.
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1.10 Entire agreement
1.10.1 This contract documents the entire agreement between the parties in
relation to the subject matter and supersedes any previous proposals,
representations or discussions.
1.11 Waiver
1.11.1 A delay by a party in exercising a right under this contract does not operate
as a waiver of that right or any other right under this contract (unless
otherwise expressly provided in this contract).
1.12 Governing law and jurisdiction
1.12.1 This contract is governed by the laws of the Australian Capital Territory and
the parties irrevocably submit to the non-exclusive jurisdiction of the courts
of that Territory for any matters relating to this contract.
1.13 Counterparts
1.13.1 This contract may be executed in any number of counterparts. All
counterparts constitute the same contract.
2. Contract term2.1.1 The term of this contract commences on the commencement date and
expires on the end date, unless terminated under clauses 16.4 to 16.6
(inclusive).
2.1.2 Subject to clause 2.1.3, buyer may notify seller at any time during the
term of this contract that the term is extended until the date specified in the
notice. buyer may give more than one notice under this clause 2.1.2.
2.1.3 The total length of all extensions under clause 2.1.2 may not exceed the
option period. If buyer issues a notice under clause 2.1.2 that is
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inconsistent with this clause 2.1.3, the notice is taken to extend the contract
for the longest period that is consistent with this clause 2.1.3.
3. Contract governance
3.1 Contract representatives
3.1.1 The contract representative for each party has authority to represent the
party for all matters relating to this contract, including:
a) sending and receiving notices and day-to-day communications; and
b) exercising a party’s rights under the contract.
3.1.2 A party may change its contract representative and the contact details for
its contract representative by notice, without the need for a variation
under clause 16.1.
3.2 Notices
3.2.1 A communication from one party to the other party relating to this contract
must be:
a) in writing, in hard-copy or by email;
b) (in the case of a hard-copy communication) signed by, or sent by (in
the case of an email communication), the sending party’s contract representative;
c) addressed to the other party’s contract representative;
d) in the case of a hard-copy communication, sent by express mail or
courier or hand-delivered to the receiving party’s contract representative address in Item 7 of Schedule B (or, if the address has
been changed under clause 3.1.2, that changed address); and
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e) in the case of an email communication, sent by email to the receiving
party’s contract representative address in Item 7 of Schedule B (or,
if the email address has been changed under clause 3.1.2, that
changed email address).
3.2.2 A notice given in hard-copy is taken to be received when it is delivered by
hand or courier or, if it is posted, 3 business days after the date of posting
(if posted in Australia) or 10 business days after the date of posting (if
posted outside Australia).
3.2.3 A notice given by email is taken to be received when it reaches the
receiving party’s email server, unless the sending party receives an error
message indicating that the receiving party’s contract representative has
not received the message.
3.3 Reporting by seller
3.3.1 seller must notify buyer within 3 business days if any of the following
occur:
a) seller is unable to pay all its debts when they become due;
b) if seller is a company, seller is under any form of external
administrations under the Corporations Act 2001 (Cth) or an equivalent
appointment is made under other legislation;
c) if seller is a partnership, the partnership is dissolved;
d) there is a material change to seller’s business (including as a result of
a restructure, divestiture of business or sale of shares) that adversely
affects the capacity of seller to perform its obligations under this
contract;
e) seller or any of seller’s personnel is convicted of a criminal offence,
investigated by a government agency for alleged fraudulent behaviour,
is subject to any claim or suit for alleged fraudulent behaviour or
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makes an admission of fraudulent behaviour (whether or not the
fraudulent behaviour relates to this contract).
3.4 Risk management
3.4.1 seller must identify and manage any risks and issues associated with the
performance of its obligations under this contract, including in relation to the
introduction of harmful code into buyer’s systems, the risk of loss or
corruption of buyer’s data and of delay.
3.5 Announcements
3.5.1 Subject to clause 3.5.2 and 3.5.3, except as required by law or the rules of
a securities exchange, or with the consent of buyer in a notice, seller must
not make any public announcement about the award, performance or
termination of this contract.
3.5.2 If buyer or another agency makes a public announcement relating to this
contract, seller may subsequently make a public announcement on the
same subject matter in a similar level of detail.
3.5.3 Unless Item 8 of Schedule B provides otherwise, seller may include
buyer’s name and a short factual description of this contract in a list of
reference projects, proposals to third parties and its annual report.
3.6 Access and audit (including auditing against standards)
3.6.1 Subject to this clause 3.6, seller must, on buyer’s request in a notice,
provide reasonable access to seller’s premises, seller’s records and/or seller’s personnel to enable buyer and/or an accountability body to
audit seller in relation to seller’s compliance with its obligations under this
contract and/or in relation to the accuracy of any information provided by
seller to buyer in relation to this contract.
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3.6.2 buyer may notify seller under this clause 3.6.2 if it or an accountability body wishes to audit seller in relation to this contract. In the notice, buyer must set out:
a) the scope of the audit;
b) the name and title of the individuals who will conduct the audit;
c) the access to seller’s premises, seller’s records and/or seller’s personnel required as part of the audit; and
d) the proposed timing of the audit.
3.6.3 Subject to clause 3.6.4, if buyer gives seller a notice under clause 3.6.2,
within 5 business days, seller must notify buyer that:
a) it agrees to the proposed arrangements for the audit (in which case it
must then provide the access requested in buyer’s notice under
clause 3.6.2); or
b) it agrees to the proposed arrangements for the audit other than in
relation to timing (in which case seller must, acting reasonably,
nominate alternative timing for the audit in a notice to buyer).
3.6.4 If seller gives buyer a notice under clause 3.6.3b), buyer may either:
a) notify seller that it agrees with seller’s proposed timing (in which
case seller must then provide the access requested in buyer’s notice
under clause 3.6.2, but with the agreed revised timing); or
b) propose alternative timing (in which case buyer must give seller a
revised notice under clause 3.6.2).
3.6.5 seller is not obliged under this clause 3.6 to provide buyer or an
accountability body with access to the confidential information of
seller’s other customers or other confidential information (including
costing information) that does not relate to the audit.
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3.6.6 If an accountability body is proposing to undertake an audit under this
clause 3.6, and the individuals from the accountability body are not bound
by statutory confidentiality obligations in relation to the audit, at seller’s
request in a notice, the individuals from the accountability body must
provide reasonable confidentiality undertakings to seller in relation to
seller’s confidential information accessed during the audit. However,
these confidentiality undertakings must permit the individuals to assist in
carrying out the functions of the accountability body (including, where
applicable, the publication of reports) and to provide information to buyer in
relation to seller’s compliance with its obligations under this contract.
3.6.7 When conducting an audit under this clause 3.6, buyer or an
accountability body must take reasonable steps to minimise disruption to
seller’s business operations.
3.6.8 The parties must meet their own costs of complying with this clause 3.6.
3.6.9 This clause survives the termination or expiry of this contract for a period of
2 years.
3.7 Freedom of Information
3.7.1 This clause 3.7 applies if seller provides services under this contract to a
person who is not an agency.
3.7.2 If buyer receives a request for a document under the Freedom of Information Act 1982 (Cth) and:
a) the document was created by or is in the possession of seller (including seller’s personnel); and
b) the document relates to, or was created in, the performance of this
contract (other than the entry into this contract),
then, if requested to do so by buyer in a notice, seller must provide a copy
of the document to buyer at no additional cost to buyer.
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3.8 Conflicts of interest
3.8.1 seller warrants to buyer on the commencement of this contract and
continuously during the term that neither it nor any seller’s personnel have
a conflict of interest in relation to any aspect of the performance of this
contract that has not been disclosed to buyer in a notice.
3.8.2 If seller notifies buyer of a conflict of interest in relation to the
performance of this contract, seller must comply with any reasonable
direction given by buyer in a notice to manage or mitigate that conflict of interest at no additional cost to buyer.
3.9 Problem resolution
3.9.1 If a party considers that an issue has arisen, it must notify the other party
within 5 business days describing the issue and explaining its position in
relation to the issue.
3.9.2 If a party receives a notice under clause 3.9.1, within 5 business days the
party must notify the other party explaining its position in relation to the
issue.
3.9.3 If a notice has been given under clause 3.9.2 and a party considers that
the issue remains unresolved, within 5 business days that party must
notify the other party that a meeting is required to discuss and attempt to
resolve the issue.
3.9.4 If a notice is given under clause 3.9.3 in relation to an issue, both parties
must ensure that their contract representatives meet to discuss and
genuinely attempt to resolve the issue within 5 business days. The time
and location of such meeting is to be agreed between the contract representatives but, failing agreement, the meeting will be at 11.00am on
the fifth business day after the notice is given under clause 3.9.3, at
buyer’s address.
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3.9.5 If either party considers that an issue discussed at a meeting held under
clause 3.9.4 remains unresolved after the meeting, that party may give a
notice to the other party requiring the issue to be discussed by the senior
executives of the parties.
3.9.6 If a notice is given under clause 3.9.5, each party must ensure that one or
more of its senior executives who have responsibilities in relation to this
contract meet with senior executives of the other party who have
responsibilities in relation to this contract within 15 business days of the
notice (either as part of a scheduled governance meeting or at a specially
convened meeting) to discuss and genuinely attempt to resolve the issue.
The time and location of such meeting is to be agreed between the senior
executives of the parties but, failing agreement, the meeting will be at
11.00am on the fifteenth business day after the notice is given under
clause 3.9.5, at buyer’s address.
3.9.7 If either party considers that an issue discussed at a meeting held under
clause 3.9.6 remains unresolved after that meeting, or that the other party
has not complied with the process in clauses 3.9.1 to clause 3.9.6 in relation
to an issue, that party may notify the other party that the issue has
become a dispute.
3.9.8 If Item 9 of Schedule B provides for any dispute to be referred to mediation,
if a party gives a notice under clause 3.9.7 in relation to a dispute, the
parties must refer the dispute to mediation in accordance with the process
set out in the Item.
3.9.9 If Item 10 of Schedule B provides for a category of disputes to be referred
to expert determination, if a party gives a notice under clause 3.9.7 in
relation to a dispute within that category, the parties must refer the
dispute to expert determination in accordance with the process set out in
the Item.
3.9.10 If both clause 3.9.8 and clause 3.9.9 apply to a dispute, the dispute must
be referred to mediation before the dispute is referred to expert
determination.
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3.9.11 If neither clause 3.9.8 nor clause 3.9.9 applies to a dispute, the parties
must give genuine good faith consideration to whether mediation or expert
determination would be a suitable mechanism to attempt to resolve the
dispute. If both parties agree to use mediation or expert determination in
relation to a dispute, the parties must agree a suitable process and then
follow that process in relation to the dispute.
3.9.12 Neither party may commence legal proceedings in relation to an issue or a
dispute until all applicable requirements in clause 3.9.1 to clause 3.9.11
have been complied with in relation to the issue or dispute. However, this
clause 3.9.12 does not prevent a party seeking urgent interlocutory relief.
3.9.13 The parties must continue to perform this contract (including, in the case of
buyer, paying any undisputed charges that are due under this contract)
while the parties are complying with the requirements in clause 3.9.1 to
clause 3.9.11.
3.9.14 The parties must meet their own costs of complying with the requirements
in clause 3.9.1 to clause 3.9.11.
3.10 Compliance with laws
3.10.1 seller must comply with law when performing its obligations under this
contract.
4. Personnel
4.1 General personnel requirements
4.1.1 seller must ensure that all of seller’s personnel:
a) are appropriately skilled and qualified to provide the services required
to be provided under this contract;
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b) for seller’s personnel providing services in Australia or undertaking
any activity relating to this contract in Australia, have the right to work
in Australia under law; and
c) are required by employment contracts or other legally binding
arrangements to maintain the confidentiality of buyer’s confidential information.
4.2 Specified personnel
4.2.1 seller must take all measures within its reasonable control to ensure that
specified personnel are available on a consistent basis during the term to
provide services under this contract in the role specified in Item 11 of
Schedule B.
4.2.2 seller must immediately notify buyer if, during the term, any specified personnel become:
a) permanently unavailable to provide services under this contract (for
example, because of illness or resignation); or
b) unavailable to provide services under this contract during the term for
a period of more than the specified personnel unavailability period.
4.2.3 buyer may direct seller in a notice to replace any specified personnel who:
a) in buyer’s opinion are not a fit and proper person to provide services
to buyer;
b) in buyer’s opinion (acting reasonably), do not meet the requirements
for seller’s personnel in clause 4.1.1;
c) do not have a suitable security clearance or other clearance required
under clause 4.5;
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d) do not sign and deliver a confidentiality deed that is required under
clause 4.6; and/or
e) have acted, or have failed to act, in a manner required under clause
4.4.
4.2.4 Within 10 business days of giving buyer a notice under clause 4.2.2 or
receiving a notice from buyer under clause 4.2.3, seller must notify buyer proposing replacement specified personnel that are at least as
experienced and qualified to provide services under this contract as the
specified personnel being replaced.
4.2.5 If buyer consents to the replacement specified personnel proposed by
seller under clause 4.2.4, it will notify seller of its consent and Item 11 of
Schedule B is taken to be amended by substituting the names of the
replacement specified personnel for the replaced specified personnel, without any requirement for a formal contract variation under clause 16.1.
4.2.6 If buyer (acting reasonably) does not consent to the replacement specified personnel proposed by seller under clause 4.2.4, it will notify seller of this
decision and seller must then notify buyer within 10 business days
proposing alternative replacement specified personnel that are at least as
experienced and qualified to provide services under this contract as the
specified personnel being replaced. Clause 4.2.5 and this clause 4.2.6
apply to seller’s nomination of alternative replacement specified personnel.
4.3 Subcontracting
4.3.1 seller must ensure that the subcontractors (if any) named in Item 15 of
Schedule B have the role specified in the Item in relation to the delivery of
products and services. If seller wishes to remove or replace any such
subcontractor, it must notify buyer and seek buyer’s prior consent. The
notice seeking buyer’s consent must explain the circumstances of the
proposed removal or replacement.
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4.3.2 Subject to this clause 4.3, seller must not enter a subcontract without the
prior consent of buyer in a notice. When seeking consent, seller must
provide full details of the proposed subcontractor, including whether it is an
Indigenous enterprise.
4.3.3 buyer must not unreasonably withhold its consent under clause 4.3.1 or
4.3.2.
4.3.4 seller must not enter into a subcontract with a person that:
a) has been named by the Director of the Workplace Gender Equality
Agency as an employer who is not complying with the WGEA; and/or
b) has a judicial decision against it (not including decisions under appeal)
relating to employee entitlements in respect of which it has not paid the
judgement amount.
4.3.5 seller must not enter a subcontract on terms that would permit the subcontractor to do, or fail to do, something that, if done or not done by
seller, would be a breach of this contract. seller must also ensure that each
subcontract can be terminated for convenience on similar terms to this
contract. If requested by buyer in a notice, seller must provide buyer with
a copy of a subcontract to enable buyer to verify that seller has complied
with this clause 4.3.5.
4.3.6 seller warrants that it has informed all subcontractors that their
participation in performing this contract may be publicly disclosed.
4.3.7 seller is responsible for all acts or omissions of subcontractors, seller group companies and individual contractors in relation to this contract
(even if the subcontractor has been named in Item 15 of Schedule B or if
buyer has consented to the subcontractor).
4.3.8 buyer (acting reasonably) may by notice to seller direct the removal or
replacement of any subcontractor. seller must comply with a direction
under this clause 4.3.8.
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4.4 Conduct of personnel
4.4.1 When seller’s personnel are on or near buyer’s premises in relation to
the performance of this contract, seller must:
a) ensure that those personnel comply with all policies and procedures
applicable to buyer’s employees and/or contractors that buyer has
notified to seller;
b) direct those personnel to demonstrate behaviour consistent with the
Australian Public Service Code of Conduct; and
c) ensure that those personnel comply with any reasonable direction
given by buyer in relation to conduct, health and safety, or security.
4.4.2 When seller’s personnel are accessing buyer’s systems, using any of
buyer’s equipment or accessing buyer’s confidential information, seller must ensure that those personnel comply with all policies and procedures
applicable to buyer’s employees and/or contractors that buyer has notified
to seller.
4.5 Security clearances
4.5.1 If required by Item 18 of Schedule B, seller must ensure that seller’s personnel (or classes of seller’s personnel specified in that Item):
a) maintain security clearances specified in that Item throughout the
term; and/or
b) successfully undertake other vetting or suitability screening processes
that are specified in that Item.
4.5.2 buyer may notify seller that seller’s personnel (or classes of seller’s personnel) must maintain security clearances (at a level specified by buyer in the notice) before accessing any buyer’s confidential information. If
buyer gives such a notice, seller must ensure that any of seller’s
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personnel without the required security clearance do not access buyer’s confidential information.
4.5.3 buyer may notify seller that seller’s personnel (or classes of seller’s personnel) must undertake vetting or suitability screening processes
normally required by buyer for its employees and/or contractors. If buyer gives such a notice, seller must ensure that any of seller’s personnel without the required security clearance do not access buyer’s confidential information.
4.5.4 seller must use its best endeavours to ensure that all of seller’s personnel who have a security clearance promptly advise the agency granting the
clearance of any change to their personal circumstances that may be
relevant to the grant of the security clearance.
4.5.5 seller is responsible for the costs of seller’s personnel obtaining and
maintaining security clearances and undertaking other vetting or suitability
screening processes required under this clause 4.5.
4.6 Confidentiality deeds
4.6.1 If requested by buyer in a notice, seller must ensure that all of seller’s personnel who have or may have access to buyer’s confidential information execute and deliver to buyer a confidentiality deed
substantially in the form of (at no additional cost to buyer).
4.6.2 If buyer has made a request under clause 4.6.1, seller must ensure that
any of seller’s personnel who have not executed and delivered a deed in
accordance with clause 4.6.1 do not have any access to buyer’s confidential information.
4.7 Work health and safety
4.7.1 When delivering products and services under this contract, seller must:
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a) ensure that the delivery is done in a manner that does not pose any
avoidable health or safety risk to seller’s personnel, buyer’s personnel or any other person;
b) identify all reasonably foreseeable hazards that could give rise to a risk
to health or safety;
c) ensure that risk assessments are conducted for risks to the health and
safety to seller’s personnel, buyer’s personnel and any other
person;
d) ensure that control measures are in place to mitigate identified risks to
health or safety;
e) consult, cooperate and coordinate activities in relation to health and
safety matters with other persons who have a health and safety duty in
relation to the activities; and
f) notify buyer (providing full details) and the relevant regulator if a
“notifiable event” (within the meaning of that term in the Work Health and Safety Act 2011 (Cth) or a corresponding State or Territory law)
occurs.
4.8 Workplace gender equity
4.8.1 This clause 4.8 applies if seller is or becomes a “relevant employer” within
the meaning of that term in WGEA.
4.8.2 seller must comply with its obligations under WGEA.
4.8.3 If seller becomes non-compliant with WGEA, it must:
a) immediately notify buyer of the non-compliance with WGEA;
b) become compliant with WGEA within 40 business days from the date
of non-compliance; and
c) notify buyer when it becomes compliant with WGEA.
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4.8.4 On each anniversary of the commencement date during the term, seller must provide a notice to buyer that includes a letter from the Workplace
Gender Equality Agency confirming that seller is currently compliant with
WGEA.
4.9 Indigenous procurement policy
4.9.1 seller notes that it is Australian Government policy to stimulate Indigenous
entrepreneurship and business development, providing Indigenous
Australians with more opportunities to participate in the economy.
4.9.2 When delivering products and services under this contract, seller must
use reasonable endeavours to increase its purchasing from Indigenous enterprises (including by entering into subcontracts with Indigenous enterprises and using Indigenous enterprises in seller’s supply chain)
and its employment of Indigenous Australians.
4.9.3 If requested by buyer in a notice, seller must provide a written report
(including appropriate evidence) to buyer demonstrating seller’s
compliance with this clause 4.9 at no additional cost to buyer.
Delivery and Payment
5. Delivery of productsNote: This contract is not suitable for and does not apply in relation to the leasing of hardware.
5.1 Hardware supply
5.1.1 seller must supply and deliver the hardware to buyer at the delivery location and by the delivery time specified in Section 1 of Schedule C.
5.1.2 Title in each item, unit or module for hardware will transfer to buyer immediately upon acceptance or full payment of the hardware by buyer, as specified in Section 1 of Schedule C. seller accepts risk for loss of or
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damage to the hardware from the time buyer takes delivery of the
hardware, except to the extent the loss or damage is caused or contributed
to by seller during delivery or installation services.
5.1.3 seller must:
a) comply with ISO 14024 or ISO 140021 at the level of Electronic
Product Environmental Assessment Tool (EPEAT) “silver” rating or
equivalent as a minimum standard for relevant hardware being
supplied under this contract;
b) comply with the minimum ENERGY STAR® rating for any relevant
hardware supplied under this contract (refer
www.energyrating.gov.au);
c) where no other disposal arrangements are specified for equipment
supplied under this contract:
(i) for ICT equipment covered by the National Television and
Computer Recycling Scheme, seller must take back the supplied
equipment at end-of-use for re-use or resource recovery; and
(ii) for mobile devices/toner cartridges, seller must either take back
the devices/cartridges at end-of-use for re-use or resource
recovery or dispose of through a suitable recycling program.
5.1.4 Terms used in clause 5.1.3 that are not defined in this contract, have the
meaning attributed to them in the ICT sustainability plan.
5.1.5 To the extent all or any part of the hardware includes any software that is
licensed under an open source software licence:
a) seller must seek buyer’s approval to incorporate the open source software prior to supplying the hardware; and
b) if buyer gives its approval, the terms of that licence apply to that
open source software and prevail over the terms of this contract to
the extent of any inconsistency.
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6. Delivery of services
6.1 Installation services
6.1.1 seller must:
a) install the hardware in accordance with Section 2 of Schedule C including the specified delivery locations, delivery times and
delivery milestones; and
b) ensure the hardware when installed (and for the hardware support period if applicable) provides the functions and meets the
performance and other requirements of the specifications and
documentation for the hardware in Section 2 of Schedule C.
6.2 Hardware support services
6.2.1 seller must provide the hardware support services specified in this
clause 6.2 and Section 3 of Schedule C during the hardware support period.
6.2.2 [replacement parts] seller must, for 3 years from the delivery time for the
hardware, or such other period agreed by the parties in writing, ensure that
replacement parts for the hardware are available so that seller can meet its
obligations under this contract.
6.2.3 [preventative maintenance] seller must provide the preventative maintenance services:
a) specified in Section 3 of Schedule C;
b) only by prior arrangement with buyer;
c) at the times specified in Section 3 of Schedule C, or if no times are
specified in Section 3 of Schedule C, either at times:
(i) when the supported hardware is not operational; or
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(ii) likely to cause the least possible disruption to buyer’s business,
and buyer will cooperate with seller by providing access and facilities as
reasonably necessary to enable seller to provide the preventative maintenance services to the required standard.
6.2.4 buyer may at its discretion and at no additional charge postpone
preventative maintenance services on 5 business days’ notice to seller and reschedule the preventative maintenance services to occur as soon
as practicable.
6.2.5 Unless specified otherwise in Section 3 of Schedule C, preventative maintenance services include, as a minimum:
a) maintenance of the supported hardware in good operating condition;
b) defect detection and resolution;
c) replacement of unserviceable or faulty parts, subject to clause 6.2.2;
d) cleaning and, where possible, lubrication; and
e) adjustment of any mechanical or similar devices.
6.2.6 [Engineering changes and upgrades] Except to the extent specified in
Section 3 of Schedule C, hardware support services includes seller implementing all engineering changes and upgrades designed to improve
the safety, performance and reliability of the supported hardware.
6.2.7 To allow buyer to evaluate proposed engineering changes and upgrades
fully, seller must use its best endeavours to give buyer at least
10 business days prior notice of:
a) the purpose of the change;
b) details of how the supported hardware will be affected;
c) proposed timing of introduction;
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d) estimated time to complete testing requirements; and
e) estimated time to remove such changes in the event of failure to allow
the supported hardware to return to a satisfactory operating
condition.
6.2.8 seller must provide buyer with other assistance and information as is
reasonably required to enable buyer to determine whether to proceed with
the engineering change or upgrade.
6.2.9 buyer may conduct testing for acceptance of any proposed engineering
change or upgrade in accordance with the process set out in clause 8.
Without limiting clause 6.2.10, if an engineering change or upgrade which is
tested for acceptance under this clause 6.2.9 does not pass the tests for
acceptance, buyer may determine not to proceed with the engineering
change or upgrade.
6.2.10 Except where the engineering change or upgrade is classified by the
manufacturer as mandatory for safety reasons, buyer may, at its discretion,
determine not to proceed with any engineering change or upgrade. Refusal
of an engineering change or upgrade will not affect buyer’s entitlement to
ongoing hardware support services under this contract.
6.2.11 [defect correction services] seller must rectify defects in the hardware in
accordance with this clause 6.2.11 and Section 3 of Schedule C. If buyer notifies seller of a defect during the hardware support period, seller must, in accordance with the service level response times specified in
Section 3 of Schedule C, repair the defective hardware so it is in good
working order and compliant with the specifications.
6.2.12 If seller is unable to rectify a defect in accordance with clause 6.2.11,
seller must:
a) replace the defective hardware with alternative hardware that is in
good working order and meets the specifications and other
hardware requirements specified in Section 3 of Schedule C and pay
for the costs incurred by buyer as a result of the replacement; or
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b) if replacement is not possible, refund to buyer the charges for the
defective hardware and pay the costs incurred by buyer to remove
the hardware.
6.2.13 To the extent practical, seller must implement measures to minimise
disruption to buyer’s operations during the provision of defect correction
services under clauses 6.2.11 and 6.2.12, including taking any measures
specified in Section 3 of Schedule C.
6.2.14 seller must keep buyer informed as to the status of the defect correction
services and where any part of the supported hardware is replaced and
the part does or may contain buyer data, take all practical steps to remove
and return the buyer data to buyer.
6.2.15 Any hardware defect correction services required during the warranty period will be performed by seller at no charge.
6.2.16 At the discretion of buyer, before completing defect correction services,
seller must either:
a) test the hardware by running diagnostic programs and performing any
relevant tests necessary to show that the defect correction services have been successful; or
b) explain and demonstrate to buyer the effect of the defect correction
services,
and if requested by buyer, must provide written confirmation of the test
results or explanation.
6.2.17 [Hardware support services charges] The charges for all hardware support services include all costs in relation to the performance of the
services including any packing, freighting, repair, modification, disassembly
and reassembly costs.
6.2.18 [storage of seller materials] Unless stated otherwise in Section 3 of
Schedule C, seller may store manuals, tools and test equipment on site as
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required for the purposes of the contract. buyer agrees not to use any such
materials without seller’s consent.
6.2.19 [maintenance records] If specified in Section 3 of Schedule C, seller will
keep full records of its hardware support services and will provide copies
of those records to buyer within 5 business days of a request or other
period specified in Section 3 of Schedule C.
6.2.20 [hardware support services exclusions] Unless specified otherwise in
Section 3 of Schedule C, seller is not required to perform hardware support services in respect of:
a) supported hardware that has been altered, damaged or modified by a
person other than seller;
b) defects caused by buyer’s negligence, abuse or misapplication of the
supported hardware;
c) defects caused by electrical failure, air conditioning or humidity control
or any other environmental factor on buyer’s premises where the
supported hardware is situated;
d) accessories, attachments, supplies or items associated with the
supported hardware other than those provided by seller under this
contract; or
e) performance issues resulting from changes in buyer’s operating
environment not approved by or agreed with seller.
6.3 Training services
6.3.1 seller must provide the training services (including training
documentation), if any, specified in Section 4 of Schedule C in accordance
with the specifications and service levels specified or referred to in that
Schedule.
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7. General delivery requirements and warranties
7.1 Complying with requirements and timeframes
7.1.1 seller must ensure deliverables:
a) comply with the specifications and other requirements specified in
Schedule C;
b) meet the service levels specified in Schedule C;
c) are delivered in accordance with the delivery times;
d) achieve acceptance by the applicable due date;
e) comply with applicable Australian standards or, if there are no
applicable Australian standards, any applicable international
standards, including those specified in Schedule C; and
f) comply with any other standards specified in Schedule C.
7.1.2 seller is responsible for ensuring buyer is placed in a position to, and with
sufficient time to, perform buyer’s tasks required for successful
acceptance of a deliverable or achievement of a delivery milestone in
accordance with the requirements (including dates) specified in the contract.
7.1.3 seller will comply with reasonable directions given by buyer that are
consistent with the contract in relation to seller’s performance of its
obligations under the contract.
7.1.4 seller must:
a) be a signatory to the Australian Packaging Covenant or comply with
the requirements of the National Environment Protection (Used
Packaging Materials) Measure (unless exempt by legislation); and
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b) have an environmental management system aligned to the ISO
14001 standard or alternatively, implement business processes that
are aligned to the ISO 14001 standard within six months after the
commencement of this contract.
7.2 Documentation
7.2.1 seller must provide buyer up-to-date technical and operator associated
documentation containing sufficient information to enable buyer to make
full use of the services and products at all times and that, at the time of
delivery, meets the requirements for documentation specified in clause
7.2.3.
7.2.2 Without limiting clause 7.2.1, seller must give buyer the documentation
specified in Schedule C in the format and at the times specified in that
Schedule.
7.2.3 seller must ensure all documentation required to be provided with any
service or product is:
a) of a reasonable standard in terms of presentation, accuracy and
scope;
b) at the time of delivery, be current and accurate and consistent with the
specifications;
c) in English with all key terms, words and symbols adequately defined or
explained; and
d) if revised or replaced for any reason, the revisions or replacements are
provided at no additional cost to buyer if buyer is at that time receiving
hardware support services.
7.2.4 seller must amend or substitute documentation periodically to address and
adequately explain the implications of:
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a) any repair or replacement of the supported hardware if such repair or
replacement is likely to result in varying operational procedures
involving the use of the supported hardware; and
b) any engineering change or upgrade supplied under the contract,
within 5 business days of the delivery of the engineering change, upgrade,
repair or replacement.
7.3 Knowledge transfer and other assistance
7.3.1 In providing any services, seller’s personnel must, at no additional cost to
buyer, use reasonable efforts to transfer its knowledge about the services
and products to buyer’s personnel.
7.4 General warranties
7.4.1 Clauses 7.4 to 7.8 do not limit any other warranties provided under this
contract.
7.4.2 seller warrants that:
a) it has the rights, title, licences, interest, permits, registrations and
property necessary to lawfully provide the deliverables;
b) the deliverables will be:
(i) fit for the purposes, and meet the other requirements, set out in
the specifications; and
(ii) complete, accurate and free from material faults in design; and
c) all materials (including documentation) supplied with the products
and services will be sufficient to enable buyer to make full and proper
use of the products and services.
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7.4.3 seller must notify buyer if anything happens or may happen that could
affect any of the warranties in this contract or seller’s ability to perform its
obligations under the contract.
7.5 Specific product warranties
7.5.1 seller represents and warrants:
a) unless otherwise specified in Schedule C, the products are new and
unused;
b) the products are free from any security interest or other
encumbrance; and
c) the products (and any media on which the products are provided)
are free from defects in workmanship, design and materials.
7.6 Specific service warranties
7.6.1 seller represents and warrants it will perform the services using a
professional degree of care, skill and diligence according to any applicable
industry best practice standard.
7.7 Third party warranties
7.7.1 Where seller supplies products that have been procured from a third party, seller assigns to buyer, to the extent practicable and to the extent
permitted by law, the benefits of the warranties given by the third party.
7.7.2 This assignment does not relieve seller of the warranties it provides directly
to buyer under this contract.
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7.8 Harmful code
7.8.1 seller must:
a) take reasonable precautions (including using good industry practice) to
ensure that it does not, and seller’s personnel do not; and
b) ensure it does not, and seller’s personnel do not, negligently or
deliberately,
introduce any harmful code into buyer’s systems or include any harmful code in any deliverable.
7.8.2 If seller becomes aware that harmful code has been, or is likely to have
been, introduced into buyer’s systems by buyer or buyer’s personnel or
included in a deliverable, seller must:
a) immediately notify buyer;
b) take all necessary steps to eliminate the harmful code in a
deliverable;
c) if seller is in breach of clause 7.8.1, take all necessary steps (at no
additional cost to buyer) to eliminate the harmful code in buyer’s systems and repair any damage caused by the harmful code to
buyer’s systems, subject to any directions given by buyer; and
d) if seller is not in breach of clause 7.8.1, if directed by buyer in a
notice and in accordance with such direction, at buyer’s cost,
eliminate the harmful code in buyer’s systems and repair any
damage caused by the harmful code to buyer’s systems.
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8. Acceptance
8.1 Acceptance process
8.1.1 seller must provide all deliverables to buyer for acceptance with a draft
acceptance certificate, signed by seller, confirming that the deliverable
meets all requirements for the deliverable under this contract.
8.1.2 seller must:
a) provide deliverables to buyer in accordance with any applicable
requirements in Schedule C relating to the timing and location of
delivery including any delivery times and delivery locations; and
b) achieve acceptance of any deliverables by the due dates specified
or referred to in Schedule C.
8.1.3 By providing a deliverable to buyer for acceptance, seller warrants that
the deliverable meets all requirements for the deliverable under this
contract, including the specifications for the deliverable.
8.1.4 If buyer receives a deliverable under clause 8.1.1, within 10 business days (or an alternative period specified in Schedule C or the acceptance test plan) buyer must conduct acceptance tests on the deliverable to
assess whether the deliverable meets the acceptance criteria and
specifications for the deliverable and either:
a) accept the deliverable by signing the draft acceptance certificate provided with the deliverable and sending that certificate to seller; or
b) reject the deliverable (because it does not meet the acceptance criteria and specifications for the deliverable and/or because the
deliverable has one or more defects) by sending a notice to seller that includes the reasons for rejection.
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8.1.5 seller must (at no additional cost to buyer) provide any assistance
reasonably requested by buyer in a notice in relation to the conduct of
acceptance tests on a deliverable.
8.1.6 buyer may not accept a deliverable in any other way other than signing an
acceptance certificate for the deliverable. buyer is not taken to accept a
deliverable because it accepts delivery of the deliverable or uses the
deliverable.
8.1.7 buyer’s acceptance of a deliverable does not waive or limit any right
buyer has under this contract (including in relation to the remediation of
defects) in relation to the quality of the deliverable.
8.1.8 buyer must meet the costs of buyer’s acceptance testing unless a
deliverable requires retesting because it was properly rejected by buyer under clause 8.1.4, in which case buyer, by notice to seller, may require
seller to reimburse buyer for buyer’s reasonable costs of the additional
acceptance tests. If buyer issues a notice to seller under this clause,
buyer’s reasonable costs of the additional acceptance tests are a debt
due to buyer by seller.
8.2 Acceptance test plan
8.2.1 This clause 8.2 only applies if Item 19 of Schedule B requires an
acceptance test plan.
8.2.2 seller must prepare a draft acceptance test plan in the form of the
template at Schedule D and provide it to buyer for approval within the time
period specified in Item 19 of Schedule B (or if no time period is specified,
within 20 business days of the commencement date). If buyer does not
approve the acceptance test plan, it may by notice give reasonable
directions to seller to modify the acceptance test plan. seller must comply
with such directions and, within 5 business days, resubmit the acceptance test plan to buyer for approval under this clause 8.2.2.
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8.2.3 If buyer approves an acceptance test plan submitted under clause 8.2.2,
seller and buyer must prepare for the testing of deliverables, test
deliverables and accept or reject deliverables in accordance with the
approved acceptance test plan. If, in relation to a particular deliverable,
the approved acceptance test plan is directly inconsistent with a
requirement of clause 8.1, the approved acceptance test plan prevails to
the extent of the inconsistency.
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9. Intellectual property and moral rights
9.1 Overview
9.1.1 contract material consists of existing material and new material.
9.1.2 Unless expressly stated otherwise, this contract does not affect the
ownership of intellectual property rights in existing material which will
remain with either seller, a third party or buyer, as applicable.
9.1.3 seller must obtain all necessary intellectual property rights permissions
before including any existing material (other than buyer’s existing material) in the contract material or using that existing material to deliver
the services.
9.1.4 If a party is required to vest ownership of new material in the other party in
accordance with this clause 9, that party must do all things and execute all
documents necessary or convenient to vest that material in the other
party.
9.2 Intellectual property rights in contract material
9.2.1 seller grants to, or must obtain for, buyer a perpetual licence to use all existing material (other than buyer’s existing material) for government purposes.
9.2.2 buyer grants seller a contract delivery licence to all buyer’s existing material.
9.2.3 Ownership of intellectual property rights in new material will be in
accordance with either Model A in clause 9.2.4 or Model B in clause 9.2.5,
as specified in Item 20 of Schedule B. If no ownership model is selected in
Schedule B, Model A will apply.
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9.2.4 Model A: All intellectual property rights in new material will, upon their
creation, vest in buyer. To the extent seller needs to use new material to
perform its obligations under this contract, buyer grants seller a contract delivery licence to that new material.
9.2.5 Model B: All intellectual property rights in new material will, upon their
creation, vest in seller and seller grants buyer a perpetual licence to all
intellectual property rights in the new material for any use for
government purposes and buyer may assign the licence to another
agency, on the same terms but at no additional cost to buyer or the
assignee.
9.3 IP warranty
9.3.1 seller warrants that:
a) all contract material (other than existing material provided by buyer) and buyer’s use of that contract material will not infringe the
intellectual property rights of any person; and
b) it has the necessary rights to vest under clauses 9.1 to 9.2 and to grant
the licences required or referred to under this clause 9.
9.4 Infringement claims
9.4.1 If a claim of infringement of intellectual property rights or moral rights is
made or threatened by a third party, buyer will allow seller, at seller’s
expense, to either:
a) obtain for buyer the right to continued use of the material; or
b) replace or modify the material so that the alleged infringement ceases,
provided the material continues to provide buyer with equivalent
functionality and performance as required in the specifications.
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9.5 Moral rights
9.5.1 seller represents and warrants that its performance of the contract
(including provision of any material) or buyer’s use of material in
accordance with the contract will not infringe the moral rights of seller’s personnel.
9.5.2 seller must ensure that no seller’s personnel will institute, maintain or
support any claim or proceeding against buyer or buyer’s personnel for
infringement of any of their moral rights.
10. Buyer assistance to seller
10.1 Access to buyer material
10.1.1 buyer must provide to seller the buyer material (if any) specified in Item 21
of Schedule B. The buyer material will:
a) to buyer’s reasonable knowledge and belief, be fit for the purpose
stated in Schedule B; and
b) remain the property of buyer and seller must identify it as such.
10.1.2 seller must not, without buyer’s prior written approval, use buyer material other than for the purpose stated in Schedule B.
10.1.3 seller’s obligations under the contract are not limited by buyer’s provision
of this material.
10.2 Use of buyer facilities
10.2.1 buyer must make the facilities specified in Item 22 of Schedule B reasonably available to seller for its use in performing the contract.
10.2.2 buyer warrants that:
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a) such facilities (including any equipment or software) will comply with
the requirements specified in Item 22 of Schedule B;
b) such facilities will be maintained by buyer in accordance with the
requirements (if any) in Item 22 of Schedule B; and
c) should a facility fail at any time to meet the requirements in Item 22 of
Schedule B, without limiting any other rights of seller, buyer will take
steps to ensure the facility meets the requirement as soon as
practicable.
10.3 Access to buyer facilities
10.3.1 buyer must provide seller access to buyer’s facilities specified in Item 23
of Schedule B to enable seller to fulfil its obligations under the contract.
10.3.2 buyer may temporarily deny seller access to buyer’s facilities, at its sole
discretion.
10.4 Site specification and preparation
10.4.1 Item 24 of Schedule B specifies the details (if any) of the implementation
and environmental requirements of a service and/or product (site
specifications) to allow buyer to prepare the site to meet those
requirements.
10.4.2 Unless specified otherwise in Item 24 of Schedule B, buyer is responsible
for preparing the site to meet the site specifications.
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11. Charges and payment
11.1 Charges
11.1.1 The charges are set out in Schedule F and, subject to seller’s performance
of its obligations in accordance with the contract, are payable by buyer in
accordance with this clause 11 and Schedule F.
11.1.2 The charges may be based on one or more of the following:
a) time;
b) unit;
c) payment milestones;
d) any other basis specified in Schedule F.
11.2 Invoices
11.2.1 After acceptance of a deliverable or delivery milestone, or as otherwise
specified in Schedule F, seller must promptly deliver to buyer at the
invoice address specified in Item 25 of Schedule B a correctly rendered invoice covering the charges payable.
11.3 Payment
11.3.1 buyer will make payment within 30 days of receiving a correctly rendered invoice, unless a different period is specified in Schedule F.
11.3.2 The parties agree that payments may be effected by electronic funds
transfer in accordance with Schedule F, or as otherwise agreed.
11.3.3 If the parties dispute whether any amount included in an invoice is payable,
buyer may withhold the disputed portion until the dispute is resolved but will
pay the undisputed portion within the period specified in clause 11.3.1.
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11.4 Service Rebates
11.4.1 If specified in Schedule F and if seller is responsible for failing to achieve a
service level, seller:
a) must pay service rebates to buyer in accordance with Schedule F;
b) acknowledges that any service rebates calculated in accordance with
Schedule F are a genuine pre-estimate of the loss and damage buyer will suffer because of the service level failure;
c) acknowledges that payment of any service rebates will be without
prejudice to any other rights or remedies buyer has against seller under, or arising from, this contract because of the service level failure; and
d) will not be liable to pay any service rebates to the extent the service level failure was caused by buyer’s failure to comply with the contract.
11.4.2 The parties agree that the total amount of service rebates payable by
seller under this contract must not exceed the total amount of the charges
payable to seller under this contract.
11.5 GST and other taxes
11.5.1 All taxes imposed or levied in Australia or overseas in connection with this
contract will be the responsibility of seller.
11.5.2 In this clause 11.5, a word or expression defined in the GST Act has the
meaning given to it in that Act.
11.5.3 If a party (supplier) makes a supply under or in connection with this
contract in respect of which GST is payable, the recipient of the supply must
pay to the supplier, an additional amount equal to the GST payable on the
supply.
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11.6 Maximum charges payable
11.6.1 Notwithstanding any other provision of this contract (other than clause 11.7)
buyer has no liability to pay charges to seller to the extent that those
charges exceed the maximum charges payable.
11.7 Late payment of invoices
11.7.1 This clause 11.7 only applies where:
a) the value of this contract is not more than $1 million (GST inclusive);
and
b) amount of the interest payable exceeds $100 (GST inclusive).
11.7.2 buyer must pay interest on late payments to seller as follows:
a) for payments made by buyer between 30 days and up to 60 days after
the amount became due and payable, only where seller issues a
correctly rendered invoice for the interest; or
b) for payments made by buyer more than 60 days after the amount
became due and payable, buyer will pay the interest accrued together
with the payment.
11.7.3 Interest payable under this clause 11.7 will be simple interest on the unpaid
amount at the general interest charge rate, calculated in respect of each
day after the amount was due and payable, up to and including the day
buyer effects payment as represented by the following formula:
SI = UA x GIC x D, where:
SI = simple interest amount;
UA = the unpaid amount;
GIC = general interest charge rate; and
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D = the number of days from the day after payment was due up to and
including the day when buyer’s system generates a payment request
into the banking system for payment to seller.
11.8 Right to recover money
11.8.1 Without limiting buyer’s rights or remedies under this contract or at law, if
seller owes any debt to buyer in relation to this contract, buyer may do one
or both of the following:
a) deduct the amount of the debt from payment of any claim or monies
owed to seller by buyer;
b) give seller a notice requesting payment of the debt by seller.
11.8.2 seller must pay the amount claimed by buyer in a notice issued under
clause b) within 30 days of the notice date.
11.8.3 If any money owed to buyer is not received by the due date for payment,
seller must pay buyer interest for each day of the delay at the general interest charge rate current at the due date for payment.
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Contract Management and Performance
12. Information management
12.1 Privacy
12.1.1 seller must, in relation to the performance of this contract:
a) not do any act, omit any act or engage in any practice;
b) ensure that seller’s personnel do not do any act, omit any act or
engage in any practice; and
c) ensure that every subcontract makes it a breach of the subcontract by the subcontractor if the subcontractor does any act, omits any
act or engages in any practice,
that:
d) if done or omitted by buyer, would be a breach of an Australian
Privacy Principle under the Privacy Act 1988 (Cth); and/or
e) would be an interference with the privacy of an individual, within the
meaning of that expression in the Privacy Act 1988 (Cth).
12.1.2 seller must comply with, and ensure that seller’s personnel comply with,
any privacy policy or guidelines specified at Item 26 of Schedule B.
12.1.3 seller must ensure that all of seller’s personnel who access personal information in relation to this contract are informed about seller’s obligations under this clause 12.1.
12.1.4 seller must immediately notify buyer if any of the following occur:
a) seller receives a complaint from a third party about the handling of any
personal information held or accessed by seller in relation to this
contract;
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b) the Privacy Commissioner in any Australian jurisdiction requests
information about or commences an investigation in relation to this
contract;
c) seller breaches its obligations under this clause 12.1 or becomes
aware of circumstances that may reasonably suggest that it could have
breached its obligations under this clause.
12.2 Confidentiality
12.2.1 Subject to clause 12.2.2, seller must:
a) keep buyer’s confidential information confidential;
b) only use buyer’s confidential information for the purpose of
performing this contract; and
c) not disclose buyer’s confidential information to any third party
except as expressly authorised by this contract or in a notice from
buyer to seller.
12.2.2 seller may disclose buyer’s confidential information as required by law
or the rules of a securities exchange. However, any such disclosure must be
the minimum disclosure required.
12.2.3 Unless prevented by law, seller must inform buyer in a notice about any
proposed disclosure of buyer’s confidential information under clause
12.2.2.
12.2.4 Clause 12.2.1 does not prevent seller providing access to buyer’s confidential information to seller’s personnel, auditors and advisers on a
confidential basis for purposes relating to this contract.
12.2.5 Subject to clause 12.2.6 buyer must:
a) keep seller’s confidential information confidential;
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b) only use seller’s confidential information for purposes relating to
this contract; and
c) not disclose seller’s confidential information to any third party
except as expressly authorised by this contract or in a notice from
seller to buyer.
12.2.6 buyer may disclose seller’s confidential information:
a) as required by law (including under the Freedom of Information Act 1982 (Cth)); or
b) pursuant to an accountability obligation.
12.2.7 Unless prevented by law, buyer must inform seller about any proposed
disclosure of seller’s confidential information under clause 12.2.6a).
12.2.8 Clause 12.2.5 does not prevent buyer providing access to seller’s confidential information on a confidential basis to:
a) buyer’s employees, contractors, auditors and advisers for purposes
relating to this contract, or
b) an agency, in relation to the operation of clause 1.4 or for a purpose
relating to the agency’s functions.
12.2.9 If a party becomes aware that it has breached its obligations under this
clause 12.2, it must immediately notify the other party.
12.3 Buyer’s data
12.3.1 seller must maintain any buyer’s data it holds securely and in accordance
with Item 29 of Schedule B.
12.3.2 seller is permitted to access and use buyer’s data for the sole purpose of
performing this contract. seller has no rights in relation to buyer’s data.
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12.3.3 Unless authorised by buyer in a notice to seller, seller must not conduct
any data mining activities in respect of buyer’s data.
12.3.4 Unless authorised by buyer in a notice to seller, seller must not do
anything to transfer custody or ownership of buyer’s data to a third party.
12.3.5 seller must provide buyer access to buyer’s data as requested by buyer in
a notice to seller.
12.3.6 buyer may at any time issue reasonable directions to seller in a notice to
comply with archival and information management requirements for buyer’s data that are necessary or desirable to enable buyer to comply with
government policy. Subject to clause 12.3.7, seller must comply with such
directions.
12.3.7 If seller (acting reasonably) considers complying with a direction under
clause 12.3.6 would materially increase its costs of performing this contract,
within 15 business days it must notify buyer and propose a change to the
contract under clause 16.1 to give effect to buyer’s direction under clause
12.3.6. If seller gives a notice under this clause 12.3.7, seller is not
required to comply with buyer’s direction under clause 12.3.6 until the
contract variation is agreed by the parties.
12.3.8 Upon the expiry or termination of this contract, seller must:
a) transfer all of buyer’s data to buyer, in accordance with any
reasonable directions of buyer in a notice to seller, and ensure that
any electronic buyer’s data is transferred to buyer in a usable format;
and
b) unless otherwise required by law or otherwise permitted in Item 30 of
Schedule B, delete all of buyer’s data from seller’s systems, provide
buyer with confirmation that this has been done in a notice and return
all buyer’s data that is in physical form to buyer.
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12.4 Records
12.4.1 seller must maintain sufficient, accurate and up-to-date business and
accounting records (including supporting documentation) of all transactions
or events in relation to this contract (including records of all deliverables
provided under this contract, and substantiation for all amounts claimed in
any invoice issued under this contract) until the latter of 2 years after the
termination or expiry of this contract and two years after the transaction or
event.
12.4.2 seller must ensure that the records maintained under clause 12.4.1:
a) are kept securely and not deleted or otherwise disposed of without
buyer’s prior written authorisation to seller in a notice;
b) are kept in a manner that enables them to be conveniently audited;
and
c) comply with any applicable accounting standards.
12.5 Transferring data off-shore
12.5.1 seller must not transfer, store or access buyer’s confidential information outside Australia unless permitted in Item 31 of Schedule B or in a notice
from buyer to seller. Item 31 of Schedule B or a notice from buyer may
impose conditions on any such permission.
12.5.2 seller must comply with any conditions in Item 31 of Schedule B or in a
notice under clause 12.5.1.
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13. Security
13.1 General requirements
13.1.1 To the extent they are applicable to seller’s performance of this contract,
seller must perform all of its obligations under this contract in a manner that
is consistent with:
a) the Protective Security Policy Framework and the Commonwealth
Information Security Manual; and
b) any of buyer’s security Commonwealth policies specified in Item 32 of
Schedule B.
13.1.2 When performing its obligations under this contract, seller must comply
with:
a) all security requirements specified in Item 32 of Schedule B; and
b) subject to clause 13.1.3, any direction relating to security given by
buyer in a notice to seller (which may include a direction to comply
with an additional security policy or requirement).
13.1.3 If seller (acting reasonably) considers complying with a direction under
clause 13.1.2b) would materially increase its costs of performing this
contract, within 5 business days it must notify buyer and propose a
change to the contract under clause 16.1 to give effect to buyer’s direction
under clause 13.1.2b). If seller gives a notice under this clause, seller is
not required to comply with buyer’s direction under clause 13.1.2b) until the
contract variation is agreed by the parties.
13.1.4 Without limiting any other clause, seller must ensure that buyer’s data is
protected against loss, damage, corruption, misuse and unauthorised
access by taking security measures that are no less stringent than good
industry practice.
13.1.5 seller must immediately notify buyer if any of the following occur;
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a) seller breaches any of its obligations under this clause 13;
b) seller becomes aware of circumstances that may reasonably suggest
that it could have breached its obligations under this clause 13;
c) seller becomes aware that any buyer’s data has been lost, stolen,
misused, corrupted or accessed by an unauthorised person;
d) seller becomes aware of circumstances that may reasonably suggest
that any buyer’s data has been lost, stolen, corrupted or accessed by
an unauthorised person.
13.2 Physical security
13.2.1 seller must:
a) ensure that seller’s premises are kept secure;
b) ensure that buyer’s data in physical form is kept in appropriate
security containers for its security classification;
c) ensure that seller’s personnel who have access to buyer’s data are
briefed on security requirements for buyer’s data; and
d) at buyer’s request in a notice, provide details of seller’s physical
security measures in place to protect buyer’s data.
13.3 Cyber security
13.3.1 seller must take reasonable and prudent steps consistent with good
industry practice to reduce the risk of cyber attack on seller’s systems.
13.3.2 At buyer’s request in a notice, seller must provide details of seller’s
security measures in place to reduce the risk of cyber attack on seller’s systems.
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13.3.3 If seller becomes aware of a cyber attack on seller’s systems, seller must immediately notify:
a) buyer (and, if this notification is not done by notice, by notice within 1
business day); and
b) if required by buyer, advise CERT Australia and/or the Australian
Cyber Security Centre.
13.4 Information security
13.4.1 seller must:
a) take reasonable and prudent steps for disaster recovery and business
continuity consistent with good industry practice to ensure that
buyer’s data on seller’s systems is not lost, corrupted or rendered
inaccessible;
b) ensure that access to seller’s systems is controlled so that only
seller’s personnel with a need to access buyer’s data for a purpose
relating to the performance of this contract are able to access buyer’s data; and
c) ensure that seller’s systems are configured so that seller’s personnel who are not permitted under this contract to access
buyer’s confidential information cannot access buyer’s confidential information.
14. Liability
14.1 Liability
14.1.1 seller is responsible for any act or omission of seller’s personnel in
relation to this contract, whether or not the act or omission is authorised by
seller.
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14.1.2 Each party must use reasonable endeavours to mitigate its loss or damage
relating to this contract where the other party is liable for the loss or
damage (whether because of breach of this contract or otherwise).
14.1.3 The liability of a party to the other party in relation to this contract (including
under an indemnity) is reduced proportionately if the party incurring the loss
or suffering the damage has contributed to the loss or damage through:
a) a breach of its obligations under this contract; and/or
b) a negligent or deliberately wrongful act or omission (including, in the
case of seller, an act or omission by seller’s personnel, and in the
case of buyer, an act or omission of buyer’s employees or officers).
14.2 Limitations of liability
14.2.1 If an amount is included at Item 33 of Schedule B, subject to clause 14.2.2,
the liability of each party to the other party in relation to this contract
(including under an indemnity) is limited to that amount.
14.2.2 The limitation of liability in clause 14.2.1 does not apply to liability for any of
the following:
a) personal injury (including sickness and death);
b) the loss of, or damage to, tangible property;
c) for an infringement of intellectual property rights;
d) for a breach of any obligation relating to confidentiality, privacy or
security (including any obligation on seller relating to the protection of
buyer’s data);
e) for breach of statute law;
f) a deliberately wrongful act or omission (including fraud and, in the
case of seller, repudiation of this contract).
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14.2.3 Subject to clause 14.2.4, neither party is liable to the other party for loss or
damage of the following types:
a) loss of goodwill;
b) loss of business revenue, business opportunity or business profits.
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14.2.4 Clause 14.2.3 does not prevent a party recovering from the other party loss
or damage of the following type:
a) additional internal or project costs;
b) the cost of repairing or replacing deliverables;
c) the cost of having additional services performed by a third party;
d) legal fees.
14.2.5 Subject to clause 14.2.6, seller is not responsible for a failure to meet its
obligations under this contract to the extent that the failure is directly caused
by inaccurate or incomplete buyer’s data which is required by seller to
perform the contract.
14.2.6 seller is only entitled to the benefit of clause 14.2.5 in relation to inaccurate
or incomplete buyer’s data if seller notifies buyer immediately it becomes
aware that the relevant buyer’s data is inaccurate or incomplete or is
inconsistent with other buyer’s data.
14.3 Indemnities
14.3.1 seller indemnifies buyer and buyer’s employees, officers, agents and
contractors against losses reasonably sustained or incurred by any of them
as a result of any claim made or threatened by a third party (including a
subcontractor) in relation to any of the following:
a) a breach of this contract, including any breach of seller’s warranties in
this contract;
b) any claim that any deliverables provided by seller to buyer under this
contract infringe the intellectual property rights of a third party; and
c) any negligent or deliberately wrongful act or omission, or breach of
law, in relation to this contract.
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14.3.2 buyer holds the benefit of the indemnity in clause 14.3.1 on trust for
buyer’s employees, officers, agents and contractors.
14.3.3 For the purpose of clause 14.3.1, a claim by a third party that it is entitled
to payment from buyer in relation to its use of deliverables provided by
seller to buyer under this contract is taken to be a claim by the third party
that the deliverables infringe the third party’s intellectual property rights, despite statutory provisions providing protection to the
Commonwealth for infringement of intellectual property rights (for
example, section 183 of the Copyright Act 1968 (Cth)).
14.3.4 To enforce the indemnity in clause 14.3.1, buyer must:
a) notify seller;
b) subject to clause 14.3.5, permit seller, at seller’s expense, to manage
settlement negotiations and any litigation with the third party; and
c) if seller does manage settlement negotiations and any litigation with
the third party, to provide (at seller’s request in a notice) reasonable
assistance to seller in relation to the negotiations or litigation.
14.3.5 If seller handles settlement negotiations and any litigation with the third party under clause 14.3.4, seller must:
a) comply with law (including the legal services directions) and
government policy in relation to the negotiations and/or litigation as if
seller was an agency of the same type as buyer;
b) comply with any direction issued by the Commonwealth Attorney-
General to buyer (and notified to seller) in relation to the negotiations
and/or litigation; and
c) promptly provide buyer with any information reasonably requested by
buyer in a notice to seller in relation to the negotiations and/or
litigation (including all information required by buyer to comply with
reporting obligations under the legal services directions).
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14.3.6 The rights of buyer and its employees, officers, agents and contractors
under clause 14.3.1 are in addition to any other rights.
14.4 Insurance
14.4.1 seller must maintain the following insurance policies on ordinary terms with
no unusual exclusions:
a) workers compensation insurance, during the term, as required by law;
b) public liability insurance, in an amount of at least the value specified in
Item 34 of Schedule B;
c) if seller provides services under this contract, professional indemnity
insurance, in an amount of at least the value specified in Item 35 of
Schedule B;
d) if seller provides products under this contract, product liability
insurance, in an amount of at least the value specified in Item 36 of
Schedule B; and
e) any other insurance specified in Item 37 of Schedule B, in an amount
of at least the value specified in Item 37.
14.4.2 All amounts specified in clause 14.4.1 are per claim (or series of related
claims).
14.4.3 seller must maintain all insurance policies required under clause 14.4.1
during the term, other than “claims made” polices which must be maintained
for at least 2 years (or such longer period if any specified in Item 38 of
Schedule B) after the expiry or termination of this contract.
14.4.4 If requested by buyer in a notice, seller must provide buyer with
certificates of currency of all insurance policies required under clause 14.4.1
and details of the extent of cover.
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15. Management of performance issues
15.1 Defects
15.1.1 If seller delivers any deliverable to buyer for acceptance and buyer rejects the deliverable, on the basis of acceptance tests, because the
deliverable has a defect, seller must (at no additional cost to buyer) remedy the defect and resubmit the deliverable without defects to buyer for acceptance.
15.1.2 If seller delivers any deliverable to buyer and buyer accepts the
deliverable but:
a) the deliverable has a defect; and
b) during the warranty period for that deliverable, buyer notifies seller that the deliverable has the defect,
seller must (at no additional cost to buyer) remedy the defect within 10
business days of the date on which it was notified of the defect.
15.1.3 If seller does not comply with its obligations under clause 15.1.2 to remedy
a defect in a deliverable within 10 business days of a notice from buyer, buyer may remedy the defect and, by notice to seller, require seller to
reimburse buyer for buyer’s reasonable costs of remediation. If buyer issues a notice to seller under this clause, buyer’s reasonable costs of
remediation of the defect are a debt due to buyer by seller.
15.1.4 buyer’s rights under this clause 15.1 are in addition to any rights buyer has
in relation to defects under clause 6.2.
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16. Changing and ending the contract
16.1 Variation
16.1.1 Other than as expressly provided in this contract, this contract may only be
varied in writing, signed by the parties. buyer is not responsible for any
additional charges or for any additional costs incurred by seller in relation
to a proposed variation until the variation is recorded in writing and is signed
by the parties.
16.1.2 If a party proposes a change to the contract, that party must complete
Schedule G in relation to the proposed change and include the completed
change order in a notice to the other party for that party’s consideration.
16.1.3 If a limitation of liability amount is included at Item 33 of Schedule B and the
risks relating to this contract for a party would increase or decrease as a
result of a proposed variation of this contract, the parties must negotiate in
good faith (as part of negotiations for the variation) to increase or decrease
the limitation of liability amount to reflect the changed risks.
16.1.4 Each party must meet its own costs of varying the contract under this
clause 16.1.
16.2 Buyer directions
16.2.1 If buyer (acting reasonably) considers that seller will not meet, or has not
met, its obligations under this contract, buyer may give seller a reasonable
direction in a notice to minimise the impact of seller’s actual or prospective
breach of this contract on buyer. seller must comply with any direction
given by buyer under this clause 16.2.1.
16.3 Pricing contract variations
16.3.1 seller may only propose increased charges for a contract variation when
completing Schedule G under clause 16.1.2 if the proposed variation would
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involve seller incurring additional costs, compared to the costs of
performing the contract without the variation.
16.3.2 seller must ensure that such increased charges are reasonable, calculated
on the same basis as Schedule F and, if requested by buyer in a notice to
seller, substantiated.
16.3.3 If Schedule F includes a pricing mechanism for contract variations, seller must apply that mechanism when proposing increased charges for a
contract variation when completing Schedule G under clause 16.1.2.
16.4 Termination and reduction for convenience
16.4.1 buyer may by notice to seller terminate or partially reduce the scope of this
contract with immediate effect for buyer’s convenience.
16.4.2 If buyer gives seller a notice under clause 16.4.1, seller must immediately:
a) in the case of a termination, stop the delivery of products and
services under this contract;
b) in the case of a partial reduction in scope, stop the delivery of
products and services under this contract covered by the reduction in
scope but continue the delivery of all other products and services
under this contract; and
c) in either case, take all practical steps to mitigate its loss arising from
the termination or partial reduction in scope.
16.4.3 If buyer exercises its right to terminate or partially reduce the scope of this
contract under this clause 16.4:
a) buyer has no liability to seller in relation to the termination or
reduction of scope other than as provided by this clause 16.4.3;
b) buyer has no liability to seller in relation to loss of future or
prospective charges or profits;
59
c) buyer has no liability to seller under this clause 16.4.3 for any amount,
when aggregated with other charges paid or payable by buyer, exceeds the maximum charges payable;
d) seller may recover charges for any products or services properly
delivered in accordance with this contract up to the date of the
termination or reduction of scope;
e) seller may recover costs directly relating to the termination that were
unavoidably incurred in the proper performance of this contract, that
cannot be mitigated and that can be substantiated to the reasonable
satisfaction of buyer; and
f) in the case of a reduction of scope, buyer and seller will negotiate in
good faith on whether any ongoing charges of a recurring nature
should be reduced to reflect the reduced scope of the contract and, if
so, the amount of the reduction (such reduction to be agreed through
the variation process in clause 16.1).
16.5 Termination by buyer for default
16.5.1 buyer may by notice to seller terminate or partially reduce the scope of this
contract with immediate effect if any of the following apply:
a) seller is in breach of this contract and seller has not cured the breach
within 10 business days of being required to do so in a notice from
buyer to seller;
b) seller is in material breach of this contract and the breach cannot be
cured;
c) seller is in material breach of this contract and the breach results, or is
likely to result, in material damage to buyer’s reputation and/or the
Australian Government’s reputation;
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d) seller is in breach of any of the following clauses: 3.3, 3.6, 3.10, 4.2,
4.3, 4.5, 4.6, 4.7 4.8, 4.9, 7.8, 9.1, 9.2, 9.3, 9.5, 12, 13, 14.4, and the
breach is not immaterial;
e) seller fails to give a notice under clause 3.3.1 in circumstances where
the notice was required to be given;
f) seller gives a notice under clause 3.3.1; buyer (in its discretion)
considers that it has or may be adversely affected by the matters set
out in the notice; and buyer’s right to terminate on the basis of the
matters set out in the notice is not stayed by operation of law;
g) seller fails to notify buyer of a conflict of interest in breach of its
warranty in clause 3.8.1;
h) seller or any seller’s personnel have a conflict of interest that
cannot be managed to the reasonable satisfaction of buyer;
i) seller fails to comply with a direction by buyer under clause 3.8.2;
j) seller is in breach of the warranty in clause 9.3;
k) the improper or illegal conduct of seller or seller’s personnel (whether or not in connection with this contract) results in significant
damage to buyer’s reputation and/or the Australian Government’s
reputation in relation to this contract.
16.6 Termination by seller for default
16.6.1 seller may only terminate this contract in accordance with this clause 16.6.
16.6.2 If buyer fails to comply with its obligation to pay a correctly rendered invoice under clause 11 for more than 60 days after the due date, seller may demand immediate payment by sending a notice to buyer and also
providing a copy of the notice to the invoice address.
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16.6.3 If a correctly rendered invoice remains unpaid for a period of 30 days
after the date of a notice from seller under clause 16.6.2 relating to the
invoice, buyer may make a further demand for immediate payment by
sending a notice to buyer and also providing a copy of the notice to the
invoice address. seller must ensure that the notice refers to seller’s right
to terminate this contract under this clause 16.6.
16.6.4 Subject to clause 16.6.5, if a correctly rendered invoice remains unpaid
for a period of 30 days after the date of a notice from seller under clause
16.6.3, seller may terminate this contract with 5 business days’ notice by
giving a notice to buyer.
16.6.5 seller may not terminate this contract under this clause 16.6 because of
buyer’s failure to pay an invoice if buyer has paid all undisputed amounts
claimed by seller in the invoice and:
a) the issue of whether the disputed amounts are payable under this
contract is an issue or a dispute; and
b) the procedure in clauses 3.9.1 to clause 3.9.11 has commenced but
has not concluded in relation to the issue or dispute.
16.6.6 If buyer refuses to accept a deliverable in breach of this contract and:
a) the issue of whether buyer is required to accept the deliverable is a
dispute; and
b) the procedure in clauses 3.9.1 to clause 3.9.11 has concluded in
relation to the dispute without the dispute being resolved,
seller may notify buyer that it proposes to terminate this contract under
this clause 16.6 because the dispute remains unresolved.
16.6.7 If seller gives buyer a notice under clause 16.6.6 and the dispute remains
unresolved for a further 10 business days, seller may terminate this
contract by giving a notice to buyer. seller must give 5 business days’ notice of termination under this clause 16.6.7.
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16.6.8 If seller terminates this contract under this clause 16.6, buyer has no
liability to seller in relation to loss of future or prospective charges or
profits.
16.7 Consequences of termination
16.7.1 The termination of this contract does not affect any liability of a party to the
other party arising before termination.
16.7.2 In addition to the operation of clause 3.6.9, clause 12.4.1 and clause 14.4.3,
the following clauses have continuing operation and survive the expiry or
termination of this contract: 1.5, 1.6, 3.5, 3.6, 3.7, 3.9, 7.3, 7.4, 7.5, 7.6, 7.7,
7.8, 9, 11, 12, 13, 14, 16.8.
16.8 General termination assistance
16.8.1 Following the termination or expiry of this contract, at buyer’s request in a
notice, seller must provide reasonable transition assistance to buyer, including by making specified personnel and other seller’s personnel available for discussions with buyer and providing any information relating
to the products or services that is reasonably requested by buyer.
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Executed by the parties as an agreement
Executed for and on behalf of the Commonwealth
of Australia, as represented by [insert name of
buyer] ABN [insert ABN of buyer]
(Signature)
(Name)
(Position)
Date of execution: XX/XX/20XX
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Executed by [insert name of seller] ABN [insert ABN of seller]in accordance with section 127 of the Corporations Act 2001 (Cth)
(Signature)
(Name)
Director
(Signature)
(Name)
Director/Company Secretary (delete one)
Date of execution: XX/XX/20XX
65
Schedule A – Glossary
Term Meaning
acceptance in relation to a deliverable, confirmation by buyer that acceptance tests demonstrate the deliverable meets the acceptance criteria and specifications for the deliverable and that no defects are apparent in the deliverable
acceptance certificate in relation to a deliverable, a certificate substantially in the form of Schedule E, signed by buyer and seller, certifying that the deliverable complies with the acceptance criteria for the deliverable
acceptance criteria in relation to a deliverable:
(a) if there is an acceptance test plan that applies to the deliverable, the acceptance criteria for that deliverable in the acceptance test plan; or
(b) if there is no acceptance test plan applying to the deliverable, the acceptance criteria for the deliverable set out in Schedule C or, if no acceptance criteria are set out in Schedule C, the requirements for the deliverable set out in this contract
acceptance test plan a plan substantially in the form of Schedule D
acceptance tests in relation to a deliverable:
(a) if there is an acceptance test plan that applies to the deliverable, the acceptance tests for that deliverable in the acceptance test plan; or
(b) if there is no acceptance test plan applying to the deliverable, the acceptance tests for the deliverable set out in Schedule C or, if no acceptance tests are set out in Schedule C, such tests or other activities that buyer (acting reasonably) determines to assess whether the deliverable complies with the acceptance criteria for the deliverable
accountability body the Commonwealth Parliament (including Committees); a Commonwealth Minister; the Auditor-General (including the Australian National Audit Office); the Australian Privacy Commissioner; the Commonwealth Ombudsman; and any person (including a commission or inquiry) whose functions include reviewing, inquiring into, auditing or investigating buyer
accountability obligation any obligation under a law, requirement under Commonwealth policy or request by an accountability body for buyer to provide information relating to this contract
agency a corporate Commonwealth entity or a non-corporate Commonwealth entity (within the meaning of PGPA)
approval a confirmation by buyer given in a notice to seller that a document or action appears to meet the requirements of this contract but does not:
(a) limit seller’s responsibility to ensure the document or action meets the requirements of the contract; or
(b) waive any right buyer has under this contract if the document or action does not meet such requirements.
audit includes investigate and/or review
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Term Meaning
business day any day other than a Saturday, a Sunday or a public holiday in the Australian Capital Territory
buyer the agency named as buyer on the first page of this contract or, if other agency commences performing the functions to which this contract relates because of a machinery of government change, that agency
buyer’s address the address of buyer noted on the first page of this contract
buyer’s confidential information
information in one or more of the following categories:
(a) information described in Item 27 of Schedule B;(b) information of buyer held or accessed by seller that is personal
information, security classified information (including with delimiting markers), information protected by statutory confidentiality provisions, information marked “confidential” (or marked in some other way that indicates it is confidential) and/or information that relates to buyer’s customers, commercial dealings, technology systems, finances, compliance programs and/or security systems and/or procedures;
(c) information developed by seller using information in one of the above categories,
but does not include information in either of the following categories:
(d) information in the public domain (otherwise than as a consequence of a breach of this contract);
(e) information independently held or developed by seller without reference or reliance on any information of buyer held or accessed by seller
buyer’s data any of the following held or accessed by seller in relation to this contract:
(a) buyer’s confidential information;
(b) other information or document provided by buyer to seller;(c) information developed by seller that incorporates, modifies or supplements
buyer’s confidential information or other information or document provided by buyer to seller
buyer’s representative the person named as buyer’s representative in Item 7 of Schedule B, as updated in accordance with clause 3.1.2
buyer’s personnel employees, contractors, customers and visitors of buyer and other persons providing services to buyer at buyer’s premises
buyer’s premises any business or office premises occupied by buyer to carry out its functions
buyer’s systems any computer system used by buyer (including cloud systems) to carry out its functions
charges the charges payable by buyer for seller’s provision of deliverables under this contract, as specified in Schedule F
commencement date the date in Item 4 of Schedule B; or if no date is specified, the date this contract is signed by both parties
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Term Meaning
commercial exploitation any commercial exploitation, but does not include any use, support, maintenance, modification, enhancement or other activity in relation to the material, where such activities are conducted by a service provider engaged by buyer or another agency to provide services to buyer or another agency on commercial terms
confidential information buyer’s confidential information or seller’s confidential information
conflict of interest any circumstance where seller or one or more seller’s personnel:(a) currently has;
(b) is likely in the future to have; or
(c) is likely to be perceived by a reasonable fair-minded third party to have now or in the future,
a personal interest or a duty to a third party that conflicts with the diligent and proper performance of this contract for buyer’s benefit
contract delivery licence a world-wide, royalty-free, non-exclusive, non-transferable licence for the term (including the right to sub-license) to use, reproduce, adapt, modify and communicate the material solely for the purpose of performing this contract
contract material material that is delivered or required to be delivered to buyer for the purpose of or as a result of performing its obligations under this contract and includes existing material and new material
contract representative buyer’s representative and seller’s representative
correctly rendered invoice
an invoice that:
(a) is correctly addressed in accordance with Item 25 of Schedule B;(b) contains amounts calculated in accordance with Schedule F;
(c) relates only to the products and/or services that have been delivered to buyer in accordance with this contract;
(d) contains sufficient detail to enable buyer to identify:
(i) the applicable deliverable or delivery milestone;
(ii) when the deliverable was supplied;
(iii) the amount payable in respect of each item;
(e) if submitted in relation to a deliverable that requires acceptance, is accompanied by all relevant acceptance certificates;
(f) sets out the amount paid by buyer as GST for taxable supplies made under this contract;
(g) is a valid tax invoice in accordance with the GST Act; and
(h) meets any other requirement specified in Schedule F, or as otherwise agreed by the parties in writing
cyber attack any action taken through the use of computer networks or any unauthorised access to or use of a computer system that is intended to have, is likely to have or does have an adverse effect on the security or reliability of data on the system or the accessibility of the system, and includes denial of service attacks
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Term Meaning
defect a deliverable, or any part of a deliverable, where one or more of the following apply:
(a) it does not conform to specifications;
(b) it has an error;
(c) it is damaged or lost;
(d) it is not fit for buyer’s purposes, as described in this contract;
(e) it adversely affects buyer’s systems;
(f) it otherwise does not comply with the requirements of this contract
delay acceptance of a deliverable or achievement of a delivery milestone later than the due date
deliverable any product, service or other material required to be provided by seller under this contract
delivery time the time by which seller must deliver a deliverable, as specified in Schedule C
delivery location the location to which seller must deliver a deliverable, as specified in Schedule C
delivery milestone a milestone for acceptance of one or more deliverables and/or completion of other activities as specified in Schedule C
documentation the documentation (including publications and aids) required to be provided by seller under this contract, including that information specified in Schedule C
dispute an issue that has been the subject of a notice under clause 3.9.7
due date in relation to a deliverable or a delivery milestone, the date by which the deliverable must be accepted, or the delivery milestone must be achieved, as specified in Schedule C
end date the date in Item 5 of Schedule B or if no date is specified, but a time period is specified, the date that is the last day of that time period, commencing on the commencement date
environmental management system
has the meaning given to the term in the ICT sustainability plan
existing material any material, other than new material, in which a party or a third party holds intellectual property rights, and which is made available by a party for the purpose of this contract
general interest charge rate
the general interest charge rate determined under section 8AAD of the Taxation Administration Act 1953 (Cth) on the day the payment is due, expressed as a decimal rate per day
government purposes any purpose for which the Commonwealth of Australia may make laws or take executive action, including the provision of shared services, but does not include commercial exploitation
GST Act the A New Tax System (Goods and Services Tax Act) 1999 (Cth)
hardware hardware required to be provided by seller to buyer under this contract
69
Term Meaning
hardware support period the period for provision of hardware support services, as specified in Schedule C
hardware support services
the preventative maintenance services, defect correction services and other hardware support services required to be provided by seller in accordance with clause 6.2 and as specified in Schedule C
harmful code any virus, denial of service, disabling or malicious device or code, ‘worm’, ‘trojan’, ‘time bomb’, or other harmful or destructive code, but does not include any ‘software lock’ or other technical mechanism that is included to manage the proper use of any software
ICT information and communications technology
ICT sustainability plan the Australian Government’s ICT sustainability plan 2010-2015 or any successor plan
Indigenous enterprise an organisation that is 50 per cent or more Indigenous owned that is operating a business
individual contractor (a) an individual engaged by seller who is managed and performs duties in a similar way to seller’s employees
(b) an individual engaged by a seller group company who is managed and performs duties in a similar way to seller group company’s employees
intellectual property rights
all intellectual property rights, whether or not such rights are registered or capable of being registered, including but not limited to, the following:
(a) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks), and domain names;
(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere
installation services the services required to install hardware by seller so the hardware is operable in accordance with the specifications, as set out in Schedule C
invoice address the address for invoices specified in Item 25 of Schedule B, or any substitute address notified by buyer to seller at any time
issue (a) a disagreement between the parties about the correct interpretation of this contract; and/or
(b) a failure by a party to comply with its obligations under this contract; and/or
(c) a breach of a warranty given by a party under this contract
law any applicable statute, regulation, by-law, ordinance or subordinate legislation, any other instrument of a legislative character and court rules in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government, and includes the common law and rules of equity as applicable from time to time
legal services directions the Legal Services Directions made under section 55ZF of the Judiciary Act 1903 (Cth)
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Term Meaning
licence a world-wide, royalty free, non-exclusive licence including the right to sub-license
material any software, firmware, data, documented methodology or process, tools, object libraries, documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any intellectual property rights
maximum charges payable
the GST inclusive amount specified as the maximum charges payable in Schedule F
moral rights (a) a right of attribution of authorship;
(b) a right not to have authorship falsely attributed; or
(c) a right of integrity of authorship
new material any material created by seller that is delivered or required to be delivered to buyer for the purpose of or as a result of performing its obligations under this contract
notice a communication that meets the requirements of clause 3.2.1
notify to send a notice
open source software software available under a licence which meets the criteria of the Open Source Definition published by the Open Source Initiative at http://www.opensource.org, and includes the forms of creative commons licences published as the Creative Commons Legal Code for Australia at http://www.creativecommons.org
option period the period (if any) specified in Item 6 of Schedule B
party buyer or seller
payment milestone a payment milestone specified in Schedule F that is payable when the applicable payment milestone has been achieved
personal information the same meaning as in the Privacy Act 1988 (Cth)
PGPA Public Governance, Performance and Accountability Act 2013 (Cth)
preventative maintenance services
the preventative maintenance services required to be provided by seller in accordance with clause 6.2 and as specified in Section 3 of Schedule C
product a hardware product to be sold by seller to buyer under this contract, as specified in Schedule C
seller the person named as seller on the first page of this contract
seller group company a “related body corporate” of seller (within the meaning of that term in the Corporations Act 2001 (Cth))
seller’s confidential information
information described in Item 28 of Schedule B, any information provided by buyer to seller under this contract in relation to seller’s security systems and processes but not the total value of this contract or any other information relating to this contract to which an accountability obligation applies
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Term Meaning
seller’s personnel a subcontractor and officers, employees or individual contractors of seller, a seller group company or subcontractors who:
(a) are involved in the delivery of services under this contract and/or the performance of seller’s obligations under this contract; and/or
(b) have access to buyer’s premises, buyer’s systems or buyer’s data in relation to the performance of this contract
seller’s premises any premises of seller (including the premises of seller’s personnel) where buyer’s data is stored or where components of seller’s systems are located
seller’s records any records that seller is required to maintain under this contract
seller’s representative the person named as seller’s representative in Item 7 of Schedule B, as updated in accordance with clause 3.1.2
seller’s systems any system of seller (including the systems of seller’s personnel) that accesses, transmits or stores buyer’s data
service a service to be sold by seller to buyer under this contract, as specified in ScheduleC
service levels the standards of service which seller must achieve in providing the deliverables to buyer as set out in Schedule C
shared services the provision of products and/or services by an agency to another agency (whether or not a payment is made in relation to the provision of the products and/or services)
specifications the technical, functional, non-functional and other operational or performance characteristics required of a deliverable, as specified in Schedule C
specified personnel seller’s personnel who are named at Item 11 of Schedule B, as amended in accordance with clause 4.2.5
specified personnel unavailability period
10 business days or a longer period specified in Item 14 of Schedule B
start date the date for commencement of a particular service, as specified in Schedule C
statute law any applicable statute, regulation, by-law, ordinance or subordinate legislation, any other instrument of a legislative character and court rules in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government
subcontract a contract or arrangement between seller and a third party for the delivery of products or services to buyer under this contract, but does not include a contract or arrangement between seller and a seller group company or between seller and an individual contractor
subcontractor a party to a subcontract, other than seller
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Term Meaning
sub-license the right to allow any person to exercise any of the rights including do any of the activities authorised under the licence and, in relation to buyer, includes the right to engage any person including outsource suppliers to do any such activities on behalf of buyer without consent and without any financial consequences for any person
supported hardware the hardware specified in Section 3 of Schedule C to be supported by seller under this contract
taxes all taxes, duties and government charges
term defined in clause 2.1.1; subject to modification in accordance with clause 2.1.2
third party any person other than buyer or seller
training services the training services specified in Schedule C
use in relation to existing material (other than buyer’s existing material) includes buyer using, reproducing, adapting, modifying, communicating that material
warranty period in relation to a deliverable, the warranty period for that deliverable specified in Schedule C
WGEA Workplace Gender Equality Act 2012 (Cth)
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Schedule B– Contract Details
ItemNumber
Related clause
Subject Description
Purpose, interpretation and technical contract issues
1 1.4 agency access [if other agencies are not able to access this contract insert “no agency access, clause 1.4 does not apply” otherwise insert “clause 1.4 applies”]
2 1.6 seller as trustee [“not applicable” or “seller is entering this contract in its capacity as trustee of the [insert name] trust”]
3 1.7.2 seller to purchase products and services on behalf of buyer
[“not applicable” or “seller is authorised to purchase the following products and services on behalf of buyer on the following conditions [insert detailed conditions]”]
Contract term
4 2.1.1 commencement date [insert commencement date or “the date that this contract is signed by both parties”]
5 2.1.1 end date [insert end date, or if the contract has a particular term (for example, 3 years) insert that time period]
6 2.1.3 option period [insert “not applicable” or the total option period]
Contract governance
7 3.2.1 contract representatives
buyer’s representativename:
position:
address:
email:
cc email:
seller’s representativename:
position:
address:
email:
cc email:
8 3.5.3 prohibition on seller referencing contract
[“not applicable” or “clause 3.5.3 does not apply – buyer may not publish contract details”]
9 3.9.8 mediation [“not applicable” or specify what disputes must be referred to mediation if required by a party and the full process for the mediation]
10 3.9.9 expert determination [“not applicable” or specify what disputes must be referred
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ItemNumber
Related clause
Subject Description
for expert determination if required by a party and the full process for the expert determination]
Personnel
11 Glossary and 4.2.1
specified personnel Name Level Role
14 Glossary and 4.2.2b)
specified personnel unavailability period
[insert “10 business days” or a longer period of time]
15 4.3.1 approved subcontractors
Name ABN Role
18 4.5.1 security clearances and other clearances
[“not applicable” or specify requirements for security clearances and any other clearance processes that must be completed by seller’s personnel such as Employment Suitability Clearance]
Acceptance
19 8.2 acceptance test plan [“not applicable” or “plan to be provided to buyer for approval no later than [insert] business days after the commencement date”]
Intellectual property and moral rights
20 9.2.3 IP ownership model for new material
Model A (buyer ownership) ☐Model B (seller ownership) ☐
Buyer assistance to seller
21 10.1.1 Access to buyer material
[insert “not applicable” or insert details of buyer material to be provided to seller]
22 10.2.1 Use of buyer facilities [insert “not applicable” or insert details of buyer facilities that can be used by seller]
23 10.3.1 Access to buyer facilities
[insert “not applicable” or insert details of buyer facilities that seller can access]
24 10.4 buyer site preparation [insert “not applicable” or details of the site specifications that buyer must meet in preparing the site]
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ItemNumber
Related clause
Subject Description
Charges and payment
25 11.2.1 invoice address name:
position:
address:
email:cc email:
Information management
26 12.1.2 privacy policies and guidelines
[insert “not applicable” or specify any privacy policies and/or guidelines that seller must comply with]
27 12.2 and Glossary
buyer’s confidential information
[insert “In accordance with definition of buyer’s confidential information and the following: [insert any specific information to come within the definition of buyer’s confidential information] OR insert “in accordance with definition of buyer’s confidential information”]
28 12.2 and Glossary
seller’s confidential information
[insert “In accordance with definition of seller’s confidential information and the following: [insert any specific information to come within the definition of seller’s confidential information] OR insert “in accordance with definition of seller’s confidential information”]
29 12.3.1 requirements for holding buyer’s data
[insert any additional requirements on seller for holding buyer’s data, or insert “no additional requirements’]
30 12.3.8 deletion of buyer’s data
[insert “not applicable” unless seller is permitted to retain buyer’s data after the expiry or termination of this contract – in which case specify what is permitted and any conditions]
31 12.5 accessing buyer’s confidential information outside Australia
[insert “not applicable” unless seller is permitted to transfer, store or access buyer’s confidential information outside Australia – in which case specify what is permitted and any conditions]
Security
32 13.1.1 and 13.1.2
buyer’s security policies
[insert “not applicable” or specify any security policies that seller must comply with]
Liability
33 14.2.1 and 16.1.3
limitation of liability [insert “not applicable” or if liability of the parties is limited, specify the amount of the limitation]
34 14.4.1b) public liability insurance
[specify value]
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ItemNumber
Related clause
Subject Description
35 14.4.1c) professional indemnity insurance
[specify if required and, if so, the value]
36 14.4.1d) product liability insurance
[specify if required and, if so, the value]
37 14.4.1e) other insurance [specify if any other insurance required and, if so, type and the value]
38 14.4.3 period of insurance [specify a period between 2 years and years after the expiry or termination of this contract or state: ‘in accordance with clause 14.4.3]
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Schedule C – Requirements
Products
Section 1 Hardware supply (clause 5.1)
Description of hardware – [list all hardware being supplied including name, version number, manufacturer of hardware etc]
hardware specifications – [insert the specifications for the hardware that seller must meet or state ‘in accordance with Attachment 1’]
documentation – [insert details of the documentation to be provided with the hardware]
warranty period – [insert warranty period for the hardware]
delivery location – [insert details of the delivery location]
delivery time – [insert the delivery time or state ‘in accordance with Attachment 2’]
acceptance criteria – [insert details of acceptance criteria or state: ‘in accordance with acceptance test plan’]
acceptance testing – [insert details of acceptance testing or state ‘in accordance with acceptance test plan’]
buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4”]
due date(s) – [insert due date(s) for seller achieving acceptance of the deliverable(s) or state ‘in accordance with Attachment 2’]
time for transfer of title to buyer – [insert either ‘upon acceptance’ or ‘upon full payment’]
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Services
Section 2 Installation services (clause 6.1)
start date – [insert start date for services]
specifications – [insert the details of the installation services including any documentary deliverables]
service levels – [insert details of any service levels]
warranty period – [insert warranty period for the services]
buyer assistance – [insert details of any buyer assistance that will be provided]
removal of existing hardware or other equipment – [if applicable. For example, include details for removal, disposal or both of any existing buyer equipment by seller, including the items to be removed and asset identification details (eg. barcode or other asset numbers), timing for removal, process for secure destruction/disposal – particularly if the hardware has been used to store or process data].
delivery location – [insert details of the delivery location]
delivery time – [specify the delivery time or state ‘in accordance with Attachment 2’]
acceptance criteria – [insert details of acceptance criteria]
acceptance testing – [insert details of acceptance testing]
buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4”]
due date(s) – [insert due date(s) for seller achieving acceptance of the deliverables or state ‘in accordance with Attachment 2’]
Section 3 Hardware support services (clause 6.2)
start date – [insert start date for services]
supported hardware – [insert details and include asset management numbers / barcodes of each item of hardware if applicable]
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specifications for preventative maintenance services – [insert details of preventative maintenance service requirements including the times or frequency of services]
specifications for defect correction services – [insert details of defect correction service requirements including the times or frequency of services]
specifications for helpdesk service – [insert details of any helpdesk services]
storage of seller materials – [if materials cannot be stored on buyer site (see clause 6.2.18), specify details here. Otherwise state: ‘no change to clause 6.2.18’]
maintenance records – [if seller must keep full records of services, specify details of records here (e.g. defects reported including time reported, defects detected including time reported, defect correction services provided including time started and completed, parts replaced and repaired), or insert: ‘no change to clause 6.2.19’]
service levels – [insert details of service levels including response times,
defect resolution times etc]
Section 4 Training services (clause 6.3)
start date – [insert start date for services]
specifications – [insert the details of services including any documentary deliverables]
service levels – [insert details of any service levels]
warranty period – [insert warranty period for the services]
buyer assistance – [insert details of any buyer assistance that will be provided]
delivery location – [insert details of the delivery location]
delivery time – [specify the delivery time or state ‘in accordance with Attachment 2’]
acceptance criteria – [insert details of acceptance criteria]
acceptance testing – [insert details of acceptance testing]
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buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4”]
due date(s) – [insert due date(s) for seller achieving acceptance of the deliverables or state ‘in accordance with Attachment 2’]
Attachment 1 (Specifications)
[if there are detailed specifications, include details here]
Attachment 2 (Schedule)
[if there are a significant number of deliverables and delivery milestones, include details here. Below is an example of tables that could be used]
Deliverables
deliverable reference # deliverable description delivery date due date for acceptance
delivery milestone reference #
delivery milestone description
conditions for achieving the delivery milestone
delivery milestone due date
[generally the conditions for achieving a delivery milestone would be achieving acceptance of one or more deliverables e.g. acceptance of deliverables X,Y and Z]
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Schedule D– Form of Acceptance Test Plan
Part A – General
Scope of plan [describe what deliverables or delivery milestones are covered by this plan]
Testing methodology
seller tests
Test environment – seller tests
Test data for seller tests
buyer’s right to observe and receive test reports for seller tests
[if buyer has the right to observe and review test reports for seller’s tests, specify those rights here]
seller’s obligation to give buyer notice of seller tests
[insert period of notice that seller has to provide to buyer before seller conducts acceptance testing]
Timetable for seller tests
buyer tests
Test environment – buyer tests
Test data for buyer tests
Timetable for buyer tests
Resources required for buyer tests
[specify if a particular minimum number of buyer resources or particular skillsets are required for buyer tests]
Minimum time required in schedule for buyer tests
[if buyer requires a minimum period for testing, specify that period here]
Periods when buyer testing cannot be undertaken
Documentation requirements for testing and logging requirements for defects
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Part B – Deliverables/Delivery Milestones
[complete a table in the form below for each deliverable or delivery milestone]
deliverable/delivery milestone name and identification number
acceptance criteria
specifications
Prerequisites for seller testing [this could include the submission of documentation by buyer to seller]
Prerequisites for buyer user acceptance testing
[this would normally include the successful completion of buyer testing, the resolution of defects and the provision of seller’s test reports to buyer]
Prerequisites for acceptance into production
Post production validation testing
[specify whether this is required and seller’s obligations if this testing identifies defects]
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Schedule E – Form of Acceptance Certificate
Acceptance Certificate
This is an acceptance certificate for the deliverable(s)/delivery milestone(s) identified below. The certificate is issued under the contract between [name of buyer] ABN [ABN of buyer] (buyer) and [name of seller] ABN [ABN of seller] (seller) dated
[date of contract] reference [insert buyer’s reference number for contract] (contract).
In this certificate, terms in bold italic have the same meaning as in the contract, unless otherwise defined in this certificate.
Deliverable/delivery milestone
deliverable/delivery milestone description reference number
seller certification
certification signed on behalf of buyer date
seller certifies that, having conducted appropriate testing, the deliverable(s)/delivery milestone(s) identified above meet the requirements of the contract
[signature, name and position]
buyer acceptance
acceptance signed on behalf of seller date
buyer accepts the deliverable(s)/delivery milestone(s) identified above
[signature, name and position]
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Schedule F– Charges [Insert details of all relevant charges, costs or fees for the performance of the products and/or services and when each item is payable. All charges specified in this schedule are exclusive of GST unless otherwise specified]
Maximum Charges Payable
Clause references
11.6.1, 16.4.3 – The maximum value of this contract is $[insert] (inclusive of GST)
Charges for products
Applicable products
[specify the products to which the charges apply e.g. hardware]
Charges
product description unit charge (GST exclusive) number of units
e.g. hardware description
Total charges [insert $ ex GST]
Charges for services
Fixed service charges
[specify the services to which the charges apply e.g. hardware support services]
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service description charge (GST exclusive)
E.g. hardware support services Year 1
E.g. installation services
Total charges
Time based charges
Applicable services
[specify the services subject to time based charges]
Time based pricing
[insert either “not applicable” or “seller may invoice on a time basis up to a total
maximum amount of [insert] ex GST]
Rates
The following rates apply for seller’s personnel:
Level/position Daily rate (GST exclusive) Hourly rate (ex GST)
Expenses
[set out any permitted expenses or insert ‘seller is not entitled to be reimbursed for expenses’]
Invoicing frequency
seller may invoice [insert frequency]
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Variation to pricing
[if charges are subject to an adjustment mechanism, for example, the consumer price index, set out the mechanism or insert “not applicable”]
87
Charges for payment milestones
Applicable products and/or services
[specify the products and/or services that will be charged using payment milestones]
payment milestone reference number
payment milestone description
conditions for achieving the payment milestone
payment milestone amount (ex GST)
[e.g. #1] [e.g. achievement of delivery milestone 1]
Total charges [insert $ ex GST]
charges variation formula
charge variation formula (clause 16.3.2)
[if there is pricing mechanism for contract variations insert here or state “not applicable”]
service rebates
Applicable services
[insert details of the service rebates payable for failure to meet the service levels in Schedule C, including the method of calculating the service rebates and any caps on the service rebates]
88
Schedule G – Form of Change OrderThis is a change order to the contract between [name of buyer] ABN [ABN of buyer] and [name of seller] ABN [ABN of seller] dated [date of contract] reference [insert
buyer’s reference number for contract] (contract).
In this change order, terms in bold italic have the same meaning as in the contract, unless otherwise defined in this change order.
Part A
[to be completed by party proposing change]
Change order number [insert reference number]
Date proposed
Description of proposed change
Reason for proposed change
Effect on delivery times, risk, implementation, documentation and users of the system
Effect on charges
Effect on service levels
Part B
Contract clauses affected
Marked up clauses showing proposed changes
Date of effect of changes
89
Agreed by the parties
Signed on behalf of buyer
(Signature)
(Name and position)
Date:
signed on behalf of seller
(Signature)
(Name and position)
Date:
90
Schedule H – Form of Agency OrderTo: [name of seller’s representative],
[name of seller] ABN [ABN of seller] (seller)
This is an agency order under clause 1.4 of the contract between seller and [name of
buyer] ABN [ABN of buyer] dated [date of contract] reference number [buyer’s
reference number] (principal contract).
[name of ordering agency] ABN [ABN of ordering agency] (ordering agency) orders
the following products and services from seller, on the terms of the principal contract unless otherwise agreed by seller and ordering agency:
[specify products and/or services ordered].
seller and ordering agency must enter into a separate contract for the provision of
the products and/or services that have been ordered.
All communications regarding this order should be sent to [insert name and contact
details for ordering agency’s representative].
Executed on behalf of the Commonwealth
of Australia, as represented by [insert name
of ordering agency] ABN [insert ABN of
ordering agency]
Signature:
Name and position:
Date:
91
Schedule I – Form of Deed of ConfidentialityTHIS DEED POLL is made on [date]
for the benefit of the Commonwealth of Australia represented by [name of buyer] ABN [buyer’s ABN], of [buyer’s address] (buyer)
by
[name of person signing deed] of [address of person signing deed] (confidant)
as an employee of
[name of seller] ABN [seller’s ABN] (seller)
Background
A seller is providing products and/or services to buyer under a contract dated [date of contract] relating to [subject of contract] reference number [add buyer’s reference number for contract] (principal contract).
B seller has confidentiality obligations under the principal contract in relation to buyer’s confidential information.
C As an employee of seller involved in the performance of the principal contract, confidant may become aware of buyer’s confidential information.
D To ensure buyer’s confidential information remains confidential, confidant has agreed to sign this deed poll for the benefit of buyer.
Operative part
3 Definitions
3.1 In this deed poll, terms in bold italics not otherwise defined have the
following meanings:
(a) buyer’s confidential information means information:
i. of buyer that is personal information, security classified information
(including with delimiting markers), information protected by statutory
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confidentiality provisions, information marked “confidential” (or
marked in some other way that indicates it is confidential) and/or
information that relates to buyer’s customers, commercial dealings,
technology systems, finances, compliance programs and/or security
systems and/or procedures; and
ii. within the definition of the term “buyer confidential information” in the
principal contract, that is or was held or accessed by confidant, but does not include
information:
i. in the public domain (otherwise than as a breach of this deed poll or
the principal contract); or
ii. independently held or developed by confidant without reference or
reliance on any information of buyer.
(b) personal information has the same meaning as in the Privacy Act 1988 (Cth).
4 Confidant obligations
4.1 Unless otherwise required by law, confidant must:
(a) keep buyer’s confidential information confidential;
(b) not use or disclose buyer’s confidential information for any purpose other than the performance of the principal contract;
(c) not publicly disclose buyer’s confidential information except with the express written consent of buyer; and
(d) if requested by buyer, immediately return all buyer’s confidential information in confidant’s possession to buyer or destroy or delete such buyer’s confidential information (and provide a statutory declaration to buyer that this has been done).
4.2 confidant must keep buyer’s confidential information secure.
4.3 confidant must notify buyer in writing immediately if he or she is required
by law to disclose any of buyer’s confidential information or if buyer’s confidential information is lost, stolen or accessed by an unauthorised
person.
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4.4 confidant acknowledges that damages may not be an adequate remedy for
a breach of this deed poll and that buyer may be entitled to injunctive relief.
5 Conflict of interest
5.1 confidant warrants that he or she has no conflict of interest in relation to the
performance of the principal contract, other than as notified in writing to
buyer.
6 Governing law
6.1 This deed poll is governed by the law of the Australian Capital Territory and
confidant agrees to submit to the non-exclusive jurisdiction of the Courts of
the Australian Capital Territory in respect of all matters relating to this deed
poll.
Executed as a Deed Poll
Signed, Sealed and Delivered by
[name of confidant] in the presence of:
Signature of witness
Name of witness
Signature of confidant
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