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Stationery and Office Supplies Whole of Australian Government Arrangement

FIN/018/16 Appendix D – Draft Head Agreement

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Head Agreement for the provision of

Stationery and Office Supplies

Between

Commonwealth of Australia as represented by the Department of Finance (Finance)

and

[Insert Contractor] (Contractor)

FIN/018/16 Appendix D – Draft Head Agreement i

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Contents

1 Definitions and interpretation 1

1.1 Definitions 1 1.2 Interpretation 11

2 Structure of this Document 12

3 Scope of Head Agreement 13

4 Nature of the Panel 13

5 Role of Finance 14

6 Standing Offer to Entities by the Contractor 15

6.1 Standing Offer 15 6.2 Existing arrangements 16

7 Term 16

7.1 Head Agreement Term 16 7.2 Consideration in Exercising Extension 17 7.3 Term of Entity Deed 17 7.4 Term of an Order 17

8 Entity Deeds 17

8.1 Entity Deed 17

9 Orders 18

9.1 General 18 9.2 Ordering system 19 9.3 Process 19 9.4 Request for Quotations 19 9.5 Acceptance of Orders 20 9.6 Termination of an Order 21

10 Service Levels 21

10.1 Application of Service Levels 21

11 Payment 21

11.1 Charges 21 11.2 Payment terms 21 11.3 Invoices 22 11.4 Adjustment for incorrect Prices 23 11.5 Invoices for Non-Mandatory Cost Plus Products 23 11.6 Recovery of amounts owing by the Contractor 23

12 Central Administration Fee 23

13 Taxes 24

14 GST 25

14.1 Interpretation 25

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14.2 GST gross up 25 14.3 Reimbursements 25 14.4 Exclusion of GST from calculations 25 14.5 Adjustments 25 14.6 Tax invoice 26

15 Stamp Duty 26

16 Intellectual Property Rights 26

16.1 Operating Existing Material 26 16.2 Intellectual Property Rights in New Material 26 16.3 Intellectual Property Warranty 27 16.4 Remedy for breach of Intellectual Property warranty 27 16.5 Ownership of contract 28 16.6 Moral Rights 28 16.7 Specified Acts 28

17 Confidentiality 28

17.1 Disclosure of Confidential Information 28 17.2 Written undertakings 29 17.3 Exceptions to obligations 29 17.4 Obligations on disclosure 29 17.5 Announcements 30

18 Privacy 30

18.1 Application of the clause 30 18.2 Definitions 30 18.3 Obligations 30 18.4 State and Territory Laws 31

19 Samples and Demonstrations 31

20 Warranties 32

20.1 Contractor warranties 32 20.2 Rectification 35 20.3 Third Party Warranties 35 20.4 Effect of warranties 35

21 Guarantees 36

21.1 Performance Guarantees 36 21.2 Financial Undertaking 37

22 Indemnity 37

22.1 Contractor's Indemnity 37 22.2 Contractor's Intellectual Property Rights and Moral Rights Indemnity 38 22.3 Customer's obligations 38 22.4 Contractor's obligations 39 22.5 Disputes regarding Intellectual Property 39 22.6 Rights held on trust 39 22.7 Mitigation 39

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23 Insurance 40

23.1 Obligation to maintain insurance 40 23.2 Proof of Insurances 40

24 Continuous Improvement, Efficiencies, Quality Innovation and Risk

Management 40

24.1 General 40 24.2 Quality Management 41 24.3 Innovation 42 24.4 Risk Management 42

25 Personnel 43

25.1 General 43 25.2 Illegal Workers 43 25.3 Key Personnel 44 25.4 Subcontracting 44

26 Governance Framework 45

26.1 Contract Management 45 26.2 Head Agreement Management Meetings 47 26.3 Annual Reviews 47

27 Reporting 47

27.1 Head Agreement Reporting Requirements 47 27.2 Entity Reporting Requirements 48

28 Books and records 49

28.1 Maintenance of Records 49 28.2 Subcontractor requirements 49 28.3 Survival 49 28.4 Archival Requirements 49 28.5 Costs 49

29 Access to Customer’s Site 50

30 Audit and access 50

30.1 Right to conduct audits 50 30.2 Access by Finance or a Customer 51 30.3 Conduct of audit and access 51 30.4 Costs of audit - default provision 52 30.5 Costs of audit - inaccurate Prices in invoices and Service Levels not met52 30.6 Auditor-General, Privacy Commissioner and Ombudsman 52 30.7 Contractor to comply with Authorised Investigator's requirements 52 30.8 No restriction 52 30.9 No reduction in responsibility 53 30.10 Consequences of audit 53 30.11 Survival 53

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31 Security 53

31.1 Compliance with Finance and Customer requirements 53 31.2 Security clearance 54 31.3 Protection of Customer data 54 31.4 Misuse of Finance or Customer information 55

32 Compliance with Laws 55

33 Commonwealth Government policy 55

33.1 Policy 55 33.2 Fraud 55 33.3 Anti-discrimination 56 33.4 Environment 56 33.5 Hazardous Substances 56 33.6 Indigenous Procurement Policy 57 33.7 Australian Industry Participation Plan (AIP Plan) 57 33.8 AIP Plan Reporting 58 33.9 Right to publicise AIP Plan and AIP Report information 58 33.10 Access by foreign service providers 58 33.11 Compliance with Work Health and Safety 59

34 Export Approvals and Imported Supplies 59

35 Standards and Codes 59

36 Review and testing 60

37 Statement of Requirement 61

37.1 Creation of the Statement of Requirement 61 37.2 Limitation to use of the SOS Products and Services 61 37.3 Capped Prices 61 37.4 Price Annual Review 62 37.5 Price Adjustment for Volatile Products 64 37.6 Changes to Deliverables set out in the Statement of Requirement 66 37.7 Benchmarking 67

38 Transition-In 69

39 Transfer of title and risk 69

40 Delivery 70

40.1 Delivery 70 40.2 Cooperation with Personnel 70 40.3 Cooperation with other contractors 70 40.4 Extension of time 71 40.5 Customer Supplied Items 72 40.6 Customer Assistance 73

41 Documentation 73

42 Conflict of Interest 74

42.1 Warranty that there is no Conflict of Interest 74

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42.2 Notification of a Conflict of Interest 74

43 Termination 74

43.1 Termination by Finance or the Customer of the Head Agreement, any Entity

Deed or Order for default 74 43.2 Termination and reduction for convenience 76 43.3 After termination 76 43.4 Consequences of Termination 77 43.5 Transition-Out 78

44 Variations 79

44.1 Variation to Head Agreement 79 44.2 Variations to an Entity Deed 80 44.3 Variations to an Order 81

45 Dispute Resolution 81

45.1 No arbitration or court proceedings 81 45.2 Notification 81 45.3 Parties to resolve Dispute 81 45.4 Appointment of mediator 82 45.5 Role of mediator and obligations of parties 82 45.6 Confidentiality 82 45.7 Costs 82 45.8 Termination of process 82 45.9 Breach of this clause 82

46 Administration 82

46.1 Representatives 82 46.2 E-commerce 83

47 Notices and other communications 83

47.1 Service of Notices 83 47.2 Address for Notices 84 47.3 Change of Address 85 47.4 Deemed Receipt 85

48 Relationship 85

48.1 General obligations of the parties 85 48.2 Limitation of relationship 85

49 General 86

49.1 Language and Measurement 86 49.2 Approvals and consents 86 49.3 Costs of contracting 86 49.4 Further action 86 49.5 Assignment and novation 86 49.6 Waiver 87 49.7 Severability 87 49.8 Entire agreement 87

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49.9 Rights are Cumulative 87 49.10 No merger 87 49.11 Recovery of moneys due to the Customer 87 49.12 Survival 88 49.13 Counterparts 88 49.14 Governing Law and jurisdiction 88


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Date

Parties

Commonwealth of Australia as represented by the Department of Finance ABN 61 970 632 495 (Finance)

The Contractor specified in Annexure A (Contractor)

Background

A Finance has undertaken a Request for Tender to establish a standing offer for the provision of Stationery and Office Supplies to the whole of Australian Government.

B The Contractor has fully informed itself on all aspects of the work required to be performed and has offered to enter into a standing offer to supply Stationery and Office Supplies to Entities.

C The Contractor has represented to Finance in respect of this Head Agreement, and represents to each Customer in respect of each Entity Deed and Order, that it has the ability to supply the Deliverables including the requisite skills, qualifications and experience to perform all work required so as to meet the requirements of each Order.

D Finance has agreed to enter into this Head Agreement with the Contractor, and the Contractor has agreed to enter into this Head Agreement with Finance, by which the Contractor offers to provide the Deliverables to Entities.

E If an Entity wishes to procure Deliverables from the Contractor it will enter into an Entity Deed with the Contractor which will set out the operational arrangements between that Entity and the Contractor.

F Once the Entity and the Contractor have entered into an Entity Deed, the Entity may place Orders with the Contractor.

1 Definitions and interpretation

1.1 Definitions

In this Head Agreement:

Accept means that a Product is considered acceptable by the Customer,

through inspection or a test (Tested Item) is acceptable to the Customer and

has been accepted by the Customer in accordance with clause 36(c).

Accepted and Acceptance have corresponding meanings.



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AIP Plan means the Australian Industry Participation Plan in Annexure F

(Australian Industry Participation Plan) to this Head Agreement, or any

replacement AIP Plan referred to in clause 33.7(e).

AIP Plan Implementation Report means a report on its performance of the

AIP Plan provided by the Contractor to Finance in accordance with clause

33.8(a) or 33.8(c).

AIP Plan Implementation Report Requirements means the AIP Plan

Implementation Report Requirements set out in the AIP Plan User Guide.

AIP Plan User Guide means the User Guide for Australian Industry

Participation Plans in Australian Government procurement published by the

Department of Industry a copy of which can be obtained from the internet site

http://www.industry.gov.au/industry/IndustryInitiatives/AustralianIndustryPartici

pation/Pages/AIP-Plans-for-Commonwealth-Government-Procurement.aspx(as

at the Commencement Date).

Annexure means each of the Annexures to this Head Agreement.

Applicable WHS Law means the WHS Act and any corresponding work health

and safety law (as defined in section 4 of the WHS Act).

Approved Third Party Provider means any third party service provider to the

Commonwealth, authorised by Finance, to obtain Services from the Contractor

under this Head Agreement, as notified to the Contractor by Finance from time

to time.

Auditor-General means the Auditor-General for the Commonwealth.

Australian Accounting Standards means the accounting standards

published by the Australian Government’s Accounting Standards Board, as

updated from time to time.

Authorised Investigator has the meaning given in clause 30.6.

Business Day means:

(a) for receiving a Notice under clause 47, a day that is not a Saturday,

Sunday, public holiday or bank holiday in the place where the Notice is to

be received; and

(b) for all other purposes, any day that is not a Saturday or Sunday or a

Commonwealth public service holiday throughout Australia promulgated

in the Commonwealth of Australia Gazette.

Business Hours means from 8:30am to 5:00pm on a Business Day at the

place where the Deliverables are to be provided.

Central Administration Fee or CAF has the meaning given in clause 12.

Change Order means a document substantially in the form of that at

Annexure I which is used to implement and record changes to this Head

Agreement or an Entity Deed.



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Charges means the amount or amounts (including GST or other tax) payable

by the Customer to the Contractor for Deliverables in accordance with the

Order.

Commencement Date means:

(a) for this Head Agreement, the date on which this Head Agreement is

executed by both parties (or if executed on different days, the date on

which it is last executed by the parties);

(b) for an Entity Deed, the date on which the Entity Deed is executed by

both the Contractor and the Customer (or if executed on different days,

the date on which it is last executed by the parties); and

(c) for an Order, the date determined in accordance with clause 9.5(e).

Confidential Information means:

(a) in relation to Finance or a Customer, information that:

(i) is by its nature confidential;

(ii) is designated by Finance or the Customer as confidential; or

(iii) the Contractor knows or ought to know is confidential, including:

(A) information comprised in or relating to any of Finance’s or

the Customer’s Intellectual Property);

(B) information relating to the policies, strategies, practices and

procedures of Finance or the Customer and any information

in the Contractor's possession relating to Finance or the

Customer;

(C) information relating to other contractors of Finance or the

Customer (including Panellists); and

(D) Security Classified Information; or

(iv) is Customer Material or data,

but does not include information which:

(v) is or becomes public knowledge other than by breach by the

Contractor of any confidentiality obligation; or

(vi) has been independently developed or acquired by the Contractor

as established by written evidence; and

(b) in relation to the Contractor, means information specified in Annexure C.

Conflict of Interest means any actual or perceived conflict between the duty

of the Contractor to Finance or a Customer and either:

(a) the Contractor's own interests; or

(b) the Contractor's duty to another person.



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Contractor Personnel means any employee, director, officer, agent,

professional adviser or Subcontractor of the Contractor.

Contractor Representative means the person identified in clause 46.1(d).

Contractor Senior Executive means the person identified as holding this

role in clause 46.1(h).

Corporations Act means the Corporations Act 2001 (Cth).

Cost Plus Pricing means the total of:

(a) the direct cost to the Contractor for a Product as invoiced from its

supplier or manufacturer, and after all supplier and manufacturer

discounts and rebates have been deducted; and

(b) a 'plus' expressed as a mark-up percentage (Cost Plus Percentage) to

cover:

(i) other direct business costs incurred by the Contractor in providing

the Product; and

(ii) a Gross Profit Margin.

Cost Plus Percentage means the total mark-up percentage to be applied by

the Contractor to the direct Product cost as identified in the Attachment E –

Non-Mandatory SOS Product List, to Annexure B.

Customer means any Entity which enters into an Entity Deed.

Customer Catalogue means the entire, or a subset of, the Statement of

Requirement tailored to a Customer’s requirements, a hard copy of which may

be annexed to an Entity Deed.

Customer Personnel means any natural person who is an employee, director,

officer, agent or professional adviser of the Customer (not including Contractor

Personnel) and includes all:

(a) Responsible Ministers and all staff of such Responsible Minister's offices;

(b) contractors (including contractors providing outsourcing services to the

Customer) and agents which perform services for or on behalf of the

Responsible Entity; and

(c) other personnel as agreed in writing between the Customer and the

Contractor.

Customer Representative means the person identified in clause 46.1(e).

Customer Supplied Item means the items to be provided or made available to

the Contractor by the Customer as set out in an Entity Deed or an Order.

Customised Item means any item of Stationery and Office Supplies or

Services that a Customer may require to be specifically tailored to meet their

business needs.



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Defect means a deficiency in design, Materials, functional capacity or

workmanship which renders a Deliverable not in conformity with the applicable

Specifications.

Deliverable means the Stationery and Office Supplies to be delivered by the

Contractor to a Customer pursuant to an Order.

Delivery Point means the place specified in the Order for delivery of specified

Deliverables from the list of possible Delivery Points set out in an Entity Deed

or as otherwise Notified by the Customer to the Contractor from time to time.

Depleting Substance means any substance identified as having ozone

depleting potential in the Ozone Protection and Synthetic Greenhouse Gas

Management Act 1989 (Cth) or any regulations made under that Act.

Dispute has the meaning given in clause 45.1.

Document includes:

(a) any paper or other Material on which there is words, figures, symbols or

perforations having a meaning for persons qualified to interpret them;

and

(b) any article or Material from which sounds, images or writing are capable

of being reproduced with or without the aid of any other article or device.

Documentation means the Documents to be provided by the Contractor under

this Head Agreement, an Entity Deed or an Order.

Entity means:

(a) all non-corporate Commonwealth entities as described in subsections 10

(1) and 11(b) of the Public Governance, Performance and Accountability

Act 2013 (PGPA Act);

(b) all corporate Commonwealth entities as described in subsections 10(1)

and 11(a) of the PGPA Act;

(c) a Commonwealth company being a Corporations Act 2001 company that

the Commonwealth controls as described in subsection 89(1) of the

PGPA Act;

(d) any other body established by the Governor-General or State Governor

or by a Minister of State of the Commonwealth; or

(e) Ministers of the Australian Government, Parliamentarians and their

respective staff.

(f) any other organisation authorised by Finance, including an Approved

Third Party Provider, to obtain Services from the Contractor under this

Head Agreement, as notified to the Contractor by Finance from time to

time.

Entity Deed means a deed between a Customer and the Contractor in the

form set out in Annexure H.

Existing Material means Material belonging to the Contractor that:



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(a) is in existence prior to the Commencement Date of this Head

Agreement; or

(b) is brought into existence after the Commencement Date of this Head

Agreement other than as a result of the performance of obligations under

this Head Agreement, an Entity Deed or an Order,

and is embodied in or attached to the Deliverables or is otherwise necessarily

related to the functioning or operation of the Deliverables and includes Material

that is a modification of Existing Material but which is not useable except as a

part of the Existing Material. For the purposes of clause 16.1, Existing

Material includes the Contractor’s corporate logo.

Finance Personnel means any natural person who is an employee, director,

officer, agent or professional adviser of Finance (not including Contractor

Personnel) and includes all:

(a) Ministers having responsibility for Finance, and all staff of such Minister's

offices;

(b) contractors (including contractors providing outsourcing services to

Finance) and agents which perform services for or on behalf of Finance;

and

(c) other personnel as agreed in writing between Finance and the

Contractor.

Finance Representative means the person nominated by Finance in

accordance with clause 46.1(c).

Financial Undertaking has the meaning given in clause 21.2(a).

Gross Profit Margin means the Contractor’s gross profit expressed as a

percentage of the cost of a Product as identified in Attachment E – Non-

Mandatory SOS Product List, to Annexure B.

GST has the meaning given in the GST Law.

GST Amount has the meaning given in clause 14.2(a).

GST Law has the meaning given in the A New Tax System (Goods and

Services Tax) Act 1999 (Cth).

Hazardous Substance means a substance which has the potential, through

being used, to harm the health or safety of persons as detailed in the National

Occupational Health and Safety Commission (NOHSC) publications NOHSC:

1008 (2004) ― Approved Criteria for Classifying Hazardous Substances (3rd

Edition) and the 'Hazardous Substances Information System'.

Head Agreement means this deed between Finance and the Contractor under

which Entity Deeds may be entered into by Entities and Orders may be placed

by Customers for the provision of specified Deliverables.

Head Agreement Details means the details applicable to this Head

Agreement as set out in Annexure A.



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Illegal Worker means a person who:

(a) has unlawfully entered and remains in Australia;

(b) has lawfully entered Australia, but remains in Australia after his or her

visa has expired; or

(c) is working in breach of his or her visa conditions.

For more information refer to

http://www.border.gov.au/Busi/Empl/Empl/employing-legal-workers.

Initial Term means the initial period of time for which this Head Agreement is

intended to continue, as specified in clause 7.

Intellectual Property (IP) means all forms of intellectual property, including the

following:

(a) patents, copyright, rights in circuit layouts, designs, trade marks

(including goodwill in those marks) and business, company and domain

names;

(b) all property of a similar nature to the property set out in paragraph (a)

which may subsist in Australia or elsewhere.

Intellectual Property Rights (IPR) means:

(a) all rights in respect of Intellectual Property, whether or not such rights are

registered or capable of being registered;

(b) any application or right to apply for registration of any Intellectual

Property; 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.

Key Personnel means, as the context requires:

(a) those persons listed in Annexure A; and

(b) Personnel to be used by the Contractor to perform or provide the

Deliverables, as set out in an Entity Deed (and as amended from time to

time).

Law means any applicable statute, regulation, by-law, ordinance or

subordinate legislation in force from time to time in Australia, whether made by

a State, Territory, the Commonwealth, or a local government, and includes the

common law and rules of equity as applicable from time to time.

Legal Services Directions means the Legal Services Directions made under

section 55ZF of the Judiciary Act 1903 (Cth).

Line Item means an individual product in the Product List, inclusive of that

product’s Whole of Australian Government (WoAG) Code, product

Specification and product Price.

Loss means all losses, liabilities, damages, fines, costs and expenses

(including reasonable legal fees on a solicitor/client basis and disbursements

http://www.border.gov.au/Busi/Empl/Empl/employing-legal-workers



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and costs of investigation, litigation, settlement, judgment, interest and

penalties).

Material means any tangible thing in which Intellectual Property Rights can

subsist, including software, firmware, Documents, reports, specifications,

business rules or requirements, user manuals, user guides, operations

manuals, training materials and instructions or other material.

Milestone means the date specified in this Head Agreement, an Entity Deed or

an Order by which an obligation must be performed by the Contractor.

Moral Rights means the right of integrity of authorship (that is, not to have a

work subjected to derogatory treatment), the right of attribution of authorship of

a work and the right not to have authorship of a work falsely attributed, as

defined in the Copyright Act 1968 (Cth).

New Material means Material created by the Contractor on or after the

Commencement Date, for the purpose of or as a result of performing its

obligations under this Head Agreement, an Entity Deed or an Order, and

includes any modifications that may be required for that purpose.

Notice means a notice under this Head Agreement, Entity Deed or any Order

that is sent in accordance with clause 47 of this Head Agreement, an Entity

Deed or an Order. Notify and Notification have a corresponding meaning.

Obsolete means a product that is no longer manufactured or has been

discontinued. Obsolescence has a corresponding meaning.

Ombudsman means the Commonwealth Ombudsman.

Optional Service means the optional services set out in Annexure B -

Statement of Requirement.

Order means an order placed by a Customer in accordance with an Entity

Deed and the process described in clause 9.3 to procure Stationery and Office

Supplies from the Contractor.

Panel means the Whole of Australian Government Stationery and Office

Supplies Panel as constituted from time to time.

Panellist means a member of the Panel that has signed an agreement in

substantially the same form as this Head Agreement.

Performance Guarantee has the meaning given in clause 21.1.

Personal Information has the meaning given in clause 18.3.

Personnel means, in relation to Finance, Finance Personnel, in relation to the

Customer, Customer Personnel and, in relation to the Contractor, Contractor

Personnel.

PGPA Act means Public Governance, Performance and Accountability Act

2013.

Price Adjustment means an adjustment to the Prices carried out:

(a) in respect of Volatile Products, in accordance with clause 37.5; and



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(b) in respect of the provision of all other Stationery and Office Supplies, in

accordance with clause 37.4.

Prices means the prices as set out in Annexure B – Statement of Requirement

and as adjusted from time to time in accordance with clauses 37.3 37.4 and

37.5.

Privacy Act means the Privacy Act 1988 (Cth).

Privacy Commissioner means the Privacy Commissioner for the

Commonwealth.

Proceedings has the meaning given in clause 20.1(d)(i).

Product means a product that the Contractor may supply to Entities pursuant

to this Head Agreement.

Public Announcement means a public announcement in connection with this

Head Agreement, any Entity Deed or any Order or any transaction

contemplated by those documents.

Remote Localities means those localities identified as 'Remote' in Annexure B

– Statement of Requirement.

Request for Tender or RFT means the request for tender process RFT

FIN/018/16 conducted by Finance to determine the Panel.

Responsible Minister means the Minister responsible for Finance or the

Customer (as the case may be), or their respective functions, from time to time

or his or her staff.

Resolution Institute means the Resolution Institute ACN 008 651 232.

Schedule means a schedule to an Entity Deed or an Order.

Security Classified Information means information defined as 'Security

Classified Information' in accordance with the Protective Security Policy

Framework.

Service Levels means the service levels and performance standards set out

in:

(a) Annexure B – Statement of Requirement (Attachment C) that apply to

the performance of this Head Agreement; and

(b) a Customer Catalogue (if any) that apply to the performance of an Entity

Deed or an Order.

Services means the services as set out in the Annexure B – Statement of

Requirement.

SOS Product List means the SOS Product List as set out in Annexure C of

the Head Agreement, Attachment D and Attachment E.

Specifications means in order of priority:

(a) any relevant specifications contained in:



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(i) the Statement of Requirement;

(ii) the Customer Catalogue;

(iii) an Order;

(b) the requirements set out in the Statement of Requirement; and

(c) all applicable manufacturers' or suppliers' specifications and applicable

standards including as updated from time to time in accordance with this

Head Agreement.

Specified Acts has the meaning given in clause 16.7.

Statement of Requirement means the SOS Deliverables requirements as set

out in Annexure B specifying the SOS Product and Services details, including

the Service Levels and the Specifications for the Stationery and Office

Supplies, as updated from time to time in accordance with clause Error!

Reference source not found..

Stationery and Office Supplies (SOS) means the Products and Services set

out in Annexure B – Statement of Requirement.

Subcontractor means an entity engaged by the Contractor under a

subcontract to perform any part of the work under this Head Agreement, an

Entity Deed or an Order and that entity's directors, officers, employees,

subcontractors, agents and consultants.

Term means the Initial Term for this Head Agreement plus any extension in

accordance with this Head Agreement, or the Term of an Entity Deed or the

Term of an Order.

Tested Item is defined in clause 36(a).

Third Parties has the meaning given in clause 40.3.

Transition-In Plan means the plan of that name submitted by the Contractor in

accordance with clause 38.

Vendor Refill Arrangements means the provision of a stationery cupboard,

development of stock levels and maintenance of stock levels through a refill

service.

Volatile Organic Compounds means organic chemical compounds which

have significant vapor pressures and which can affect the environment and

human health.

Volatile Products means those products identified as 'Volatile Products' in the

SOS Product List.

WHS Act means the Work Health and Safety Act 2011.



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1.2 Interpretation

(a) In this Head Agreement, any Entity Deed and any Order, except where

the contrary intention is expressed:

(i) a reference to this Head Agreement is to the Background and

clauses 1 to 49.14, and includes the Annexures as the context

requires;

(ii) the singular includes the plural and vice versa, and a gender

includes other genders;

(iii) another grammatical form of a defined word or expression has a

corresponding meaning;

(iv) a reference to a clause, paragraph, Schedule or Annexure is to a

clause or paragraph of, or schedule or Annexure to, this Head

Agreement or an Entity Deed or an Order as the context requires,

and a reference to this Head Agreement or an Entity Deed or an

Order includes any Schedule or Annexure to those documents;

(v) a reference to a clause includes a reference to a subclause of that

clause;

(vi) a reference to a Document, publication, Commonwealth policy or

instrument is a reference to the Document, publication,

Commonwealth policy or instrument as altered, supplemented or

replaced from time to time;

(vii) a reference to A$, $A, AUD, dollar or $ is to Australian currency

unless stated otherwise;

(viii) a reference to time is to the time in the place where the obligation

is to be performed;

(ix) a reference to a party is to a party to this Head Agreement, an

Entity Deed or to an Order, as the context requires, and a

reference to a party to a Document includes the party's executors,

administrators, successors, permitted assigns and substitutes;

(x) If Finance or a Customer:

(A) is reconstituted, renamed or replaced, or if its powers or

functions are transferred to another organisation, this Head

Agreement, any applicable Entity Deed and any relevant

Order refers to that new organisation; and

(B) ceases to exist, this Head Agreement, any applicable Entity

Deed and any relevant Order refers to the new organisation

which serves the same purpose or object as Finance or the

Customer (as the case may be);

(xi) a reference to a person includes a natural person, partnership,

body corporate, association, governmental or local authority or

entity or other entity;



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(xii) if the Contractor is a trustee, the Contractor enters this Head

Agreement, any Entity Deed and any Order personally and in its

capacity as trustee and warrants that it has the power to perform

its obligations under this Head Agreement, Entity Deed and any

such Order;

(xiii) a reference to a statute, ordinance, code or other Law includes

regulations and other instruments under it and consolidations,

amendments, re-enactments or replacements of any of them;

(xiv) a word or expression defined in the Corporations Act or GST Law

has the meaning given to it in the Corporations Act or GST Law, as

applicable;

(xv) the meaning of general words is not limited by specific examples

introduced by 'including', 'for example' or similar expressions;

(xvi) any agreement, representation, warranty or indemnity by two or

more parties (including where two or more persons are included in

the same defined term) binds them jointly and severally;

(xvii) any agreement, representation, warranty or indemnity in favour of

two or more parties (including where two or more persons are

included in the same defined term) is for the benefit of them jointly

and severally;

(xviii) a rule of construction does not apply to the disadvantage of a party

because the party was responsible for the preparation of this Head

Agreement, an Entity Deed or an Order, or any part of those

documents;

(xix) if a day on or by which an obligation must be performed or an

event must occur is not a Business Day in the relevant location,

the obligation must be performed or the event must occur on or by

the next Business Day in that location; and

(xx) headings are for ease of reference only and do not affect

interpretation.

(b) To the extent that the parties have not completed items in a Schedule or

Annexure, unless otherwise stated in that Schedule or Annexure, that

item will be taken to be 'not applicable' for the purpose of this Head

Agreement or the relevant Entity Deed or Order.

2 Structure of this Document (a) This document sets out the terms applicable to this Head Agreement and

also the terms applicable to any Entity Deeds and Orders entered into in

accordance with this Head Agreement.

(b) In addition:



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(i) the provisions of this Head Agreement apply to this Head

Agreement, to any Entity Deed and to any Order; and

(ii) the Annexures to this Head Agreement apply to this Head

Agreement, to any Entity Deed and to any Order.

(c) Subject to clause 9.5(d), if there is inconsistency between any of the

documents forming part of this Head Agreement, any Entity Deed or any

Order, those documents will be interpreted in the following order of

priority to the extent of any inconsistency:

(i) the terms of this Head Agreement (including as incorporated in any

Entity Deed or Order);

(ii) the Annexures to this Head Agreement, other than Annexure A;

(iii) any Entity Deed;

(iv) the Schedules to an Entity Deed;

(v) the Order;

(vi) the Schedules to an Order; and

(vii) Documents incorporated by reference in this Head Agreement or

any Entity Deed or Order.

3 Scope of Head Agreement (a) This Head Agreement is a standing offer between Finance (representing

all Entities) and the Contractor under which Customers may:

(i) enter into Entity Deeds with the Contractor; and

(ii) place Orders with the Contractor for the supply of Deliverables by

the Contractor, to the Customer.

(b) The Contractor acknowledges and agrees that this Head Agreement

does not:

(i) oblige Finance or any Entity to acquire any Deliverables, or any

particular quantity of Deliverables, from the Contractor pursuant to

this Head Agreement or any Entity Deed;

(ii) give the Contractor the right to be the sole provider of any

Deliverables, or any part of the Deliverables, to an Entity; or

(iii) prevent Finance or an Entity from seeking deliverables that are the

same as, or similar to, the Deliverables from other suppliers

including suppliers that are not on the Panel.

4 Nature of the Panel Finance has established a Panel (of which the Contractor has become a

member by execution of this Head Agreement) to enable Entities to acquire

Deliverables. The Contractor acknowledges that:



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(a) the Panel comprises SOS suppliers which have:

(i) offered to provide Deliverables on terms substantially the same as

this Head Agreement;

(ii) in respect of the Deliverables included or referred to in their

respective Head Agreements, been assessed by Finance as

meeting the minimum specifications required by Finance for the

supply of Deliverables to Entities; and

(iii) been successful in achieving qualification to be a Panellist as a

result of the Request for Tender or such other means or process

determined by Finance in its discretion;

(b) Finance may add additional suppliers to the Panel at any time; and

(c) the Contractor's continued membership of the Panel will be subject to:

(i) the Contractor's ongoing ability to provide demonstrable value for

money for the Term of this Head Agreement;

(ii) the Contractor maintaining a high standard of quality and delivery

of the Deliverables it has been contracted to provide, and

compliance with the objectives of the Panel; and

(iii) the Contractor's compliance with all requirements specified in this

Head Agreement, any Entity Deed and any Order.

5 Role of Finance (a) Finance's role is to:

(i) administer this Head Agreement, including approving any

proposed changes to its terms;

(ii) administer the Statement of Requirement in accordance with

clause Error! Reference source not found.;

(iii) collect data from Contractors in accordance with clause 27 and

make that data available to Entities and otherwise as permitted by

this Head Agreement or an Entity Deed; and

(iv) oversee the proper performance of this Head Agreement to ensure

that:

(A) Customers obtain the benefits to which they are entitled

under this Head Agreement; and

(B) the Commonwealth obtains the collective benefits to which it

is entitled under this Head Agreement including, reporting of

expenditure and outcomes, effective transitional processes,

benchmarking of products, services and pricing, productivity

gains and value for money.

(b) Finance may, at any time by Notice to the Contractor, exclude any Entity

or category of Entity from the scope of this Head Agreement. The



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Contractor must not enter into an Entity Deed with any Entity or fulfil any

Order from any Entity described in such a Notice following the receipt of

the Notice.

6 Standing Offer to Entities by the Contractor

6.1 Standing Offer

(a) The Contractor offers, by way of and in the form of a standing offer, to

enter into Entity Deeds and fulfil Orders placed by any Entity in

accordance with the terms of this Head Agreement.

(b) The Contractor offers to supply to each Customer:

(i) the Products and Services set out in the Customer Catalogue at

the Prices set out in the Customer Catalogue; and

(ii) all user guides and other standard documentation supplied by the

manufacturer or licensor of the Products and Services,

on the terms set out in this Head Agreement, the applicable Entity Deed

and the relevant Order.

(c) Each Entity Deed agreed and executed in accordance with this Head

Agreement, and each Order placed in accordance with this Head

Agreement will create a separate contract between the Contractor and:

(i) the Commonwealth represented by the Entity (if that Entity is

subject to the PGPA Act);

(ii) the Entity (if that Entity does not form part of a body politic being

the Commonwealth); or

(iii) an Authorised Third Party Provider.

(d) For the avoidance of doubt, the Contractor acknowledges and agrees

that this Head Agreement is a binding agreement between the

Contractor and Finance.

(e) In any Entity Deed and any Order created under this Head Agreement,

the Entity will be referred to as the Customer.

(f) If an Approved Third Party Provider seeks to procure Deliverables for the

benefit of another Entity from the Contractor, the Contractor must

cooperate with and provide all reasonable assistance to that Approved

Third Party Provider.

(g) The Contractor must not, during the Term of this Head Agreement, offer

to supply, or enter into any contract or arrangement with any Entity for

the provision of:

(i) deliverables that are the same as, or similar to, the Deliverables; or

(ii) any goods or services ancillary to the Deliverables (including any

contracts for services ancillary to any Deliverables being provided,

or to be provided to an Entity under an Order),



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other than in accordance with this Head Agreement, without having

received the prior written consent of Finance in accordance with clause

6.1.

(h) The Contractor agrees that:

(i) any contract or arrangement created in contravention of clause

6.1(f) Error! Reference source not found.will not be effective to

create any contractual or other legal rights, obligations or liabilities;

or

(ii) if it does create legal rights, obligations or liabilities, the contract or

arrangement may be terminated, without compensation, by written

Notice from Finance to the Contractor.

(i) An Entity which wishes to enter into a contract or arrangement (including

the placement of any Orders) which is otherwise prohibited by

clause Error! Reference source not found.may do so if it obtains the

prior written permission of Finance.

6.2 Existing arrangements

(a) The parties agree it is intended by execution of this Head Agreement that

any existing contract or arrangement between the Contractor and an

Entity for the supply of Stationery and Office Supplies be terminated by

the Entity or Finance issuing a Notice.

(b) For the purposes of effecting clause 6.2(a), the Contractor agrees that

the termination provisions of any existing contract or arrangement,

including any termination or break fees that may become payable by an

Entity on termination, do not apply and that any Notice to the Contractor

that the Entity or Finance wishes to terminate any existing contract or

arrangement in accordance with clause 6.2(a)) is sufficient for

terminating that existing contract or arrangement without penalty.

7 Term

7.1 Head Agreement Term

(a) This Head Agreement begins on the Commencement Date and

continues for an Initial Term of three years unless terminated in

accordance with clause 43.

(b) The Initial Term may be extended by Finance for three further periods of

12 months each, on the terms and conditions then in effect, by giving

written Notice to the Contractor. Such Notice must be provided:

(i) at least 30 Business Days; or

(ii) within another period agreed in writing between the parties,

before the end of the then current Term.

(c) Any extension exercised in accordance with clause 7.1(b) takes effect

from the end of the then current Term.



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7.2 Consideration in Exercising Extension

(a) The Contractor acknowledges that decisions by Finance to extend the

Head Agreement in accordance with clause 7.1(b) will be influenced by:

(i) Finance and Customer satisfaction with the Contractor's

performance of its obligations under the Head Agreement, each

Entity Deed and each Order; and

(ii) the outcomes of any Annual Review conducted by Finance in


7.3 Term of Entity Deed

(a) Each Entity Deed begins on the Commencement Date for that Entity

Deed and continues for the Term specified in that Entity Deed, unless

terminated in accordance with clause 43.

(b) If this Head Agreement is terminated or expires while an Entity Deed is in

force, the Entity Deed remains in force until the Entity Deed expires or is

terminated in accordance with its terms, unless Finance issues a Notice

to also terminate the Entity Deed.

7.4 Term of an Order

(a) Each Order begins on the Commencement Date for that Order and

continues until the Contractor has performed all of its obligations under

such Order, unless terminated in accordance with clause 43.

(b) If this Head Agreement or the Entity Deed that the Order was created

under is terminated or expires while an Order is in force, the Order

remains in force until the Order expires or is terminated in accordance

with its terms.

8 Entity Deeds

8.1 Entity Deed

(a) The Contractor acknowledges and agrees that:

(i) any Entity may enter into an Entity Deed with the Contractor in the

form set out in Annexure H;

(ii) the terms of this Head Agreement are incorporated into each Entity

Deed and cannot be amended without the prior written consent of

Finance;

(iii) the terms of this Head Agreement incorporated into the Entity

Deed are amended from time to time as and when this Head

Agreement is amended;

(iv) if there is any inconsistency between this Entity Deed and this

Head Agreement, the terms of this Head Agreement prevail; and



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(v) in no event may the Contractor refuse to enter into an Entity Deed

with an Entity where such Entity Deed is in accordance with this

Head Agreement.

(b) Each Entity Deed will include:

(i) at the Customer’s election, the entire, or a subset of, the Statement

of Requirement, including SOS Product List, which will be the

Customer Catalogue for that Entity Deed, provided that:

(A) the Contractor must not agree to include any items in the

Customer Catalogue that are not included in the SOS

Product List set out in the Statement of Requirement without

Finance’s prior approval; and

(B) the Prices in the Customer Catalogue must be no greater

than the Prices included in the Statement of Requirement;

and

(ii) such other details as contemplated by this Head Agreement.

(c) Following execution of an Entity Deed by the Contractor and a Customer,

the Customer may place Orders in accordance with clause 9.3 or issue

requests for quotations for Customised Items in accordance with clause

9.4.

(d) Unless otherwise specified in an Order, any Order entered into between

the Customer and the Contractor will incorporate the terms of the Entity

Deed.

9 Orders

9.1 General

(a) This clause 9 sets out the mechanics by which a Customer may accept

the Contractor’s standing offer described in clause 6.1 to supply

Stationery and Office Supplies set out in Entity Deed (incorporating the

Customer Catalogue) on one or more occasions.

(b) The Contractor acknowledges that:

(i) the Customer’s acceptance of the Contractor’s offer to supply

Stationery and Office Supplies set out in the Entity Deed

(incorporating the Customer Catalogue) occurs when the

Customer places an Order in accordance with the process

described in clause 9.3; and

(ii) the Contractor is obligated to comply with the Order once it has

been deemed accepted in accordance with clause 9.5.

(c) An Approved Third Party Provider may issue the Contractor with a

Contract Order Form under this Head Agreement for the provision of the

Deliverables specified in that Contract Order Form only as part of the



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Approved Third Party Provider's provision of Stationery and Office

Supplies to a Customer.

(d) Where clause 9.1(c) applies, the Contractor must only provide

Deliverables to the Approved Third Party Provider as part of the

Approved Third Party Provider's provision of Stationery and Office

Supplies to an Entity (or group of Entities).

9.2 Ordering system

(a) The Contractor will provide and maintain:

(i) an online ordering system;

(ii) a toll free telephone number;

(iii) a toll free facsimile number; and

(iv) email ordering,

to enable each Customer to place Orders.

(b) The Contractor will ensure that:

(i) Finance has access to the Deliverables set out in the Statement of

Requirement through the online ordering system; and

(ii) each Customer has access to its Customer Catalogue, invoices

and reporting in accordance with clause 27.2 through the online

ordering system.

(c) The Contractor will provide all assistance, training and documentation

necessary to enable a Customer to access and use the online ordering

system.

(d) The Contractor must provide and maintain separate user login accounts

as required by a Customer, to enable the Customer to use the online

ordering system.

9.3 Process

If a Customer wishes to purchase any Stationery and Office Supplies or

Services set out in a Customer Catalogue, the Customer will place an Order for

one or more of the items in the Customer Catalogue by using the online

ordering system, email, the toll free telephone number or the toll free facsimile

number provided by the Contractor in accordance with clause 9.2(a).

9.4 Request for Quotations

(a) A Customer may request a quotation from the Contractor before issuing

an Order.

(b) The Contractor must respond within 7 days with the quotation and,

without prejudice to the Contractor’s obligations to meet any term of this

Head Agreement and Entity Deed, its confirmation as to whether it can

meet the Customer’s requirements.



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(c) If a Customer wishes to proceed with a quotation in accordance with

clause 9.4(b), it may accept the quotation by issuing an Order using

ordering system described in clause 9.2(a).

9.5 Acceptance of Orders

(a) The Contractor will be deemed to have accepted any Order placed by a

Customer using any of the ordering system options described in clause

9.2(a) that is:

(i) consistent with the terms of this Head Agreement (including the

Prices and committed delivery lead times set out in the Statement

of Requirement);

(ii) consistent with a quotation and confirmation provided by the

Contractor under clause 9.4(b); or

(iii) has otherwise been agreed between the Contractor and the

Customer,

at the time at which the Order is submitted by the Customer using the

ordering system.

(b) The Contractor must provide written confirmation to Customer within

three hours of receiving an Order.

(c) When the Contractor is deemed to have accepted any Order, a separate

contract will be formed between the Contractor and the Customer on the

terms of:

(i) the applicable terms of this Head Agreement, as set out in

clause 2;

(ii) the Entity Deed;

(iii) the Order; and

(iv) any other Document specified in the Order as being part of,

incorporated into, or otherwise applicable to, the Order (including

relevant Annexures and Schedules).

(d) Subject to clause 44.1, provisions of an Order or Entity Deed which

purport to change the terms set out in this Head Agreement applicable to

an Order or Entity Deed (as the case may be) have no effect, whether or

not an Order or Entity Deed (as the case may be) has been executed by

an Entity and the Contractor, unless:

(i) those changes are specified in the applicable Order or Entity Deed

(as the case may be) by specific clause reference and with details

of the changes; and

(ii) the Contractor has received a Notice from the Finance

Representative that these changes are specifically agreed (in

addition to the execution of the Order and Entity Deed on behalf of

the Customer).



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(e) Each individual Order will take effect from the later of:

(i) the date an Order is deemed accepted in accordance with

clause 9.5; or

(ii) another date stipulated in the Order;

(being the Commencement Date for the Order).

(f) The Contractor must supply the Stationery and Office Supplies as set out

in an Order.

9.6 Termination of an Order

An Order may be terminated pursuant to clause 43 of this Head Agreement.

10 Service Levels

10.1 Application of Service Levels

The Contractor must, in supplying the Stationery and Office Supplies and

performing its obligations:

(a) under this Head Agreement meet or exceed the Service Levels as

specified in Annexure B, Attachment C; and

(b) under an Entity Deed or an Order meet or exceed the Service Levels as

specified in the Statement of Requirement and the relevant Customer

Catalogue, in accordance with this Head Agreement.

11 Payment

11.1 Charges

The Contractor must charge Customers on the basis of:

(a) the Prices; and

(b) the Deliverables provided.

11.2 Payment terms

(a) Subject to the Contractor meeting the requirements of the Order, the

Customer must pay to the Contractor the Charges in the form and in the

manner set out in the Order or the Entity Deed.

(b) Unless otherwise specified in an Entity Deed, the Customer will make

payment within 30 days of receipt of a correctly rendered invoice in


(c) The Contractor must ensure that each invoice clearly shows the Order

number and any other information requested by the Customer.

(d) The Customer and the Contractor agree that payments may be made by

electronic transfer of funds or in the manner specified in the Entity Deed,

the relevant Order or as otherwise Notified by the Customer from time to

time.



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(e) In the event of a Dispute as to whether an amount is payable pursuant to

an invoice, the Customer may withhold the disputed portion pending

resolution of the Dispute but will pay the undisputed portion within

30 days of receipt of a correctly rendered replacement invoice for the

undisputed portion.

(f) The Charges include all costs and resources required by the Contractor

to fulfil an Order. Unless otherwise specified in the Order, the Contractor

must not charge the Customer for any fees, charges or expenses

(including travel and accommodation, consumables, document

reproduction, transportation, courier and telecommunications charges) in

addition to the Charges. The Customer is under no obligation to pay any

amount in excess of the Charges.

11.3 Invoices

(a) All invoices submitted by the Contractor must be in the form of a valid tax

invoice (within the meaning of the GST Law) and contain:

(i) a description of the Deliverables as set out in the Order;

(ii) the dates and period to which the invoice relates;

(iii) the amount for payment and the details needed to verify the

amount;

(iv) a statement of the CAF payable by the Customer as a separate

amount;

(v) a statement of the GST payable (if any) by the Customer as a

separate amount;

(vi) the account or other details required in order for Customers to

make payment;

(vii) the address of the Customer as set out in the Order; and

(viii) any other information reasonably requested by the Customer.

(b) Unless otherwise specified in an Entity Deed, the Contractor must

provide invoices for all amounts payable by the Customer under the

Order:

(i) where the Order specifies a particular date that the amount will be

incurred – within three months of that date;

(ii) where no such date is specified in the Order – within three months

of the date that the relevant Deliverable was delivered.

(c) The Customer is not required to pay any amount which is not invoiced in


(d) The Contractor must keep a record of all invoices rendered to, and

Charges paid by, Customers.



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11.4 Adjustment for incorrect Prices

(a) If, after payment, an invoice is found to have been rendered incorrectly,

any overpayment by the Customer will be a debt due to the Customer

under the Order and, without limiting recourse to other available means,

may be offset against any amount subsequently due by the Customer to

the Contractor under the Order pursuant to clause 49.11.

(b) Where an invoice with an incorrect Price has been identified, Finance

may require the Contractor to review other Orders to determine whether

the mistake has occurred with other Customers and where relevant

make adjustment which is recoverable under clause 11.6.

11.5 Invoices for Non-Mandatory Cost Plus Products

(a) This clause 11.5 applies to invoices submitted by the Contractor under

clause 11.3 that incorporates Non-Mandatory Cost Plus Categories of

Products, as defined in Annexure B - Statement of Requirement.

(b) Invoices for Non-Mandatory Cost Plus Products must comply with

clause 11.3 and:

(i) attach the tax invoice from the Contractor's supplier that is being

passed through to the Customer; and

(ii) must display the calculation whereby the Cost Plus Percentage, as

defined in the Statement of Requirement, is applied to the

Contractor's supplier's tax invoice.

11.6 Recovery of amounts owing by the Contractor

(a) Any amount owed by the Contractor to Finance or a Customer under this

Head Agreement is a debt due which may be recovered by Finance or

the Customer by:

(i) deducting the amount owed from any payment due to the

Contractor; or

(ii) issuing a Notice to the Contractor requiring it to pay the amount

owing at a specified time no later than 30 days after the date of the

notice.

12 Central Administration Fee (a) The Contractor must add to the GST exclusive Charges for each Order

the amount of the Central Administration Fee (being a percentage of

those GST exclusive Charges) as Notified by Finance in accordance with

clause 12(b).

(b) The amount of the Central Administration Fee (expressed as a

percentage) will be Notified by Finance to the Contractor on the

Commencement Date of this Head Agreement. Finance will Notify the

Contractor if the Central Administration Fee changes at any time after

the Commencement Date of this Head Agreement.



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(c) The Contractor must:

(i) pay the Central Administration Fee to Finance in advance of

recovering the amount from a Customer by paying, on or before

3:00pm on the second Business Day of each month, an amount

equivalent to the aggregate of the Central Administration Fee

identified on all invoices it provided to Customers (in accordance

with clause 11.3) in the previous month, without set off or

deduction, to the bank account advised by Finance;

(ii) identify the Central Administration Fee separately within the

Contractor's accounting records so that at all times the Central

Administration Fee is identifiable and ascertainable; and

(iii) comply with any other direction by Finance on the management of

the Central Administration Fee.

(d) This clause 12 survives the expiry or termination of this Head

Agreement, any Entity Deed and any Orders.

(e) For the purposes of clause 45, a Dispute does not include a dispute

arising in relation to the Contractor's obligations in respect of the Central

Administration Fee.

(f) For the purposes of clarity, this clause 12(c)(i) is intended to simplify

contract management arrangements by ensuring that amounts

calculated as the Central Administration Fee are not treated as Relevant

Money, as defined in the PGPA Act 2013, until the actual payment is

made by the Contractor to Finance under clause 12(c)(i).

13 Taxes All taxes, duties and government charges imposed or levied in Australia or

overseas in connection with this Head Agreement, any Entity Deed and any

Order (including, subject to clauses 14 and 15, GST and stamp duty) must be

met by the Contractor and are included in the Charges. If any government or

authority imposes a duty, tax (other than income tax), levy or fee (other than a

duty, tax, levy or fee imposed in a jurisdiction outside Australia) in respect of

Deliverables under an Order, or a rate of tax (other than a duty, tax, levy or fee

imposed in a jurisdiction outside Australia) changes, that is not otherwise

provided for in the amount payable, the Contractor may propose an

amendment to this Head Agreement, any Entity Deed and any Order to adjust

the Prices or Charges to take into account of that change, provided that any

amendment is subject to the prior written agreement of Finance and the

relevant Customer. Agreement under this clause 13 will not be unreasonably

withheld.



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14 GST

14.1 Interpretation

(a) In this clause 14, a word or expression defined in the GST Law has the

meaning given to it in the GST Law.

(b) References to GST payable and input tax credit entitlement include GST

payable by, and the input tax credit entitlement of, the representative

member for a GST group of which the entity is a member.

(c) In the case of Finance or a Customer, a reference in this clause 14 to

'Supplier' or 'recipient' includes a reference to the government entity

which is treated as making the supplies and acquisitions under this Head

Agreement, an Entity Deed or an Order for GST purposes (as the case

may be) and any obligation on Finance or a Customer includes an

obligation of Finance or the Customer to procure that the government

entity satisfies that obligation.

14.2 GST gross up

(a) If a party (Supplier) makes a supply under or in connection with this

Head Agreement, an Entity Deed or an Order in respect of which GST is

payable, any party that is required to provide consideration to the

Supplier for that supply must pay to the Supplier, an additional amount

equal to the GST payable on the supply (GST Amount).

(b) Clause 14.2(a) does not apply if the amount payable for the supply is

expressed as 'GST inclusive'.

14.3 Reimbursements

If a party must reimburse or indemnify another party for a Loss, cost or

expense, the amount to be reimbursed or indemnified is first reduced by any

input tax credit the other party is entitled to for the Loss, cost or expense, and

then increased in accordance with clause 14.2(a).

14.4 Exclusion of GST from calculations

(a) If a payment is calculated by reference to or as a specified percentage of

another amount or revenue stream, that payment will be calculated by

reference to or as a specified percentage of the amount or revenue

stream exclusive of GST.

(b) Any reference in this Head Agreement, an Entity Deed or an Order to a

cost, expense or other liability incurred by a person, will exclude the

amount of any input tax credit entitlement of that person in relation to an

acquisition to which the relevant cost, expense or other liability arises. A

person will be assumed to have an entitlement to a full input tax credit

unless it demonstrates otherwise prior to the date on which the

consideration must be provided.

14.5 Adjustments

(a) If the GST payable by a Supplier on any supply made under or in

connection with this Head Agreement, an Entity Deed or an Order varies



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from the GST Amount paid or payable by the recipient under clause

14.2(a) such that a further amount of GST is payable in relation to the

supply or a refund or credit of GST is obtained in relation to the supply,

then the Supplier will provide a corresponding refund or credit to, or will

be entitled to receive the amount of that variation from, the recipient. Any

payment, credit or refund under this clause 14.5(a) is deemed to be a

payment, credit or refund of the GST Amount payable under clause

14.2(a).

(b) If an adjustment event referred to in clause 14.5(a) occurs in relation to

a supply, the Supplier must issue an adjustment note to the recipient in

relation to that supply within 10 Business Days after becoming aware of

the adjustment.

14.6 Tax invoice

A party need not make a payment for a taxable supply made under or in

connection with this Head Agreement or an Order until it receives a tax invoice

from the Supplier for the supply to which the payment relates.

15 Stamp Duty (a) The Contractor, as between the parties, is liable for and must pay all

stamp duty on or relating to this Head Agreement, any Entity Deed or

any Order and any document executed under those documents, and any

dutiable transaction evidenced or effected by those documents.

(b) If a party other than the Contractor pays any amount contemplated by

clause 15(a), the Contractor must pay that amount to the other party on

demand.

16 Intellectual Property Rights

16.1 Operating Existing Material

(a) The Contractor grants to the Customer (or shall procure the grant to the

Customer of) a perpetual, non-exclusive, non-transferable licence to use

all Existing Material for all purposes related to the use of the Stationery

and Office Supplies.

(b) The Contractor grants to the Customer (or shall procure the grant to the

Customer of) a non-exclusive, non-transferable licence to use all Existing

Material for all purposes related to the use of the Services by the

Customer during the Term of the applicable Entity Deed and the

applicable Order.

16.2 Intellectual Property Rights in New Material

(a) Intellectual Property Rights in New Material are dealt with as follows:

(i) Intellectual Property Rights in any New Material vest in the

Customer absolutely upon creation; and



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(ii) to the extent any New Material incorporates or is delivered in

conjunction with Existing Material:

(A) Intellectual Property Rights in that Existing Material are

retained by the Contractor (or relevant third party owner)

absolutely; and

(B) in respect of Intellectual Property Rights in the Existing

Material as and to the extent incorporated in New Material,

the Contractor grants to the Customer an irrevocable, non-

exclusive, world-wide, paid-up licence to hold, use, execute,

reproduce, display, perform and sublicense that Existing

Material as part of the relevant New Material, and to alter,

enhance, and produce derivative works from that Existing

Material as a whole for use by the Customer's organisation

provided that the Customer may not exploit the Existing

Material independently for commercial purposes.

(b) The Customer grants to the Contractor a licence to use New Material

only as required for the Contractor to perform its obligations in relation to

an Order.

(c) On completion of the Order or expiration or termination of the applicable

Entity Deed, the Contractor must deliver to the Customer all New

Material together with all copies of it held by the Contractor or under its

control (other than one copy of the New Material which may be retained

as required for use in legal, regulatory, professional standards or

insurance proceedings). The Contractor must ensure that the New

Material is used, copied, supplied or reproduced only for the purposes of

the Contractor to perform its obligations in relation to an Order.

16.3 Intellectual Property Warranty

The Contractor warrants that:

(a) the Deliverables, the New Material and the Existing Material and the

Customer's use of the Deliverables, New Material and Existing Material

will not infringe the Intellectual Property Rights or Moral Rights of any

person; and

(b) it has the rights to vest the Intellectual Property Rights and grant the

licences required by this clause 16.

16.4 Remedy for breach of Intellectual Property warranty

If someone claims, or the Contractor reasonably believes that someone is likely

to claim, that all or part of the Deliverables, New Material or Existing Material or

the Customer’s use of the Deliverables, New Material or Existing Material

infringe their or any third party’s Intellectual Property Rights or Moral Rights,

the Contractor must, in addition to the indemnity in clause 22 and to any other

rights that the Customer may have against it, promptly, at the Contractor's

expense:

(a) Notify the Customer immediately;



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(b) secure all necessary rights for the Customer to continue to use the

affected Deliverables, New Material or Existing Material free of any claim

or liability for infringement; or

(c) replace or modify the affected Deliverables, New Material or Existing

Material so that they or the use of them does not infringe the Intellectual

Property Rights or Moral Rights of any person in a way that does not

degrade the performance or quality of the affected Deliverables, New

Material or Existing Material.

16.5 Ownership of contract

All copyright and other Intellectual Property Rights contained in this Head

Agreement, an Entity Deed or an Order remain the property of Finance or the

Customer, as applicable.

16.6 Moral Rights

To the extent permitted by applicable Laws and for the benefit of the Customer,

the Contractor must ensure that each of the Personnel used by the Contractor

in the production or creation of the New Material gives a genuine consent in

writing, in a form acceptable to the Customer, to the use of the New Material

for the Specified Acts, even if such use would otherwise be an infringement of

their Moral Rights.

16.7 Specified Acts

In this clause 16, Specified Acts means:

(a) not attributing the authorship, or falsely attributing the authorship, of any

New Material, or any content in the New Material (including without

limitation literary, dramatic, artistic works and cinematograph films within

the meaning of the Copyright Act 1968 (Cth));

(b) materially altering the style, format, colours, content or layout of the New

Material and dealing in any way with the altered New Material;

(c) reproducing, communicating, adapting, publishing or exhibiting any New

Material; and

(d) adding any additional content or information to the New Material.

17 Confidentiality

17.1 Disclosure of Confidential Information

(a) Subject to clause 17.3, a party must not, without prior Notice of consent

from the other party, disclose any Confidential Information of the other

party to a third party.

(b) In giving Notice of consent to the disclosure of Confidential Information, a

party may impose such conditions as it thinks fit, and the other party

must comply with those conditions if it proceeds to make the disclosure.



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17.2 Written undertakings

(a) Each party must take all reasonable steps to ensure that, subject to

clause 17.3, its Personnel engaged to perform work under this Head

Agreement, an Entity Deed or any Order do not disclose Confidential

Information of the other party obtained during the course of performing

such work.

(b) A party may at any time request the other party to arrange for any of its

Personnel to whom information may be disclosed pursuant to

clauses 17.3(a), 17.3(b) or 17.3(c) (other than an employee of Finance

or the Customer) to give a written undertaking in the form set out at

Annexure G (Deed of Confidentiality and Privacy).

(c) If a party receives a request under clause 17.2(b), it must promptly

arrange for all such undertakings to be given and must provide copies to

the other party.

17.3 Exceptions to obligations

The obligations of the parties under this clause 17 will not be taken to have

been breached to the extent that Confidential Information:

(a) is disclosed by a party to its Personnel solely in order to comply with

obligations, or to exercise rights, under this Head Agreement, any Entity

Deed or any Order;

(b) is disclosed to a party's internal management Personnel, solely to enable

effective management or auditing of Head Agreement-related, Entity

Deed-related or Order -related activities;

(c) is shared by Finance within Finance, or with another Entity, if this serves

the Commonwealth's legitimate interests;

(d) is disclosed by Finance or the Customer to the Responsible Minister and

his or her advisers;

(e) is disclosed by Finance or the Customer, in response to a request from a

House or a Committee of the Parliament of the Commonwealth;

(f) disclosure is authorised or required by Law, including under this Head

Agreement or any Order, under a licence or otherwise, to be disclosed;

or

(g) is in the public domain otherwise than due to a breach of this clause 17.

17.4 Obligations on disclosure

A party that discloses Confidential Information to another person must:

(a) if the disclosure is pursuant to clause 17.3(a), 17.3(b) or 17.3(c):

(i) inform the receiving person that the information is Confidential

Information; and

(ii) not provide the information unless the receiving person agrees to

keep the information confidential and agrees, if requested, to



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provide a written confidentiality undertaking in accordance with

clause 17.2(b); or

(b) if the disclosure is pursuant to clause 17.3(d), 17.3(e) or 17.3(f), inform

the receiving party that the information is Confidential Information.

17.5 Announcements

(a) Subject to clause 17.5(b), the Contractor must not make a Public

Announcement unless it has Finance's written agreement if the

announcement concerns this Head Agreement and Finance’s and the

relevant Customer's written agreement if the announcement concerns an

Entity Deed or an Order.

(b) The Contractor is not required to obtain Finance's or the Customer's

written consent to make a Public Announcement if the Public

Announcement is required by Law or a regulatory body (including a

relevant stock exchange).

(c) If the Contractor is required by Law or a regulatory body to make a

Public Announcement, the Contractor must:

(i) limit the Public Announcement to the extent required by the

relevant Law or regulatory body; and

(ii) to the extent practicable, first consult with and take into account

the reasonable requirements of Finance and the Customer (as

applicable).

18 Privacy

18.1 Application of the clause

This clause 18 applies only when the Contractor deals with Personal

Information when, and for the purpose of, performing its obligations under this

Head Agreement, any Entity Deed or any Order.

18.2 Definitions

In this clause 18, the terms 'entity', 'Australian Privacy Principle' (APP), and

'Approved Privacy Code' (APC)' have the same meaning as they have in

section 6 of the Privacy Act, and 'Personal Information', which also has the

meaning it has in section 6 of the Privacy Act, means:

information or an opinion about an identified individual, or an individual who is

reasonably identifiable:

(a) whether the information or opinion is true or not; and

(b) whether the information or opinion is recorded in a material form or not.

18.3 Obligations

The Contractor acknowledges that it is a ‘contracted service provider’ within the

meaning of section 6 of the Privacy Act, and agrees in respect of the



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performance of its obligations under this Head Agreement, any Entity Deed

and any Order:

(a) to use or disclose personal information obtained during the course of

performing its obligations under this Head Agreement, Entity Deed or

any Order, only for the purposes of this Head Agreement, relevant Entity

Deed or the relevant Order;

(b) not to do any act or engage in any practice that would breach, or if done

or engaged in by an entity would breach, an APP contained in section 14

of the Privacy Act;

(c) to carry out and discharge the obligations contained in the APPs as if it

were an agency under the Privacy Act;

(d) to Notify individuals whose Personal Information the Contractor holds,

that complaints about acts or practices of the Contractor may be

investigated by the Privacy Commissioner who has power to award

compensation against the Contractor in appropriate circumstances;

(e) not to use or disclose Personal Information or engage in an act or

practice that would breach an APP or an APP code;

(f) to disclose in writing to any person who asks, the content of the

provisions (if any) of this Head Agreement, Entity Deed or any Order that

are inconsistent with an APP;

(g) to immediately Notify Finance and the Customer if the Contractor

becomes aware of a breach or possible breach of any of the obligations

contained in, or referred to in, this clause 18, whether by the Contractor

or any Subcontractor;

(h) to comply with any directions, guidelines, determinations or

recommendations of the Privacy Commissioner; and

(i) to ensure that any Contractor Personnel who are required to deal with

Personal Information for the purposes of this Head Agreement, Entity

Deed or an Order are made aware of the obligations of the Contractor

set out in this clause 18.

18.4 State and Territory Laws

The Contractor must comply with any equivalent State or Territory privacy Law

which applies to a Customer.

19 Samples and Demonstrations If Finance or a Customer requests the Contractor to provide a reasonable

number of samples of a Deliverable or provide a demonstration of the

capabilities of a particular Deliverable, the Contractor must comply with such

request and provide the samples or demonstration within a reasonable time

period after receiving the request.



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20 Warranties

20.1 Contractor warranties

(a) The Contractor warrants that:

(i) it has and will be deemed to have done everything possible to

inform itself fully and completely as to:

(A) the requirements for Deliverables under this Head

Agreement, any Entity Deed and any Order;

(B) the Law and the conditions, risks, contingencies and all other

factors which may affect the timing, scope, cost or

effectiveness of performing this Head Agreement, Entity

Deed and any Order; and

(C) all things necessary for delivery and management of this

Head Agreement, Entity Deed and any Order and the

performance of the Contractor's obligations under this Head

Agreement, Entity Deed and any Order;

(ii) it enters into this Head Agreement, each Entity Deed and each

Order based on its own investigations, interpretations, deductions,

information and determinations; and

(iii) it does not rely on any representation, warranty, condition or other

conduct, information, statement or Document whether forming part

of this Head Agreement, any Entity Deed or any Order or not which

may have been made by Finance, the Customer or any person

purporting to act on behalf of Finance or the Customer in entering

into this Head Agreement, any Entity Deed or any Order (as the

case may be) other than an express warranty contained in this

Head Agreement, Entity Deed and any Order.

(b) The Contractor represents and warrants that:

(i) it has, and the Contractor Personnel have, and they will both

continue to have and to use, the skills, qualifications and

experience to provide the Deliverables in a skilful, diligent,

responsive, professional, efficient and controlled manner, with a

high degree of quality and to a standard that complies with this

Head Agreement, each Entity Deed and each Order and meets the

Customer's requirements in full;

(ii) all Subcontractors:

(A) are capable of performing and have sufficient financial

capability to perform all of the obligations of the Contractor

that are (or are to be) subcontracted to that Subcontractor to

the standard required by this Head Agreement, any Entity

Deed and any Order; and



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(B) have experience and have demonstrated recent good

performance in the provision of works or services similar to

the Deliverables that are to be subcontracted to it;

(iii) the Deliverables will:

(A) be fit for purpose at all times (including upon delivery);

(B) perform in accordance with, meet and comply with the

applicable Specifications;

(C) be newly manufactured in respect of Products;

(D) be free from any material Defect in workmanship, design and

Materials;

(E) be provided with quiet enjoyment, unencumbered and free of

any Security Interest as defined in the Personal Property

Securities Act 2009 (Cth);

(F) conform with the Order and any third party warranties

applicable to a Deliverable;

(iv) it has the right to grant all licences granted pursuant to this Head

Agreement and any Order;

(v) where the Specifications contain any obligations, representations

or commitments on the part of the Contractor, the Contractor will

perform, satisfy and meet those obligations, representations and

commitments in a timely manner;

(vi) at all times during the Term it will meet, and seek to exceed, the

Service Levels;

(vii) it will provide the necessary resources to provide the Deliverables

and use those resources to provide the Deliverables;

(viii) at all times during the Term it will maintain all tangible resources

and software used to provide the Deliverables in good operating

condition; and

(ix) in providing the Deliverables, it will at all times comply with this

Head Agreement, each Entity Deed and each Order.

(c) The Contractor represents and warrants that:

(i) it has the right to enter into this Head Agreement and every Entity

Deed and every Order;

(ii) it has:

(A) full corporate power and authority; and

(B) all rights, title, licences, interests and property necessary,

to lawfully enter into, perform and observe its obligations under this

Head Agreement, each Entity Deed and each Order;



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(iii) the execution, delivery and performance of this Head Agreement,

Entity Deed and each Order has been duly and validly authorised

by all necessary corporate action; and

(iv) the Contractor‘s signing, delivery and performance of this Head

Agreement, each Entity Deed and each Order does not constitute:

(A) a violation of any judgment, order or decree;

(B) a material default under any contract which relates in any

way to the provision of the Deliverables, and by which it or

any of its assets are bound; or

(C) an event that would, with notice or lapse of time, or both,

constitute such a default.

(d) The Contractor warrants that it has disclosed in writing to Finance prior

to the Commencement Date of this Head Agreement and it will disclose

in writing to Finance and the Customer prior to the Commencement Date

of any Entity Deed or Order:

(i) any litigation, arbitration, mediation, conciliation or proceeding,

including investigations whatsoever that are taking place, pending

or threatened (either in Australia or overseas) (Proceedings)

where such Proceedings will or have the potential to impact

adversely upon either the Contractor's reputation or the

Contractor's capacity to perform and fulfil its obligations under this

Head Agreement, any Entity Deed or any Order; and

(ii) matters relating to the commercial, technical or financial capacity

of the Contractor or of any Subcontractor proposed to be engaged

in respect of any Order, including the existence of any breach,

default or alleged breach or default of any agreement, order or

award binding upon the Contractor,

being matters affecting or likely to affect the Contractor's ability to

perform any of its obligations under this Head Agreement, Entity Deed or

any Order.

(e) The Contractor warrants that:

(i) it is not named by the Workplace Gender Equality Entity as an

employer that is currently not complying with the Workplace

Gender Equality Act 2012 (Cth);

(ii) it has not had a judicial decision against it (not including decisions

under appeal) relating to employee entitlements in respect of which

it has not paid the judgment amount; and

(iii) it is not on the Commonwealth's consolidated list of individuals and

entities to which terrorist asset freezing applies and none of its

Personnel are on, or a member of an entity on, that list.



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(f) The Contractor warrants that it will promptly Notify and fully disclose to

Finance any event or occurrence actual or threatened during the Term

that would materially affect the Contractor's ability to perform any of its

obligations under this Head Agreement, including any event or

occurrence referred to in clause 20.1(d) or 20.1(e).

20.2 Rectification

(a) Rectification of any Deliverables which do not conform to the

requirements of the Specifications or comply with any warranties

applicable to an Order will be in accordance with the warranty

rectification terms and procedures contained in the Statement of

Requirement.

(b) If the Statement of Requirement does not contain warranty rectification

terms and procedures for a particular Deliverable, then the Contractor

must:

(i) within two Business Days of being informed by the Customer of a

Defect, replace the affected Deliverable(s) with Deliverable(s) that

conform to the Specifications and that comply with all warranties

applicable to the Order; and

(ii) meet all costs associated with that replacement, including any

packing, freight, repair, modification, disassembly, reassembly site

attendance or other costs, except if the Defect in the Deliverable(s)

is due to negligence of the Customer.

(c) Rectification work undertaken pursuant to clause 20.2(a) is warranted in

the same manner as applicable to the original Deliverables.

(d) If the Contractor does not rectify Deliverables as required by

clause 20.2(a) within the time frame required by the applicable warranty

arrangements or clause 20.2(a) (as applicable):

(i) the Customer may, at its discretion, perform or have performed

that rectification; and

(ii) the reasonable expenses of the rectification will be money due to

the Customer under the Order.

20.3 Third Party Warranties

If the Contractor supplies Deliverables that have been procured from a third

party, the Contractor assigns to the Customer, to the extent permitted by Law,

the benefits of the warranties given by the third party. This assignment does

not in any way relieve the Contractor of the obligation to comply with warranties

offered directly by the Contractor under this Head Agreement or the applicable

Order.

20.4 Effect of warranties

(a) Nothing in this clause 20:



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(i) restricts the effect of any conditions or warranties which may be

implied by the Competition and Consumer Act 2010 (Cth) or any

sale of goods or fair trading Law; or

(ii) limits Finance’s or a Customer’s right to take action on the basis of

the common law that would be applied by the High Court of

Australia in respect of a breach of contract, tort or any other

common law or statutory cause of action.

(b) The Contractor acknowledges that Finance and each Customer has

entered into this Head Agreement, each Entity Deed and each Order

(respectively) relying on the warranties and representations given by the

Contractor in this clause 20.

(c) The general warranties provided under this clause 20 for all Entity

Deeds and Orders:

(i) will survive the termination or expiry of this Head Agreement; and

(ii) are in addition to, do not limit and are not limited by:

(A) any warranties specific to an Entity Deed or an Order;

(B) warranties associated with Intellectual Property Rights; and

(C) any other warranty provided by either party under this Head

Agreement.

21 Guarantees

21.1 Performance Guarantees

(a) If required by Finance, the Contractor must provide a Performance

Guarantee from a guarantor approved by Finance (Performance

Guarantee) within 10 Business Days of a request by Finance at any time

during the Term of this Head Agreement or the Term of an Entity Deed.

(b) The Performance Guarantee must be in the form set out at Annexure D

or, if Finance has agreed to an alternative form, in that alternative form.

(c) The purpose of the Performance Guarantee provided pursuant to clause

21.1, is to assist Finance in ensuring the due and proper performance by

the Contractor of its obligations under this Head Agreement, including all

Entity Deeds and Orders.

(d) In the event of default by the Contractor, Finance may, pursuant to the

Performance Guarantee, require the guarantor to perform this Head

Agreement and any Entity Deed or Orders still in effect on behalf of the

Contractor.

(e) The Performance Guarantee will survive termination of this Head

Agreement for so long as Entity Deeds or Orders are still in effect.



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21.2 Financial Undertaking

(a) If required by Finance, the Contractor must provide an unconditional

irrevocable financial undertaking (Financial Undertaking) within 10

Business Days of a request from Finance at any time during the Term of

this Head Agreement or the Term of an Entity Deed.

(b) The Financial Undertaking must be:

(i) executed by a financial institution approved by Finance;

(ii) stamped (if required);

(iii) materially in the form of the undertaking appearing at Annexure E;

and

(iv) for the sum reasonably requested by Finance, having regard to the

obligations of the Contractor under this Head Agreement or the

relevant Entity Deeds and Order, as applicable.

(c) The purpose of a Financial Undertaking provided pursuant to clause

21.2(a), is to assist Finance in ensuring the due and proper performance

by the Contractor of its obligations under this Head Agreement, including

all Entity Deeds and Orders.

(d) Finance may (without reference to the Contractor) demand any sum

under that Financial Undertaking from the financial institution referred to

in the Financial Undertaking in respect of one or more of the following:

(i) amounts owed to Finance or any Customer by the Contractor;

(ii) damages suffered by Finance or any Customer (or Finance

Personnel or Customer Personnel) as a result of a breach of this

Head Agreement, an Entity Deed or an Order by the Contractor

(including termination of this Head Agreement, an Entity Deed or

an Order); and

(iii) any Loss suffered by Finance or the Customer (or Finance

Personnel or Customer Personnel) in relation to this Head

Agreement, any Entity Deed or an Order (including under an

indemnity).

(e) The Financial Undertaking will be released by Finance when the

Contractor has fulfilled all its obligations under this Head Agreement,

each Entity Deed and each Order. For the avoidance of doubt, the

Financial Undertaking will survive termination of this Head Agreement for

so long as Entity Deeds or Orders are still in effect.

22 Indemnity

22.1 Contractor's Indemnity

The Contractor indemnifies Finance, the Customer, Finance Personnel and

Customer Personnel, as applicable, against Losses reasonably sustained or

incurred by any of them as a result of or arising out of or in connection with:



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(a) any breach of this Head Agreement, any Entity Deed or any Order by the

Contractor or Contractor Personnel, including a breach in respect of

which Finance or the Customer exercises an express right to terminate

this Head Agreement relevant Entity Deed or the relevant Order and

including any breach of warranty;

(b) any breach of any Law by the Contractor; or

(c) any deliberately wrongful, reckless, negligent or unlawful act or omission

of the Contractor or Contractor Personnel,

except to the extent that a deliberately wrongful, reckless, negligent or unlawful

act or omission of Finance or the Customer or their respective Personnel

directly contributed to the relevant Loss.

22.2 Contractor's Intellectual Property Rights and Moral Rights Indemnity

The Contractor indemnifies Finance, the Customer, Finance Personnel and

Customer Personnel against Losses reasonably sustained or incurred as a

result of a claim made or threatened by a third party arising out of or in

connection with an allegation that any Deliverables (including the use of any

Deliverables by the Customer or Customer Personnel) infringes the Intellectual

Property Rights or Moral Rights of any third party except to the extent that any

deliberately wrongful, reckless or negligent act or omission of the Customer or

its Personnel directly contributed to the relevant Loss. For the purposes of this

clause 22.2, an infringement of Intellectual Property Rights includes

unauthorised acts which would, but for the operation of section 163 of the

Patents Act 1990 (Cth), section 100 of the Designs Act 2003 (Cth), section 183

of the Copyright Act 1968 (Cth) and section 25 of the Circuit Layouts Act 1989

(Cth), constitute an infringement.

22.3 Customer's obligations

If Finance or a Customer wishes to enforce the indemnities under clauses 22.1

or 22.2, it must:

(a) give written Notice to the Contractor as soon as practical;

(b) subject to the Contractor agreeing to comply at all times with

clause 22.4, permit the Contractor, at the Contractor's expense, to

handle all negotiations for settlement and, as permitted by Law, to

control and direct any settlement negotiation or litigation that may follow;

and

(c) in the event that the Contractor is permitted to handle negotiations or

conduct litigation on behalf of Finance or the Customer under

clause 22.3(b) and at the Contractor's cost, provide all reasonable

assistance to the Contractor in the handling of any negotiations and

litigation.



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22.4 Contractor's obligations

If the Contractor is permitted to handle negotiations or conduct litigation on

behalf of Finance or the Customer under clause 22.3(b), the Contractor must:

(a) comply with applicable government policy and obligations, as if the

Contractor were Finance or the Customer, relevant to the conduct of the

litigation and any settlement negotiation (including the Legal Services

Directions) and any direction issued by the Attorney-General to the

Commonwealth or delegate;

(b) keep Finance and the Customer informed of any significant

developments relating to the conduct of the defence or settlement of any

claim;

(c) provide to Finance and the Customer all information and Documents

reasonably requested by Finance and the Customer, to enable Finance

and the Customer to ascertain whether the defence or settlement by the

Contractor of any claim is being conducted in accordance with applicable

government policy and obligations including the Legal Services

Directions (including any requirements relating to legal professional

privilege and confidentiality); and

(d) comply with any reasonable conditions imposed by Finance or the

Customer (including any condition requiring the provision of a Financial

Undertaking).

22.5 Disputes regarding Intellectual Property

The Contractor is not required to comply with the Legal Services Directions if it

is in Dispute with a person other than Finance or the Customer concerning the

Intellectual Property Rights subsisting in the Deliverables provided that:

(a) the claim affects customers of the Contractor other than Customers; and

(b) there is no current Dispute with Finance or any Customer in respect of

the same subject matter (but if there is a Dispute with any Customer and

the Customer is obliged to comply with the Legal Services Directions, the

Contractor must also comply).

22.6 Rights held on trust

Where an indemnity in this clause 22 provides a benefit to a person who is not

a party to this Head Agreement, an Entity Deed or an Order, that benefit will be

held on trust for that person by Finance or the Customer through whom those

rights are obtained and that benefit may be exercised by the person as

beneficiary under the trust or on their behalf by Finance or the Customer as

trustee.

22.7 Mitigation

Each party will use all reasonable endeavours to mitigate its Loss, damages

and expenses arising under or in connection with a breach of an Order or in

tort, or for any other common law or statutory cause of action arising under or

in connection with that Order.



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23 Insurance

23.1 Obligation to maintain insurance

Unless otherwise stated in an Order, the Contractor must have and maintain

valid and enforceable insurance policies (with reputable insurance companies

that do not contain any unusual exclusions) to the following levels:

(a) until the expiry or termination of the later of this Head Agreement and

any Order which survives the expiry or termination of this Head

Agreement:

(i) $20 million per occurrence public liability;

(ii) workers' compensation as required by Law; and

(iii) any other, or increased, insurance specified in an Entity Deed or

an Order; and

(b) during the Term of the Head Agreement and for seven (7) years

following the expiry or termination of the later of this Head Agreement or

any Order:

(i) $10 million per occurrence product liability; and

(ii) $10 million per occurrence either professional indemnity or errors

and omissions.

23.2 Proof of Insurances

The Contractor must, on request by Finance or the Customer, provide to

Finance or the Customer within five Business Days proof of the currency of the

required insurances including:

(a) an insurance certificate certifying that the insurance required by this

clause 23 is in force; and

(b) copies of the policies of insurance.

24 Continuous Improvement, Efficiencies, Quality Innovation and Risk Management

24.1 General

(a) The Contractor must provide continuous quality assurance and quality

improvement during the Term by:

(i) identifying and applying proven techniques and tools utilised by the

Contractor or industry that would benefit Customers either

operationally or financially; and

(ii) implementing programs, practices and measures designed at a

minimum to improve the Contractor's levels of performance,

including any programs, practices and measures as specified in an

Entity Deed or an Order.



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(b) The Contractor must proactively and promptly advise Finance and

Customers of all new trends in technology and methodology related to

the Deliverables.


(i) at all times seek to improve its performance under this Head

Agreement, each Entity Deed and any Order; and

(ii) implement any specific continuous improvement mechanisms

specified in an Order within the times specified in that Order.

(d) Nothing in this clause 24 requires Finance or a Customer to request,

approve or fund modifications to the manner in which the Deliverables

are supplied.

24.2 Quality Management

(a) The Contractor shall have and maintain a Quality Management System

(QMS), which is Certified by a certification body acceptable to Finance,

as meeting the requirements of AS/NZS ISO 9001:2000, at the

Commencement Date.

(b) The Contractors QMS shall have a Certification scope appropriate to the

nature of the goods and services being provided under this Head

Agreement.

(c) For this clause 24.2, ‘Certified’ means certification by an organisation

accredited by the Joint Accreditation System of Australia & New Zealand,

or equivalent international or national certification body acceptable to

Finance.

(d) The Contractor shall immediately inform Finance of any changes to the

Contractor’s QMS Certification status.

(e) During the Term of the Head Agreement, Finance may at its discretion

audit the Contractor’s QMS (in accordance with clause 30) in relation to

the goods and services provided under the Head Agreement.

(f) If at any time Finance determines following an Audit that the Contractor’s

Quality Management System is no longer Certified, Finance may Notify

the Contractor in writing of the details of the non-conformance and

require the Contractor to correct the non-conformance within the period

specified in the Notice.

(g) The Contractor shall take whatever action is necessary to correct a non-

conformance identified in a Notice provided by Finance under clause

24.2(f) within the period specified in that Notice, or within any period

agreed in writing by Finance, and shall advise Finance immediately upon

taking corrective action.

(h) Finance may perform a subsequence audit to verify that the non-

conformance has been corrected.



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24.3 Innovation

(a) Without limiting the Contractor’s obligations under clause 24.1, the

Contractor must actively monitor and promptly Notify Finance of any

innovations relative to the Deliverables, which Notice ('Innovation

Proposal') must include;

(i) the proposed innovative improvement;

(ii) detail the benefits the proposed innovative improvement will

provide to Finance and Entities; and

(iii) establish how the proposed innovative improvement aligns with

relevant government policies.

(b) Finance may, in its absolute discretion and with or without giving

reasons, accept, reject or request amendments to an Innovation

Proposal submitted by the Contractor.

(c) Where Finance approves the Contractor’s Innovation Proposal (including

as amended), the Statement of Requirement and each Customer

Catalogue will be deemed updated accordingly from the date of receipt

of Notice of Finance’s approval.

24.4 Risk Management

(a) The Contractor must have a formal process for identifying, evaluating

and managing both operational and strategic risks in relation to the

provision of the Deliverables and the Contractor’s obligations under the

Head Agreement.

(b) As a minimum, the Contractor shall have and maintain the following

plans and documents;

(i) a Risk Management Plan that is aligned with AS/NZS ISO

31000:2009;

(ii) a Risk Register relating to the provision of the Deliverables and the

Contractor’s obligations under this Head Agreement;

(iii) an Issue Management Strategy, which may be a component of the

Risk Management Plan, and ensures that significant issues are

addressed in a timely manner;

(iv) a Business Continuity Plan for its operations; and

(v) a Disaster Recovery Plan for its operations.

(c) The Contractor shall report on risks in relation to the provision of the

Deliverables and the Contractor’s obligations under this Head Agreement

at each Head Agreement Management meeting.

(d) On request from Finance, the Contractor must provide any plan or

Document identified in this clause 24.4, for review by Finance.



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25 Personnel

25.1 General

(a) The Contractor must, at its own cost, utilise such Personnel as are

necessary to enable it to fulfil its obligations under this Head Agreement,

each Entity Deed and each Order. The Contractor must ensure that the

Personnel that it utilises to perform its obligations under this Head

Agreement, an Entity Deed or an Order have the requisite skills,

qualifications and experience for the tasks they are given.

(b) The Contractor must:

(i) provide, or procure the provision of, such information as can be

lawfully provided and which is reasonably requested by the

Customer concerning the Personnel it proposes to use in

performing its obligations under this Head Agreement, an Entity

Deed or an Order;

(ii) provide suitable replacement Personnel should the Customer, for

security reasons, deny access to or request removal of any

Personnel. If the Customer requests the removal of any Personnel

for reasons not related to security, the Contractor must promptly

address the matter, which may involve replacement of any

Personnel approved by the Customer;

(iii) ensure its Personnel comply with all lawful directions of Finance;

(iv) ensure its Personnel comply with the obligations in this Head

Agreement, an Entity Deed or any Order; and

(v) ensure its Personnel, when on the Customer’s premises or when

accessing the Customer’s facilities and information:

(A) comply as necessary with the reasonable requirements and

directions of the Customer with regard to conduct,

behaviour, safety and security (including submitting to

security checks as required and complying with any

obligation imposed on the Customer by Law); and

(B) carry and display at all times appropriate identification so as

to be easily identified as Contractor Personnel.

25.2 Illegal Workers

(a) The Contractor must ensure that no Personnel, including those engaged

by any Subcontractors, are Illegal Workers.

(b) The Contractor must ensure that all subcontracts include a provision

prohibiting Subcontractors engaging Illegal Workers.

(c) The Contractor must remove, or cause to be removed, any Illegal Worker

from any involvement in performing its obligations under this Head

Agreement, any Entity Deed or any Order (including if engaged by a



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Subcontractor) and arrange for their replacement at no cost, immediately

upon becoming aware of the involvement of the Illegal Worker.

(d) If requested in writing by Finance or a Customer, the Contractor must

provide evidence within 14 days that it has taken all reasonable steps to

ensure that it has complied and is complying with its obligations in

respect of Illegal Workers.

25.3 Key Personnel

(a) The Contractor must:

(i) provide the Key Personnel to perform the roles or tasks set out in

Annexure A and any Entity Deed;

(ii) ensure the Key Personnel that it uses have the necessary

education, training, qualifications, experience and skills to fulfil

those tasks; and

(iii) ensure the Key Personnel comply with the obligations in this Head

Agreement, an Entity Deed or any Order.

(b) If a person specified as Key Personnel is unavailable at any time, the

Contractor must promptly advise the Customer and provide a substitute.

The substitute provided must also have the necessary education,

training, qualifications, experience and skills to fulfil those tasks.

(c) Any substitute Key Personnel must be approved by the Customer. The

Customer may not unreasonably withhold its approval of a substitute but

it may give its approval subject to such conditions as it reasonably

considers necessary to protect its interests.

25.4 Subcontracting

(a) The Contractor must:

(i) upon request from Finance or a Customer, Notify Finance (or the

Customer as the case may be) of any Subcontractors used by the

Contractor to perform any aspect of this Head Agreement, an

Entity Deed or an Order;

(ii) not subcontract on terms that would permit the Subcontractor to do

or omit to do something that would, if done or omitted to be done

by the Contractor, constitute a breach of this Head Agreement, any

Entity Deed or any Order;

(iii) not subcontract with an entity that has had a judicial decision

against it (not including decisions under appeal) relating to

employee entitlements in respect of which it has not paid any

judgment amount;

(iv) not subcontract with an entity that is on, or which has one or more

employees that are on, or which is a member of an entity that is

on, the Commonwealth's consolidated list of individuals and

entities to which terrorist asset freezing applies;



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(v) not enter into any subcontract with an entity named in a report

tabled in the Australian Parliament by the Workplace Gender

Equality Agency as a supplier that has not complied with the

Workplace Gender Equality Act 2012 (Cth);

(vi) must ensure that any subcontract entered into for the purpose of

this Head Agreement, any Entity Deed or any Order contains an

equivalent clause granting the rights specified in clause 30;

(vii) ensure that transition between Subcontractors and replacement of

Subcontractors is managed to ensure that there is no disruption to

Deliverables provided under an Order; and

(viii) ensure that any subcontract entered into for the purpose of fulfilling

its obligations under this Head Agreement, any Entity Deed or any

Order contains provisions to ensure that the Subcontractor has the

same awareness and obligations as the Contractor has under the

following clauses of this Head Agreement:

(A) clause 16 (Intellectual Property Rights);

(B) clause 17 (Confidentiality);

(C) clause 18 (Privacy);

(D) clause 33 (Commonwealth Government Policy);

(E) clause 31 (Security);

(F) clause 30 (Audit and access); and

(G) clause 42 (Conflict of interest).

(b) The Contractor must provide Finance and the Customer with a copy of

the subcontract between the Contractor and the Subcontractor within five

Business Days of receiving a request from Finance or the Customer to

provide the subcontract.

(c) The Contractor is not relieved of any of its liabilities or obligations under

this Head Agreement, any Entity Deed or an Order as a result of any

subcontracting or any approval of any Subcontractor by Finance or a

Customer, and the Contractor is at all times responsible for the

performance of all Subcontractors notwithstanding the approval by

Finance or a Customer may have been given or withheld in respect of

any Subcontractor.

26 Governance Framework

26.1 Contract Management

The Contractor must:

(a) participate in any forums, reviews or meetings at the Contractor's own

expense, if requested by Finance, including with other Contractors, in



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relation to the operation of this Head Agreement or any Entity Deed or

Order entered into under it. Such reviews may consider:

(i) the scope of the Statement of Requirement;

(ii) the adequacy of the performance management framework;

(iii) benefits achieved by the Commonwealth under this Head

Agreement;

(iv) the Contractor’s performance against Service Levels;

(v) the escalation of any Customer issues;

(vi) emerging issues in the provision of the Deliverables; and

(vii) how the Contractor can best support the ongoing needs of the

Commonwealth.

(b) comply with any reasonable directions given by Finance in respect of this

Head Agreement and by a Customer in respect of an Entity Deed and

any Order;

(c) provide all reasonable assistance consistent with the Contractor's

obligations under this Head Agreement as required by Finance and

under any Entity Deed or Order as required by the Customer, including

providing information as may be requested from time to time;

(d) provide a certificate to Finance on each anniversary of the

Commencement Date of this Head Agreement certifying that:

(i) it has to date complied with all of the terms of this Head

Agreement;

(ii) it has performed each Order in accordance with this Head

Agreement and the applicable Entity Deed and the terms and

conditions of the applicable Order;

(iii) each invoice has included the Central Administration Fee and the

Contractor has remitted this to Finance within the time specified in

clause 12; and

(e) participate in day to day interaction with Customers regarding operational

issues and must attend quarterly meetings convened by the Customer to

discuss:

(i) the Contractor’s compliance against the Service Levels;

(ii) the quality and timeliness of the Deliverables;

(iii) the Customer’s satisfaction with the Contractor’s performance;

(iv) the continuous improvement mechanisms that the Contractor is

providing in accordance with clause 24; and

(v) the outcomes of any Price Adjustment reviews.



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26.2 Head Agreement Management Meetings

(a) The Contractor must attend quarterly (3 monthly) Head Agreement

Management Meetings with Finance to review:

(i) the appropriateness of Products in the Statement of Requirement

and negotiate changes as appropriate;

(ii) prices set out in the Statement of Requirement;

(iii) performance against the Service Levels for the preceding period;

(iv) the operational and strategic risks; and

(v) Innovation Proposals.

(b) Finance will also use the Head Agreement Management Meetings as an

opportunity to gain industry feedback on overarching trends across

Entities and opportunities for business improvement.

26.3 Annual Reviews

(a) Following each anniversary of the Commencement Date of this Head

Agreement, Finance will conduct an Annual Review to assess the

operation of this Head Agreement which may include a review of the

Contractor's performance of any Contracts.

(b) The Contractor must participate in the Annual Review as required by

Finance, including by:

(i) providing data related to the Deliverables to Finance within 30

days of a request;

(ii) participating in an Annual Review meeting, if requested by

Finance; and

(iii) if required by Finance, provide to Finance a high level Strategic

Management Report which addresses strategic matters, issues

related to the operation of the panel and other matters as

requested by Finance.

(c) Each party must bear its own costs of any Annual Review conducted

under this clause 24.4.

27 Reporting

27.1 Head Agreement Reporting Requirements

(a) In addition to the Strategic Management Report requirements of clause

26.3, the Contractor must provide the following reports to Finance:

(i) a monthly report (within 10 Business Days of the end of the month)

for the first twelve months from the Commencement Date, setting

out:

(A) all Entity Deeds entered into;

(B) any Entity Deed which is subject to negotiation;



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(C) any issues with Customers; and

(D) other information requested by the Finance Representative

from time to time; and

(b) For the Term of this Head Agreement, the Contractor must provide

monthly Whole of Australian Government reports (within 10 Business

Days of the end of the month) setting out:

(i) detailed sales information for each Entity including all products and

Services purchased for each Entity;

(ii) Entity expenditure in aggregate and itemised against each product

and Service purchased including details of discounts applied

including details of the Central Administration Fee and GST

collected by the Contractor;

(iii) a summary of the Contractor’s performance achieved against the

Service Levels defined in Annexure B Attachment C;

(iv) a high level trend analysis of performance against the Service

Levels;

(v) a summary of any management issues with Entities (including

Customer’s complaints), the status of issues and action taken to

resolve these issues;

(vi) a detailed summary of trends and opportunities for improvement;

and

(vii) other information reasonably requested by the Finance

Representative from time to time.

(c) In addition to the Central Administration Fee (CAF) requirements of

clause 12 the Contractor must provide a report detailing CAF charged on

each invoice by 3.00pm on the second Business Day of the month.

(d) The information in any report must be clear and accurate and facilitate

the Finance Representative in understanding the use of the Panel.

(e) The Contractor must promptly provide additional information in respect of

this Head Agreement, an Entity Deed and any Orders as may reasonably

be requested by Finance or a Customer, as applicable, from time to time.

27.2 Entity Reporting Requirements

Unless otherwise specified in an Entity Deed, for each Entity Deed, the

Contractor must provide at no cost to the Customer the reports set out in the

Statement of Requirement (Annexure B).



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28 Books and records

28.1 Maintenance of Records

The Contractor must at all times maintain full, true, accurate and up-to-date

accounts and records relating to this Head Agreement, each Entity Deed and

any Order. Such accounts and records must:

(a) include appropriate audit trails for transactions performed;

(b) record all receipts and expenses in relation to the provision of

Deliverables;

(c) record all other matters on which the Contractor is required to report by

this Head Agreement or an Entity Deed or an Order;

(d) be kept in a manner that permits them to be conveniently and properly

audited, and enables the charges and any other amounts payable by the

Customer under any Order to be determined;

(e) comply with any applicable Australian Accounting Standards;

(f) in the case of any Deliverable provided on a 'time and materials' or Cost

Plus Pricing basis, identify the time spent by Contractor Personnel in

providing that Deliverable; and

(g) be made available to Finance or the Customer as required for monitoring

and reviewing the performance of the Contractor’s obligations under this

Head Agreement, each Entity Deed and any Order including being

available for audit and access in accordance with clause 30.

28.2 Subcontractor requirements

The Contractor must securely retain, and require its Subcontractors to securely

retain, for a period of seven years after termination or expiration of this Head

Agreement, applicable Entity Deed or any Order, whichever is later, all books

and records referred to in clause 28.1.

28.3 Survival

This clause 28 applies for the Term and for a period of seven years from the

termination or expiry of this Head Agreement, applicable Entity Agreement or

Order, whichever is later.

28.4 Archival Requirements

The Contractor agrees to comply with any reasonable directions from Finance

or the Customer with respect to any applicable Commonwealth, State or

Territory Law relating to archival requirements.

28.5 Costs

The Contractor must bear its own costs of complying with this clause 28.



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29 Access to Customer’s Site (a) The Customer must cooperate with the Contractor by providing access to

its premises and facilities as provided in the Entity Deed and to the

extent reasonably necessary (during ordinary Business Hours) so as to

enable the Contractor to perform or provide the Deliverables.

(b) The Contractor must, if using or accessing the Customer's premises and

facilities, comply with all reasonable directions and procedures, including

documented procedures relating to work health and safety and security,

in effect at those premises or facilities, whether Notified to the Contractor

or as might reasonably be inferred from the circumstances.

(c) In addition to the requirements of clause 29(b), the Contractor agrees

that when accessing the Customer’s premises and facilities, it will comply

with all applicable Commonwealth, State and local government Laws,

regulations and procedures relating to work health and safety.

(d) Access to the Customer's premises and facilities may be temporarily

denied or suspended by the Customer, at its sole discretion. If access is

temporarily denied or suspended by the Customer (except in

circumstances when access is temporarily denied or suspended due to

an investigation into the conduct of the Contractor’s Personnel), the

Contractor will be entitled to an extension of time to complete any

obligations which are directly and adversely affected by the denial of

access. Without limiting the foregoing, the Customer will, following a

temporary denial or suspension of access, permit a resumption of access

as soon as practicable.

30 Audit and access

30.1 Right to conduct audits

(a) Finance in respect of this Head Agreement or an Order, and the

Customer in respect of an Entity Deed or an Order to which it is a party,

or a person or organisation nominated by Finance or the Customer, as

applicable, may conduct audits relevant to the performance of the

Contractor's obligations under this Head Agreement, Entity Deed or any

Order at any time.

(b) Audits may be conducted of:

(i) the Contractor's operational practices and procedures as they

relate to this Head Agreement, any Entity Deed or any Order,

including security procedures;

(ii) the accuracy of the Contractor‘s invoices and reports in relation to

the provision of Deliverables under any Order;

(iii) the Contractor's compliance with its:

(A) obligations under clause 10; or



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(B) confidentiality, privacy and security and other obligations

under this Head Agreement or any Entity Deed;

(iv) Material (including books and records) in the possession of the

Contractor relevant to the Deliverables, this Head Agreement, an

Entity Deed or any Order;

(v) the Contractor’s Quality Management System; and

(vi) any other matters determined by Finance or the Customer to be

relevant to the Deliverables, this Head Agreement, an Entity Deed

or any Order.

30.2 Access by Finance or a Customer

(a) Finance in respect of this Head Agreement or an Order, and the

Customer in respect of an Entity Deed or an Order to which it is a party,

or a person nominated by Finance or the Customer, as applicable, may,

at reasonable times and on giving reasonable Notice to the Contractor:

(i) access the premises of the Contractor to the extent relevant to the

performance of this Head Agreement, an Entity Deed or an Order;

and

(ii) inspect and copy relevant Documents, books and records,

however stored, in the possession, custody or control of the

Contractor or its Personnel.

(b) The Contractor must comply with any request from Finance or the

Customer, as applicable, for the Contractor to:

(i) give Finance or the Customer, or their nominee, copies of records

and information in a data format and storage medium accessible

by Finance or the Customer by use of the Customer’s existing

computer hardware and software or other facilities; and

(ii) provide assistance in respect of any inquiry into or concerning this

Head Agreement, an Entity Deed or any Order. For this purpose,

an inquiry includes any administrative or statutory review, audit or

inquiry (whether within or external to Finance or the Customer's

organisation), any request for information directed to Finance or

the Customer, and any inquiry conducted by Parliament, any

Parliamentary committee or any other party specified by Finance.

30.3 Conduct of audit and access

(a) The Contractor must provide access to its computer hardware and

software to the extent necessary for Finance or the Customer to exercise

its rights under this clause 30, and provide Finance or the Customer, or

their nominee, with any reasonable assistance requested by Finance or

the Customer to use that hardware and software.

(b) Finance and the Customer must use reasonable endeavours to ensure

that:



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(i) audits performed pursuant to clause 30.1(a); and

(ii) the exercise of the general rights granted by clauses 30.2(a) and

30.2(b),

do not unreasonably delay or disrupt in any material respect the

Contractor's performance of its obligations under this Head Agreement,

an Entity Deed or any Order.

30.4 Costs of audit - default provision

(a) Subject to clause 30.5, each party must bear its own costs of all

inspections, access and audits.

30.5 Costs of audit - inaccurate Prices in invoices and Service Levels not met

(a) The Contractor must pay the cost of any audit that demonstrates the

Contractor:

(i) has issued the Customer an invoice with incorrect Prices; or

(ii) has not met the Service Levels under Clause 27.1(b)(iii) and

27.1(b)(iv).

(b) Where clause 30.5(a) applies, any amount owed by the Contractor is

recoverable under clause 11.6.

(c) Any amount payable by the Contractor under clause 30.5(a) must be

reduced proportionally to the extent that the audit examined matters

other than invoicing and / or Service Levels.

(d) The Contractor acknowledges that any liability it incurs under clause

30.5(a) is genuine pre-estimate of the loss given the whole of

government operation of the arrangement.

30.6 Auditor-General, Privacy Commissioner and Ombudsman

The rights of Finance and the Customer under clauses 30.2(a) and 30.2(b)

apply equally to the Auditor-General or a delegate of the Auditor-General, the

Privacy Commissioner or a delegate of the Privacy Commissioner and the

Ombudsman or a delegate of the Ombudsman for the purpose of performing

the Auditor-General's, the Privacy Commissioner's or Ombudsman's statutory

functions or powers (each an Authorised Investigator).

30.7 Contractor to comply with Authorised Investigator's requirements

The Contractor must do all things necessary to comply with the requirements of

an Authorised Investigator, provided such requirements are legally enforceable

and within the power of the Authorised Investigator.

30.8 No restriction

Nothing in this Head Agreement, any Entity Deed or any Order reduces, limits

or restricts in any way any function, power, right or entitlement of an Authorised

Investigator. The rights of Finance and the Customer under this clause 30 are



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in addition to any other power, right or entitlement of an Authorised

Investigator.

30.9 No reduction in responsibility

The requirement for, and participation in, audits does not in any way reduce the

Contractor's responsibility to perform its obligations in accordance with this

Head Agreement, any Entity Deed or any Order.

30.10 Consequences of audit

The Contractor must promptly take, at no additional cost to Finance or the

Customer, corrective action to rectify any error, non-compliance or inaccuracy

identified in any audit relating to the way the Contractor has performed its

obligations under this Head Agreement, any Entity Deed or any Order,

including the way the Contractor has:

(a) supplied any Deliverable; or

(b) calculated Charges, or any other amounts or fees billed to the Customer.

30.11 Survival

This clause 30 applies for the Term and for a period of seven years from the

termination or expiry of this Head Agreement, any Entity Deed or any Order,

whichever is later.

31 Security

31.1 Compliance with Finance and Customer requirements

(a) The Contractor must comply with, and must ensure that Contractor

Personnel comply with, all relevant security procedures (including, as

applicable, the Australian Government Protective Security Policy

Framework (outlined at www.protectivesecurity.gov.au), and the

Australian Government Information Security Manual and the Defence

Security Manual) (outlined at www.asd.gov.au), as updated from time to

time (as applicable to the Services) and any other security requirements

as specified by Notice from Finance or the Customer (including the

requirements set out in any Entity Deed) to the Contractor.

(b) The Contractor must, if requested by Finance or a Customer, attend

security briefings to ensure that the Contractor is aware of its security

obligations.

(c) The Contractor must comply with such a security procedure or other

security requirement immediately if directed by Finance or the Customer

or, if no direction is issued, within a reasonable time, having regard to the

nature of the requirement.

(d) The Contractor must send Finance and the Customer a Notice identifying

any potentially relevant security procedure or other security requirement

of Finance or the Customer of which it is aware and which is not the

subject of a Notice in accordance with clause 31.1(a).

http://www.protectivesecurity.gov.au/

http://www.asd.gov.au/



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31.2 Security clearance

(a) The Customer may, from time to time, Notify the Contractor of the level

of security or access clearance required for Contractor Personnel in

respect of the performance of a particular Order, and of the date from

which, or the period during which, that clearance will be required and the

Contractor must comply with, and ensure that Contractor Personnel act

in accordance with, that Notice.

(b) The Contractor is responsible for all costs associated with obtaining any

security clearances at or below the ‘Protected/Restricted’ level. If a

Customer requires the Contractor to obtain a security clearance above

the ‘Protected/Restricted’ level, the Customer and the Contractor will use

their reasonable efforts to agree arrangements for the costs associated

with obtaining such security clearance. Any dispute between the parties

as to the cost of obtaining security clearances will be resolved in

accordance with the dispute resolution procedures specified in

clause 45.

(c) If the Customer denies access to or requests removal of any Personnel

on the basis that they have failed to obtain or ceased to hold the level of

security or access clearance required by a Notice issued in accordance

with clause 31.2(a) within the time specified in the Notice, the Contractor

must provide suitable replacement Personnel in accordance with

clause 25.1(b)(ii).

31.3 Protection of Customer data

(a) The Contractor must not, and must ensure that Contractor Personnel do

not, without the Customer's prior written consent:

(i) remove Customer data or allow Customer data to be removed from

the Customer's premises; or

(ii) remove Customer data or allow Customer data to be removed from

the Contractor's premises; or

(iii) take Customer data or allow Customer data to be taken or

transmitted by any means outside of Australia.

(b) The Contractor must immediately Notify Finance and the Customer, and

must comply with all directions of Finance or the Customer, if the

Contractor becomes aware of any contravention of the Customer’s data

security requirements.

(c) The Contractor acknowledges and agrees that:

(i) the Customer holds and deals with highly sensitive information;

(ii) Finance and the Customer are concerned that such information is

not improperly used or disclosed contrary to this Head Agreement,

an Entity Deed or any Laws; and



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(iii) use or disclosure of such information contrary to this Head

Agreement or an Entity Deed may constitute a breach to which

clause 43.1(a) applies.

31.4 Misuse of Finance or Customer information

The Contractor acknowledges and agrees that:

(a) any unauthorised access, alteration, removal, addition, possession,

control, supply or impediment to the access, reliability, security or

operation of information held in any computer (or, in some cases, any

storage device) in the course of providing the Deliverables may be an

offence under Part 10.7 of the Criminal Code (Cth) for which there are a

range of penalties, including a maximum of ten years imprisonment;

(b) the giving of false and misleading information to Finance or a

Commonwealth Entity or their Personnel is a serious offence under

Division 137 of the Criminal Code (Cth); and

(c) the publication or communication of any fact or Document by a person

which has come to their knowledge or into their possession or custody by

virtue of the performance of this Head Agreement, any Entity Deed, or

any Order (other than to a person to whom the Contractor is authorised

to publish or disclose the fact or Document) may be an offence under

section 70 of the Crimes Act 1914 (Cth), the maximum penalty for which

is two years imprisonment and section 79 of the Crimes Act 1914 (Cth),

the maximum penalty for which is seven years imprisonment.

32 Compliance with Laws The Contractor must in carrying out its obligations under this Head Agreement,

any Entity Deed and any Order, comply with all applicable Laws.

33 Commonwealth Government policy

33.1 Policy

The Contractor must, in performing its obligations under this Head Agreement,

any Entity Deed, and any Order, comply (and must ensure its Personnel and

Subcontractors comply) with applicable Commonwealth policies if those

policies are publicly available or Notified to the Contractor.

33.2 Fraud

(a) The Contractor must comply with the Commonwealth Fraud Control

Guidelines (2011).

(b) The Contractor must Notify Finance immediately if it knows or has

reason to suspect that any fraud has occurred or is occurring or is likely

to occur in relation to this Head Agreement, any Entity Deed or any

Order (including by the Contractor, Contractor Personnel, Subcontractors

and suppliers).



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33.3 Anti-discrimination

(a) The Contractor must comply with its obligations, if any, under the

Workplace Gender Equality Act 2012 (Cth).

(b) The Contractor must comply with such other Commonwealth, State or

Territory Laws relevant to anti-discrimination as may be relevant to any

Entity Deeds or any Order.

(c) The Contractor must use its reasonable endeavours to provide

employment opportunities to Aboriginal and Torres Strait Islander people

where there are positions available and there are Aboriginal or Torres

Strait Islander people available with suitable qualifications, experience

and expertise.

33.4 Environment

(a) The Contractor must perform its obligations under this Head Agreement,

any Entity Deed and any Order in a way that does not place Finance or

the Customer in breach of any applicable environmental Law including

the Environment Protection and Biodiversity Conservation Act 1999

(Cth).

(b) The Contractor must comply with:

(i) the Commonwealth Energy Policy – Energy Efficiency in

Government Operations (EEGO) Policy; and

(ii) the Commonwealth Waste Policy – National Waste Policy.

(c) The Contractor must seek to implement any best practice environmental

or green standards applicable to the Deliverables and must implement

any such standards or future environmental policies as they emerge

which are Notified to it by Finance.

33.5 Hazardous Substances

(a) The Contractor must restrict the use of Depleting Substances, Volatile

Organic Compounds or Hazardous Substances in the Deliverables and

the manufacture of the Deliverables except for those substances

authorised in writing by Finance.

(b) The Contractor must ensure that, for all Hazardous Substances:

(i) full details of the authorised substances incorporated into the

Deliverables, including the location and protective measures

adopted, are provided to Customer in the format of a Material

Safety Data Sheet in accordance with NOHSC: 2011 (2003)

'National Code of Practice for the Preparation of Material Safety

Data Sheets, 2nd Edition';

(ii) all Documentation supporting the Deliverables clearly identifies the

nature of the hazard; and



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(iii) all Deliverables containing the authorised substance are labelled to

clearly identify the nature of the substance and its associated

hazards.

(c) To the extent consistent with their function, the Deliverables must not

emit fumes, liquids, solids, heat, noise, electromagnetic or other

radiation, which could be detrimental to Personnel, the environment or

the operation of other equipment.

33.6 Indigenous Procurement Policy

(a) The Contractor acknowledges and agrees that:

(i) it is Commonwealth policy to stimulate Indigenous

entrepreneurship and business development, providing Indigenous

Australians with more opportunities to participate in the economy

(see the Indigenous Procurement Policy available on the

Indigenous Procurement Website at www.dpmc.gov.au/ipp for

further information).

(b) The Contractor must use its reasonable endeavours to increase its:

(i) purchasing from businesses operated by organisations that are

50% or more Indigenous owned (Indigenous Enterprises); and

(ii) employment of Indigenous Australians,

in the performance of the Contract.

(c) Purchases from Indigenous Enterprises may be in the form of

engagement of an Indigenous Enterprise as a Subcontractor and use of

Indigenous Enterprises in the Contractor's supply chain.

(d) The Contractor must comply with any directions by the Finance

Representative required to ensure that the Contract meets the applicable

requirements, if any, of the Indigenous Procurement Policy (including the

development of an Indigenous Participation Plan and necessary

reporting on the implementation of that plan).

33.7 Australian Industry Participation Plan (AIP Plan)

(a) The Contractor must comply with the AIP Plan in performing this Head

Agreement, any Entity Deed and any Orders.

(b) The Contractor must include appropriate provisions in its contracts with

Subcontractors to ensure that the Contractor is able to meet its

obligations under clause 33.7(a).

(c) If any conflict arises between any part of the AIP Plan and any other part

of this Head Agreement, any Entity Deed or any Order, the other part of

this Head Agreement, the Entity Deed or the Order prevails.

(d) The AIP Plan must not be construed as limiting the Contractor‘s

responsibility to provide the Deliverables in accordance with, and

otherwise to comply with, the requirements of this Head Agreement, all

Entity Deeds and each Order.



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(e) If the AIP Plan included in Annexure F has a validity period that expires

before the end of the Term of this Head Agreement, the Contractor must

ensure that a replacement AIP Plan is approved by the Department of

Industry before the expiry of the validity period.

(f) The Contractor must provide a copy of the replacement AIP Plan upon

request from Finance or any Customer.

33.8 AIP Plan Reporting

(a) The Contractor must provide to Finance an AIP Plan Implementation

Report that meets the AIP Plan Implementation Report Requirements

within 60 days after each anniversary of the Commencement Date of this

Head Agreement.

(b) If Finance considers that an AIP Plan Implementation Report does not

meet the AIP Plan Implementation Report Requirements, Finance may

by written Notice to the Contractor reject the AIP Plan Implementation

Report. If Finance rejects the AIP Plan Implementation Report, Finance

will provide to the Contractor reasons for the rejection.

(c) If Finance rejects the AIP Plan Implementation Report pursuant to

clause 33.8(b), the Contractor must provide to Finance the AIP Plan

Implementation Report, amended to address the reasons advised by

Finance and that otherwise meets the AIP Plan Implementation Report

Requirements, within 10 Business Days of the date of the Notice issued

under clause 33.8(b).

33.9 Right to publicise AIP Plan and AIP Report information

The Contractor acknowledges that Finance may:

(a) publicise or report on the Contractor's performance in relation to and

level of compliance with the AIP Plan; and

(b) publicise or report on any information contained in the AIP Plan or an

AIP Plan Implementation Report provided pursuant to this Head

Agreement, any Entity Deed or any Order.

33.10 Access by foreign service providers

(a) The Contractor must not, except as approved in advance in writing by

the Finance Representative:

(i) transmit or store outside of Australia any information of an Entity

acquired by the Contractor, or to which the Contractor has gained

access, in the performance of any Entity Deed or an Order

(including personal information, other information held by the Entity

in the performance of its functions and information about the

information technology products, systems or architecture of the

Entity); or

(ii) permit or enable access by a person outside of Australia to any of

the information referred to in clause 33.10(a)(i).



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(b) Any request for the approval of the Finance Representative may be:

(i) granted or rejected by the Finance Representative in its absolute

discretion and with or without giving reasons; and

(ii) given subject to conditions, in which case the Contractor must

comply with those conditions prior to and during the transmission,

storage or access which has been permitted.

33.11 Compliance with Work Health and Safety

The Contractor and Contractor Personnel must, in carrying out the Services

under this Head Agreement, any Entity Deed and any Order:

(a) comply with its obligations under any Applicable WHS Law and with all

applicable laws, standards and policies, and requirements of this Head

Agreement, any Entity Deed and any Order that relate to health and

safety;

(b) ensure, as reasonably practicable, that the health and safety of other

persons (including Finance personnel) is not put at risk;

(c) cooperate with Finance in relation to work health and safety duties;

(d) at its own expense, comply with any direction given by Finance or Entity

in connection with work under this Head Agreement, any Entity Deed

and any Order (including the Services) that Finance considers

reasonably necessary to deal with an event or circumstance that has, or

is likely to have, an adverse effect on the health or safety of persons;

(e) immediately report to Finance any event or circumstance that has, or is

likely to have, an adverse effect on the health or safety of persons,

including, upon request, providing a written report of the events and

steps or preparations taken to prevent a recurrence of the event.

34 Export Approvals and Imported Supplies (a) Where necessary, the Contractor will obtain all necessary valid export

licences or other approvals to meet the requirements of an Entity Deed

or an Order. The Contractor will provide, on request by the Customer

Representative, a copy of any licence, or proof that such licence or

approval has been obtained.

(b) The Contractor will Notify the Customer Representative in writing within

ten (10) Business Days of becoming aware of the refusal, revocation or

any qualification of any export licence or other approval. In such an event

the Contractor will comply with any reasonable direction of the Customer

Representative on how the Customer proposes to deal with any issue

under this clause 34(a).

35 Standards and Codes (a) The Contractor must, in supplying Deliverables, comply with:



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(i) any standards specified in an Entity Deed or an Order;

(ii) if there are no standards specified, any applicable Australian or

New Zealand standards that are consistent with the Specifications;

or

(iii) if there are no standards specified and no applicable Australian or

New Zealand standards, any applicable international standards

that are consistent with the Specifications.

(b) The Contractor must:

(i) in supplying Deliverables, comply with any industry codes or best

industry practice methodologies specified in the Entity Deed or an

Order;

(ii) perform its obligations under an Entity Deed or an Order in such a

way that the Commonwealth is able to participate in any necessary

inspections of work in progress and tests or evaluations of the

Deliverables, and is able to maintain full use of the Deliverables for

the purposes for which they are delivered without being in breach

of any work health and safety Laws; and

(iii) provide a certificate to Finance on each anniversary of

Commencement Date of this Head Agreement certifying that it has

complied with this clause 35.

36 Review and testing (a) The Customer reserves the right to inspect or conduct testing of the

Stationery and Office Supplies (Tested Item) to satisfy itself that those

Tested Items meet the Specifications and the Customer’s requirements.

Where required by the Customer, the Contractor must conduct, or assist

in the conduct of, such testing.

(b) If, after testing, the Customer is not satisfied that a Tested Item meets

the Customer’s requirements and the Specifications, then the Customer

may, at its option, do one or more of the following:

(i) require the Contractor to make modifications to the Tested Items,

or supply replacement Tested Items, so they meet the Customer’s

requirements and the Specifications, in which case the Customer

may further testing under this clause 36;

(ii) withhold payments under the relevant Order until such time as the

Tested Items meet the Customer’s requirements and the

Specifications;

(iii) where a Tested Item has failed review or testing more than once,

reject the Tested Item and terminate the relevant Order. If the

Customer exercises its rights under this clause 36(b)(iii), then,

without prejudice to the Customer’s other rights and remedies, the



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Contractor must refund all Charges and other amounts paid by the

Customer under the applicable Order; or

(iv) conditionally accept the Tested Item on such terms and conditions

that the Customer considers appropriate include a reduction in the

Fees.

(c) Where the Customer is satisfied after reviewing or testing a Tested Item

that it meets the Customer’s requirements and the Specifications, then

the Customer will promptly Notify the Contractor that the Tested Item has

passed the review or tests. Any review, testing or notification by the

Customer does not constitute any waiver of rights, or give rise to any

estoppels, if the Tested Item is later found not to comply with the

Customer’s requirements and the Specifications.

37 Statement of Requirement

37.1 Creation of the Statement of Requirement

The Contractor acknowledges that Finance has:

(a) conducted an RFT process which sets out its requirements for

Deliverables;

(b) evaluated which of the Contractor’s Stationery and Office Supplies meet

the Commonwealth's requirements;

(c) created the Statement of Requirement (Annexure B) which sets out:

(i) the Stationery and Office Supplies which the Contractor is entitled

to offer to supply to Entities pursuant to this Head Agreement;

(ii) the Specifications for Stationery and Office Supplies;

(iii) Service Levels that apply to Products and Services supplied

pursuant to this Head Agreement; and

(iv) the applicable Prices.

37.2 Limitation to use of the SOS Products and Services

(a) The Contractor must not supply Stationery and Office Supplies to Entities

unless:

(i) those Stationery and Office Supplies have been approved by

Finance and are included in the Statement of Requirements

(Annexure B); and

(ii) the item of Stationery and Office Supplies have been included by

the Customer in the Customer Catalogue (Annexure H) in

accordance with clause 8.1(b)(i).

37.3 Capped Prices

(a) The Contractor acknowledges that Finance established the Panel to

ensure that Entities have access to the lowest possible Prices for items

of Stationery and Office Supplies or Services that are fit for purpose.



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(b) If the Contractor offers to the public, for more than 7 days, any Stationery

and Office Supplies for a price that is less than the Price set out in the

Statement of Requirements (Reduced Price), for any reason including:

(i) stock liquidation or promotion; or

(ii) a discount, coupon, credit, offset or voucher,

then the Contractor must:

(i) immediately Notify Finance in accordance with clause 47;

(ii) update Customer Catalogues to reflect the Reduced Price; and

(iii) apply the Reduced Price to all Orders received after the date of

Notification under this clause 37.3(b)(ii).

(c) The Contractor acknowledges that a failure of it to promptly comply with

this clause 37.3 will be a material breach of this Head Agreement.

37.4 Price Annual Review

(a) The Contractor must not increase a Price or Cost Plus Percentage for

Stationery and Office Supplies except in accordance with this clause

37.4 and clause 37.5.

(b) The Contractor and Finance will conduct an annual review of the Prices

(Price Annual Review) as follows:

(i) the Contractor may apply in writing to Finance within 30 Business

Days before the end of each anniversary of the Commencement

Date for a Price Adjustment to be effected for each succeeding

period; or

(ii) Finance may Notify the Contractor in writing that it wishes to hold a

review before the end of the relevant anniversary of the

Commencement Date and state the reasons for that review. If

Finance Notifies the Contractor under this clause 37.4(b)(ii), the

Contractor must provide a response including the information in

clause 37.4(iii) within 30 Business Days of receiving the Notice

from Finance.

(iii) The Contractor must provide adequate reasons and

documentation to justify its proposed Price Adjustment including

objective evidence demonstrating:

(A) the direct costs of providing the Deliverables;

(B) any increases or decreases in costs since the

Commencement Date, or the last date of a Price Adjustment,

by reference to relevant consumer price, labour, materials,

financial and technology dividends; and

(C) the economically efficient operation of the Contractor.

(iv) On receipt of the application for a Price Adjustment under clause

37.4(b), Finance may undertake one or more of the following acts:



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(A) seek further information from the Contractor in relation to the

application;

(B) seek advice from a Customer’s or Finance’s advisers in

relation to the application or the justification;

(C) evaluate the application; and

(D) assess the justification by the Contractor for a Price

Adjustment by benchmarking the proposed Price Adjustment

against other consumer price, labour, materials, financial

and technology dividends or similar applications by other

Panellists or other operators in the Stationery and Office

Supplies industry.

(c) Subject to the Contractor providing Finance with adequate reasons and

documentation in accordance with clause 37.4(b)(iii), and in considering

the justification for such adjustment in accordance with

clause 37.4(b)(iv)(D), Finance will, acting reasonably, approve or reject

a proposed Price Adjustment within 30 Business Days of the application

for the Price Adjustment having been made by the Contractor.

(d) In addition to the Annual Review described in clause 37.4(b), if

exceptional circumstances arise during the Term such that the

Contractor is unable to supply any item of Stationery and Office Supplies

or Services at the Price set out in the Statement of Requirement, the

Contractor may make an application for a Price Adjustment for that item

and the process in clause 37.4(b)(iii) to clause 37.4(b)(iv) will apply to

that item. Finance may approve or reject a proposed Price Adjustment

under this clause 37.4(d) in its absolute discretion.

(e) In exercising its rights under clause 37.4(c) or clause 37.4(d), Finance

may approve a Price Adjustment that is different to that sought by the

Contractor, or after considering the justification for a Price Adjustment

made by the Contractor under clause 37.4(b), or as a result of a review

initiated by Finance under clause 37.4(b)(ii), Finance may, acting

reasonably, reduce the Price or Cost Plus Percentage mark-up

percentage.

(f) A Price Adjustment approved by Finance applies to:

(i) the applicable Price/s in the Statement of Requirement;

(ii) the applicable Price/s in each Customer Catalogue to the extent

the items for which the Price Adjustment applies are set out in a

Customer Catalogue; and

(iii) all Orders made on or after the date on which Finance approves

the Price Adjustment, provided that a Price Adjustment must not

be applied retrospectively and any Orders entered into for the

supply of Stationery and Office Supplies or Services will continue.



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(g) A Price adjustment should be actioned in the SOS Product List set out in

the Statement of Requirement and Services Catalogue and Customer

Catalogue/s by the Contractor immediately after Finance’s approval.

(h) The amended Price in the Statement of Requirement will become the

basis from which any future applications for Price Adjustments will be

calculated and assessed in accordance with this clause 37.4.

(i) If the Contractor disputes a determination of Finance under this clause

37.4, the dispute will be resolved in accordance with the dispute

resolution procedures specified in clause 45.

(j) The supply of Stationery and Office Supplies by the Contractor must not

be withheld or disrupted by the processes or any disputes involved in the

Price Adjustment arrangements under this clause 37.4.

37.5 Price Adjustment for Volatile Products

(a) The Contractor and Finance will conduct a 6 monthly review of the

Volatile Products set out in the SOS Product List as follows:

(i) The Contractor may apply in writing to Finance within 30 Business

Days before the end of each 6 month period for a Price Adjustment

to be effected for each succeeding period.

(ii) Finance may Notify the Contractor in writing that it wishes to hold a

review before the end of the relevant 6 month period and stating

the reasons for that review. If Finance Notifies the Contractor

under this clause 37.5(a)(ii), the Contractor must provide a

response to this Notification, including the information in clause

37.5(a)(iv), within 30 Business Days of receiving the Notice from

Finance.

(iii) The Contractor must, when applying for a Price Adjustment under

clause 37.5(a)(i), provide adequate reasons and documentation to

justify the proposed Price Adjustment.

(iv) The application for a Price Adjustment under clause 37.5(a) must

include:

(A) the Price broken down into its constituent components,

including the Charge attributable to the Volatile Products and

taxes, and a model of the costs of the various elements of

the Contractor’s business attributable to, and necessary for

use, in supplying the Volatile Products; and

(B) objective evidence demonstrating the cost drivers of the

proposed adjustment and their effect on:

(1) the direct costs of providing the Volatile Products;

(2) any increases or decreases in costs since the

Commencement Date, or the last date of a Price

Adjustment, by reference to relevant consumer price,



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labour, materials, financial and technology dividends;

and

(3) the economically efficient operation of the Contractor.

(v) On receipt of the application for a Price Adjustment under clause

37.5(a)(i) Finance may, acting reasonably, undertake one or more

of the following acts:

(A) seek further information from the Contractor in relation to the

application;

(B) seek advice from a Customer’s or Finance’s advisers in

relation to the application or the justification;

(C) evaluate the application; and

(D) assess the justification by the Contractor for a Price

Adjustment by benchmarking the Price Adjustment against

other consumer price, labour, materials, financial and

technology dividends or similar applications by other

Panellists or other operators in the stationery and office

supplies industry.

(b) Subject to the Contractor providing Finance with adequate reasons and

documentation in accordance with clause 37.5(a)(iii), and in considering

the justification for such adjustment in accordance with

clause 37.5(a)(v), Finance will, acting reasonably, approve or reject a

proposed Price Adjustment within 30 Business Days of the application

for the Price Adjustment having been made by the Contractor.

(c) In exercising its rights under clause 37.5(b), Finance may approve a

Price Adjustment that is different to that sought by the Contractor, or

after considering the justification for a Price Adjustment made by the

Contractor under clause 37.5(a)(i), or as a result of a review initiated by

Finance under clause 37.5(a)(ii) Finance may, acting reasonably,

reduce the Price.

(d) A Price Adjustment approved by Finance applies:

(i) immediately amend the Prices for the applicable Volatile Product in

the SOS Product List set out in the Statement of Requirement;

(ii) immediately amend the Prices in each Customer Catalogue to the

extent the Volatile Products for which the Price Adjustment applies

are set out in that Customer Catalogue; and

(iii) to all Orders made on or after the date on which Finance approves






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(e) The amended Price in the Statement of Requirement will become the

basis from which any future applications for Price Adjustments will be

calculated and assessed in accordance with this clause 37.5.

(f) If the Contractor disputes a determination of Finance under this clause

37.5, the dispute will be resolved in accordance with the dispute

resolution procedures specified in clause 45.

(g) The supply of Stationery and Office Supplies by the Contractor must not

be withheld or disrupted by the processes or any disputes involved in the

Price Adjustment arrangements under this clause 37.5.

37.6 Changes to Deliverables set out in the Statement of Requirement

(a) The Contractor must Notify Finance as soon as it becomes aware of any

required change to the Deliverables set out in the Statement of

Requirement, including:

(i) any changes to the SOS Product List or the Service Levels;

(ii) product Obsolescence or unavailability (in which case the

Contractor must propose a suitable replacement product); and

(iii) any proposed new products.

(b) Any changes to the Specifications or replacement products proposed by

the Contractor under clause 37.6(a):

(i) must meet the 'minimum requirements' set out in the Specifications

and, where possible, be the successor in the product line or within

the same product family;

(ii) must be offered at the same Price (subject to clauses 37.4 and

37.5); and

(iii) will be subject to the approval of Finance (in accordance with

clause 37.6(g)).

(c) Where the Contractor does not have an approved product for a Line Item

in the Product List, and would like to propose a new product under

clause 37.6(a), the proposed new product:

(i) must meet the 'minimum requirements' set out in the

Specifications; and

(ii) will be subject to the approval of Finance (in accordance with

clause 37.6(g)).

(d) Where the Contractor would like to propose a new product under clause

37.6(c), that is not currently listed in the Product List, the Contractor

must:

(i) provide a comprehensive justification for the inclusion of a new

product to the Product List;



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(ii) provide the technical, performance and safety specifications for the

proposed new product (as appropriate);

(iii) provide a product price;

(iv) indicate if a proposed new product is to be identified as a Volatile

Product; and

(e) Finance may request test samples and demonstrations for such

changed, new or replacement products in its discretion.

(f) The Contractor acknowledges and agrees that the removal, replacement

or change to the SOS Product List or SOS Services or Service Levels

specified in the Statement of Requirement will not affect any obligation of

the Contractor to supply or service that item in accordance with the terms

of an existing Order.

(g) Finance may accept, or reject, or request amendments to the

Contractor’s proposal provided in accordance with clause 37.6(a) in its

discretion. Where Finance approves the Contractor’s proposal (including

as amended), the Statement of Requirement and each Customer

Catalogue will be deemed updated accordingly from the date of receipt

of Notice of Finance’s approval.

(h) Finance may Notify the Contractor that it wishes to change the SOS

Deliverables set out in the Statement of Requirement. Within 5 Business

Days of receiving such Notice from Finance, the Contractor must submit

a revised Statement of Requirements to Finance for approval. The

Statement of Requirement and each Customer Catalogue will be

deemed updated accordingly from the date of receipt of Notice of

Finance’s approval.

37.7 Benchmarking

(a) From time to time during the Term, Finance may:

(i) directly perform or engage an independent benchmarker to test the

market for any or all of the products or Services contained in the

Statement of Requirement;

(ii) undertake benchmarking of some or all of the products or Services

contained in the Statement of Requirement including Prices and

Charges in part or in aggregate where:

(A) Finance intends to refresh the Panel (at the Head

Agreement or Entity Deed or Order level); or

(B) to determine if the SOS Product List, Prices (including Cost

Plus Percentage) and Charges are competitive with, then

current market prices and standards for similar products.

(b) Benchmarking will be conducted in accordance with the timing and

procedures as determined by Finance.



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(c) Without limiting the rights of Finance, Finance may release

benchmarking results to:

(i) other Entities;

(ii) Ministers and their advisors;

(iii) Parliament or Parliamentary Committees; and

(iv) advisers to Finance who have executed a confidentiality

undertaking substantially in the form of Schedule 1 – Attachment 2

(Deed of Confidentiality).

(d) If the benchmarking indicates that the Charges are not priced

competitively for similar Deliverables, unless the Contractor satisfies

Finance that the difference in Charges is due to the relevant Contract's

unique requirements and not due to the Contractor's performance:

(i) the Contractor agrees to assist Finance to determine the causes of

the benchmarking findings and proactively seek resolution within

20 Business Days;

(ii) if no resolution is reached within 20 Business Days, the Charges

(including the Charges payable under any Contract) will be

deemed to be reduced by the amount of the excess determined by

Finance;

(e) The reduced charges will apply to:

(i) the applicable Price/s in the Statement of Requirement;

(ii) the applicable Price/s in each Customer Catalogue to the extent

the items for which the Price Adjustment applies are set out in that

Customer Catalogue; and

(iii) all Orders made on or after the date on which Finance approves




(f) The reduced Charges must be reflected in subsequent invoices or may

be set–off by a Customer against any invoice received under a Contract.

(g) A Dispute in relation to benchmarking will be resolved in accordance with

clause 45.

(h) An Entity may join in any benchmarking Finance undertakes of the

Contractor's provision of the Deliverables set out in the Statement of

Requirement under this clause 37.7.

(i) Each party must bear its own costs in relation to clause 37.7.



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38 Transition-In (a) If required in any Entity Deed, the Contractor must submit a draft

Transition-In Plan within 10 Business Days of the Commencement Date

of the Entity Deed.

(b) The Customer’s Representative will review the draft Transition-In Plan

and will, within 10 Business Days of the submission of the draft

Transition-In Plan, Notify the Contractor:

(i) that it approves the draft Transition-In Plan; or

(ii) of its comments that it requires to be included in the draft

Transition-In Plan.

(c) If the Contractor receives a Notice in accordance with clause 38(b)(ii),

the Contractor must, within 3 Business Days, submit the revised draft

Transition-In Plan to the Customer’s Representative whereupon the

provisions of this clause 38 will reapply to the revised draft Transition-In

Plan.

(d) The Transition-In Plan must include the following:

(i) a description of the methods and procedures, personnel and

organisation the Contractor will use to perform the transition;

(ii) a schedule of transition activities;

(iii) a detailed description of the respective roles and responsibilities of

the Customer and the Contractor;

(iv) such other information and planning as are necessary to ensure

that the migration takes place on schedule and without disruption

to the Customer’s operations; and

(v) such other information described in an Entity Deed.

(e) The Contractor and each Customer will each perform the tasks required

of it by the Transition-In Plan. Having regard to the business

requirements of the Customer, the Contractor will be responsible for

overall management of the transition and must use diligent efforts to

keep the transition on schedule and to identify and resolve, or assist

each Customer in the resolution of, any problems encountered in the

timely completion of each task, whether the task is the responsibility of

the Contractor or a Customer.

39 Transfer of title and risk (a) Title in Stationery and Office Supplies purchased by a Customer passes

to the Customer:

(i) on Acceptance, for Deliverables that are to be Accepted;

(ii) on delivery to the Customer for Deliverables that are not required

to be Accepted; and



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(iii) on replacement, in respect of items replaced by the Contractor

pursuant to clause 20.2.

(b) The Customer accepts risk for loss of or damage to the Stationery and

Office Supplies from the time the Customer takes delivery of the

Stationery and Office Supplies, except to the extent that the loss or

damage is caused or contributed to by the Contractor or its Personnel.

40 Delivery

40.1 Delivery

Without limiting any other provision of this Head Agreement or an Entity Deed,

the Contractor must supply to the Customer the Deliverables:

(a) to the Delivery Point as specified in the Order;

(b) to meet the applicable Specifications;

(c) to achieve Acceptance when required;

(d) with due skill and care and to the best of the Contractor’s knowledge and

expertise;

(e) in accordance with all Laws applicable to the Contractor as a provider of

products and services; and

(f) in accordance with all Commonwealth policies applicable to this Head

Agreement, any Entity Deed and any Order.

40.2 Cooperation with Personnel

The Contractor must, at no additional cost to the Customer, in the performance

of its obligations under this Head Agreement, an Entity Deed or an Order:

(a) fully cooperate with the Customer Personnel; and

(b) use its best efforts to coordinate its activities so as to support and

facilitate, in the Customer’s best interests, the timely and efficient

completion of all work and other activities to be performed for the

Customer by any person.

40.3 Cooperation with other contractors

The Contractor must, at no additional cost to the Customer, in the performance

of its obligations under this Head Agreement, an Entity Deed or an Order, fully

cooperate with third party contractors including other Panellists appointed by

the Customer who supply the same, similar or other products or services to the

Customer (Third Parties) including to:

(a) work together in a collaborative manner, co-operatively and productively

with Third Parties (including providing all reasonable co-operation and

assistance requested by Third Parties):

(i) to meet a Customer’s business requirements, agreed objectives

and obligations under this Head Agreement, an Entity Deed or any

Order;



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(ii) so that Customers receive a seamless, end-to-end service within a

potentially multi-contractor environment; and

(iii) so that Customers are not adversely affected by Deliverables

being provided from multiple sources;

(b) establish working relationships with Third Parties, including as

necessary, through clarifying responsibilities, objectives, expectations,

requirements and priorities with Third Parties;

(c) develop efficient communications with Third Parties including proactively

communicating and sharing information with Third Parties in a

meaningful, timely and contractually sensitive and compliant manner;

(d) use any co-operation processes and procedures or engagement models

specified by Finance or a Customer from time to time and seek to

improve these processes, procedures and models over time to improve

the performance of the Contractor and other Panellists;

(e) know and understand the responsibilities of Third Parties that interact

with the Contractor;

(f) be flexible and efficiently, ethically and professionally deal with and act

towards Third Parties to address any changes to a Customer’s business

over time;

(g) work with the Customer and Third Parties to solve issues with Third

Parties in an efficient, effective and ethical manner prior to instituting a

Dispute in relation to those issues with Third Parties;

(h) use nominated tools and processes or interface with other Third Parties’

tools or processes as required by any Entity Deed or an Order; and

(i) ensure relevant security requirements are adhered to at all times.

40.4 Extension of time

(a) The Contractor must, on becoming aware that it will be unable to meet a

Milestone or any other obligation under an Order, promptly Notify the

Customer and provide details of the cause of the anticipated delay or

failure and of the Contractor’s proposal for managing the delay.

(b) Without limiting the parties’ obligations to minimise and manage risk in

accordance with an Order (including in accordance with any risk

management methodology agreed by the parties), if the Contractor is

delayed in the provision of the Deliverable(s) and the event giving rise to

the delay:

(i) is beyond the Contractor’s reasonable control;

(ii) could not have reasonably been contemplated by the Contractor;

or

(iii) is caused by the Customer,



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the Contractor may request an extension of time for the provision of the

Deliverable(s) in accordance with the variation procedures in clause 44.

(c) If the Customer agrees to any extension of time (such agreement not to

be unreasonably withheld), the parties will vary the Order in accordance

with the variation procedures in clause 44.

40.5 Customer Supplied Items

(a) The Customer must provide the Customer Supplied Items.

(b) The Customer Supplied Items remain the property of the Customer. The

Contractor must return all Customer Supplied Items that are no longer

required for the purposes of this Head Agreement, an Entity Deed, or an

Order to the Customer as soon as practicable (unless other

arrangements are agreed in writing by the parties).


(i) not do any of the following without the prior written approval of the

Customer:

(A) use or allow others to use any Customer Supplied Item other

than for the purposes as specified in this Head Agreement,

the Entity Deed or the Order, whichever is relevant;

(B) part with possession or custody of any Customer Supplied

Items;

(C) create or allow the creation of any lien, charge or mortgage

over any Customer Supplied Item;

(D) modify any Customer Supplied Items; or

(E) remove Customer Supplied Items from the Customer’s

premises or facilities;

(ii) take all reasonable care of all Customer Supplied Items including

accounting for, preserving, installing, storing or handling of

Customer Supplied Items;

(iii) promptly inform the Customer of any loss, destruction or damage

to any Customer Supplied Items and, if requested by the Customer

and to the extent that such loss, destruction or damage has been

caused by the fault of the Contractor or Contractor Personnel, as

soon as practicable replace the Customer Supplied Items at no

cost to the Customer;

(iv) comply with any reasonable instructions of the Customer for

preserving, forwarding or disposing of any damaged Customer

Supplied Items at its own cost provided that such damage has

been caused by the fault of the Contractor or Contractor

Personnel; and



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(v) indemnify the Customer for any loss or destruction of, or damage

to, any Customer Supplied Items of a tangible nature caused by

any act or omission of the Contractor or Contractor Personnel.

40.6 Customer Assistance

(a) The Customer will:

(i) make available, as reasonably requested by the Contractor, any

management decisions, information and approvals that are

reasonably necessary for the Contractor to perform or provide the

Deliverables; and

(ii) if specified in an Entity Deed or an Order, provide to the Contractor

any accommodation, facilities, equipment, furnishings, fixtures,

support and other assistance specified in such Entity Deed or

Order.

(b) The Contractor must comply with any terms set out or referred to in the

Entity Deed or Order, or Notified by the Customer, in relation to any

provision of accommodation, facilities, equipment, furnishings, fixtures,

support or other assistance by the Customer.

41 Documentation (a) The Contractor will ensure that the Documentation, publications and aids

relevant to the Deliverables are:

(i) of a reasonable standard in terms of presentation, accuracy and

scope;

(ii) the most current, accurate and up-to-date versions available at the

date of the Order; and

(iii) published in English with all key terms, words and symbols

adequately defined or explained.

(b) The Contractor must provide the Documentation:

(i) in accordance with this Head Agreement, an Entity Deed or the

applicable Order;

(ii) upon supply of the Deliverables to the Customer or promptly after

a variation to the Documentation;

(iii) at no additional cost to the Customer; and

(iv) in both hard copy and in a consolidated electronic form that is

readable by generally available software products.

(c) The Customer and its Personnel may use the Documentation for any use

in conjunction with the use of the Deliverables including undertaking

other tender processes and auditing or reviewing the Contractor‘s

performance under this Head Agreement, an Entity Deed or the Order.



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(d) The Contractor grants to the Customer the applicable licences in

clause 16 in respect of the Documentation.

(e) Without limiting the Contractor’s obligations under this clause 41, the

Contractor will, on request by Finance, provide such information,

assistance and Documentation as reasonably required by Finance for

the purpose of Finance preparing, updating and distributing guidance in

respect of this Head Agreement (including in respect of any online

process agreed between the Contractor and Finance in accordance with

clause 9.2).

42 Conflict of Interest

42.1 Warranty that there is no Conflict of Interest

The Contractor warrants that, to the best of its knowledge after making diligent

inquiry:

(a) at the date of signing this Head Agreement no Conflict of Interest (either

actual or perceived) exists or is likely to arise in the performance of its

obligations under this Head Agreement or any Orders;

(b) at the date of signing each Entity Deed no Conflict of Interest (either

actual or perceived) exists or is likely to arise in the performance of its

obligations under the Entity Deed; and

(c) at the date of signing each Order no Conflict of Interest (either actual or

perceived) exists or is likely to arise in the performance of its obligations

under the Order.

42.2 Notification of a Conflict of Interest

If, during the performance of this Head Agreement, an Entity Deed or any

Order a Conflict of Interest arises, or appears likely to arise, the Contractor

must:

(a) Notify Finance and the Customer immediately in writing;

(b) make full disclosure of all relevant information relating to the Conflict of

Interest; and

(c) take all steps that Finance or the Customer reasonably requires the

Contractor to take in order to resolve or otherwise deal with the Conflict

of Interest.

43 Termination

43.1 Termination by Finance or the Customer of the Head Agreement, any Entity Deed or Order for default

(a) Without limiting any other rights or remedies Finance or the Customer

may have against the Contractor arising out of or in connection with this

Head Agreement, an Entity Deed or an Order, Finance may terminate

this Head Agreement and a Customer may terminate its Entity Deed or



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any Order to which it is a party, effective immediately, by giving Notice to

the Contractor if:

(i) the Contractor breaches a material provision specified in clause

43.1(c) of this Head Agreement, an Entity Deed or any Order, as

applicable, where that breach is not capable of remedy; or

(ii) the Contractor breaches any provision of this Head Agreement, an

Entity Deed or any Order, as applicable, and fails to remedy the

breach within 10 Business Days or such other timeframe as is

agreed in writing after receiving Notice requiring it to do so; or

(iii) an event specified in clause 43.1(c) happens to the Contractor.

(b) Without limitation, for the purposes of clause 43.1(a)(i), each of the

following constitutes a breach of a material provision:

(i) a failure to comply with clause 6.1(g) (Unauthorised supply to

Entities);

(ii) a failure to comply with clause 12 (Central Administration Fee);

(iii) a failure to comply with clause 16 (Intellectual Property Rights);

(iv) a failure to comply with clause 17 (Confidentiality);

(v) a failure to comply with clause 18 (Privacy);

(vi) breach of a warranty in clause 20 (Warranties);

(vii) a failure to comply with clause 23 (Insurance);

(viii) a failure to comply with clause 37.3(b)(i), clause 37.3(b)(ii) or

clause 37.3(b)(iii)(Capped Prices);

(ix) a failure to Notify Finance and the Customer of a Conflict of

Interest under clause 42 or an inability to resolve a Conflict of

Interest to the reasonable satisfaction of Finance and any affected

Customer; and

(x) a failure to Notify Finance of any Proceedings under clause

20.1(d).

(c) The Contractor must Notify Finance and the Customer immediately if one

or more of the following occurs:

(i) the Contractor disposes of the whole or any part of its assets,

operations or business other than in the ordinary course of

business;

(ii) the Contractor ceases to carry on business;

(iii) the Contractor ceases to be able to pay its debts as they become

due;

(iv) if the Contractor is a corporation, there is any change in the direct

or indirect beneficial ownership or control of the Contractor which

may have an adverse effect on the ability of the Contractor to



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perform its obligations under this Head Agreement, an Entity Deed

or an Order;

(v) if the Contractor is a company, it enters into liquidation or has a

controller or managing controller or liquidator or administrator

appointed;

(vi) if the Contractor is a natural person, they are declared bankrupt or

assign their estate for the benefit of creditors; or

(vii) if the Contractor is a partnership, any step is taken to dissolve that

partnership.

43.2 Termination and reduction for convenience

(a) Finance may by Notice terminate or reduce the scope of this Head

Agreement for convenience without liability to the Contractor.

(b) A Customer may by Notice terminate any Entity Deed for convenience

without liability to the Contractor.

(c) A Customer may by Notice terminate any Order to which it is a party or

reduce the scope of the Deliverables for convenience, and in which case,

the liability of the Customer will be limited to that set out in

clause 43.2(d).

(d) If an Order is terminated pursuant to clause43.2(c), the Customer is

liable only for:

(i) payments due under any Order for Deliverables provided before

the effective date of termination of the relevant Order (less any

amount that the Customer is entitled to deduct); and

(ii) reasonable unrecoverable costs incurred by the Contractor and

directly attributable to the termination.

(e) If the scope of the Deliverables is reduced pursuant to clause 43.2(c),

the Customer’s liability to pay the Charges, to provide Customer

Supplied Items and any other relevant Customer obligations are reduced

in accordance with the extent of the reduction in the Deliverables.

(f) The Customer is not liable to pay compensation under clause 43.2(d)(ii)

in an amount which would, if added to any amounts paid or due, or

becoming due, to the Contractor under the terminated Order, exceed the

total Charges payable to the Contractor pursuant to the Order.

(g) The Contractor is not entitled to compensation for Loss of prospective

profits or any other indirect or consequential losses.

43.3 After termination

(a) On termination (in whole or part) of an Order, the Contractor must:

(i) stop provision of the relevant Deliverables;

(ii) take all available steps to minimise Loss resulting from that

termination and to protect Material in which Intellectual Property



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Rights, Confidential Information or Personal Information of the

Customer or its Personnel subsist;

(iii) in accordance with the directions of the Customer, erase, destroy

or return to the Customer all of the Customer’s Confidential

Information associated with:

(A) if an Order is terminated, the terminated Order; or

(B) if an Order is terminated in part, the terminated part of the

Order;

(iv) follow any reasonable direction of the Customer; and

(v) continue to provide any part of the Deliverables not affected by the

Notice.

(b) On termination (in whole or part) of this Head Agreement or an Entity

Deed, the Contractor must:

(i) take all available steps to minimise Loss resulting from that

termination and to protect Material in which Intellectual Property

Rights or Confidential Information of Finance or any affected

Customer subsist;

(ii) in accordance with the directions of Finance, erase, destroy or

return to Finance or any affected Customer all of their Confidential

Information associated with:

(A) if this Head Agreement is terminated, this Head Agreement;

(B) if this Head Agreement is terminated in part, the terminated

part of this Head Agreement;

(C) if an Entity Deed is terminated, that Entity Deed;

(D) if the Entity Deed is terminated in part, the terminated part of

that Entity Deed;

(iii) follow any reasonable direction of Finance, or in the case of an

Entity Deed, the Customer; and

(iv) continue to perform any part of this Head Agreement or Entity

Deed not affected by the Notice.

43.4 Consequences of Termination

(a) If this Head Agreement, any Entity Deed or any Order is terminated in

whole or in part under this clause 43:

(i) subject to the terms of this Head Agreement, or the relevant Entity

Deed or Order, the parties are relieved from future performance of

the terminated Head Agreement, Entity Deed or Order or part of

them, without prejudice to any rights or remedies that have

accrued at the date of termination;



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(ii) subject to this Head Agreement, or the relevant Entity Deed or

Order, all licences and authorisations relating to or concerning this

Head Agreement or relevant Entity Deed or Order granted to the

Contractor by Finance or the Customer terminate immediately

despite anything to the contrary contained in the licence or

authorisation; and

(iii) the Contractor must comply with all surviving terms of this Head

Agreement or the relevant Entity Deed or Order.

(b) Unless specifically stated in the Notice of termination:

(i) termination of this Head Agreement does not automatically

terminate any Entity Deed or Orders current at that time; and

(ii) Termination of any Entity Deed does not automatically terminate

any Orders current at that time;

however, no new Entity Deed may be formed after termination of this

Head Agreement and no new Orders may be formed after termination of

this Head Agreement or any relevant Entity Deed.

(c) Any right to terminate this Head Agreement or an Entity Deed under this

clause 43 includes a right to terminate any or all relevant Orders current

at that time. The relevant provisions of this Head Agreement or any

relevant Entity Deeds continue to apply to the relevant Orders in place at

that time.

(d) Termination of an Order does not terminate other Orders current at that

time.

43.5 Transition-Out

(a) The Contractor must, at no cost to Finance or the Customer, provide the

following assistance to Finance or the Customer on termination or

expiration of this Head Agreement, or any Entity Deed or Order:

(i) transferring or providing access to Finance or the Customer to all

information, stored by whatever means, held by the Contractor or

under the control of the Contractor in connection with this Head

Agreement or any relevant Entity Deed or Order; and

(ii) making Contractor Personnel available for discussions with

Finance or the Customer as may be required. The time, length and

subject of these discussions will be at the sole discretion of

Finance or the Customer.

(b) The Contractor must also provide all transition out assistance to the

Customer as detailed in any specific Order.



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44 Variations

44.1 Variation to Head Agreement

(a) Only the Finance Representative can agree to the making of variations to

this Head Agreement.

(b) If Finance wants to vary this Head Agreement:

(i) the Finance Representative will request a variation by providing to

the Contractor a draft Change Order as per Annexure I setting out

the proposed variations;

(ii) within 10 Business Days after receiving Finance’s draft Change

Order, or within another period agreed by the parties, the

Contractor must respond in writing to Finance specifying what

impact those variations will have on:

(A) the Prices or the Charges;

(B) the Deliverables;

(C) the Contractor’s ability to perform its obligations under this

Head Agreement, any Entity Deed or any Order; and

(D) this Head Agreement, any Entity Deed and any Order;

(iii) within 10 Business Days after receiving the Contractor’s response,

or within another period agreed by the parties, Finance must give

the Contractor a written Notice approving or rejecting the

response; and

(iv) if Finance approves the response, the parties must promptly

execute the Change Order.

(c) If the Contractor wants to vary this Head Agreement:

(i) the Contractor will request a variation by providing a draft Change

Order to Finance setting out the proposed variations and

specifying what impact those variations will have on:

(A) the Prices or the Charges;


(C) the Contractor’s ability to perform its obligations under this

Head Agreement or any Order; and

(D) this Head Agreement, an Entity Deed and any Order;

(ii) within 10 Business Days after receiving the request, or within

another period agreed by the parties, Finance must give the

Contractor a written Notice approving or rejecting the Contractor’s

request; and

(iii) if Finance approves the request, the parties must promptly execute

the Change Order.



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(d) Any variation to this Head Agreement takes effect from the date on which

the parties execute a Change Order and binds both Finance and any

Customers.

(e) If this Head Agreement is varied, that variation (including any changes to

the Charges) will apply to all future Orders and to Orders in effect (but

only to undelivered Deliverables) at the time of the amendment, unless

agreed otherwise in writing between the parties.

44.2 Variations to an Entity Deed

(a) Only the relevant Customer Representative can agree to the making of

variations to an Entity Deed.

(b) If the Customer wants to vary the Entity Deed:

(i) the Customer Representative will request a variation by providing

to the Contractor a draft Change Order setting out the proposed

variations;

(ii) within 10 Business Days after receiving the Customer’s draft

Change Order, or within another period agreed by the parties, the

Contractor must respond in writing to the Customer specifying

what impact those variations will have on:

(A) the Prices (as that term is defined in the relevant Entity

Deed) or the Charges;


(C) the Contractor’s ability to perform its obligations under the

Entity Deed or any relevant Order; and

(D) the Entity Deed and any relevant Order;

(iii) within 10 Business Days after receiving the Contractor’s response,

or within another period agreed by the parties, the Customer must

give the Contractor a written Notice approving or rejecting the

response; and

(iv) if the Customer approves the response, the parties must promptly


(c) If the Contractor wants to vary an Entity Deed:

(i) the Contractor will request a variation by providing a draft Change

Order to the Customer setting out the proposed variations and

specifying what impact those variations will have on:

(A) the Prices (as that term is defined in the relevant Entity

Deed) or Charges;


(C) the Contractor’s ability to perform its obligations under the

Entity Deed or any relevant Order; and



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(D) the Entity Deed and any relevant Order;

(ii) within 10 Business Days after receiving the request or within

another period agreed by the parties, the Customer must give the

Contractor a written Notice approving or rejecting the Contractor’s

request; and

(iii) if the Customer approves the request, the parties must promptly


(d) Any variation to an Entity Deed takes effect from the date on which the

parties execute a Change Order and binds both Finance and any

Customers.

(e) If an Entity Deed is varied, that variation (including any changes to the

Charges) will apply to all relevant Orders made in the future, and to all

relevant Orders in effect (but only to undelivered Deliverables) at the

time of the amendment, unless agreed otherwise in writing between the

parties.

44.3 Variations to an Order

(a) Any variations to Orders must be submitted in writing by the Customer to

the Contractor.

(b) The Contractor must, within 3 hours of receiving Notice from the

Customer in accordance with clause 44.3(a) confirm receipt of the Order

variation.

(c) The Contractor must fulfil any Order variation transmitted in accordance

with clause 44.3(a) if it is within the scope of this Head Agreement and

the applicable Entity Deed.

45 Dispute Resolution

45.1 No arbitration or court proceedings

If a dispute arises in relation to the interpretation, conduct, enforcement or any

other aspect of this Head Agreement, any Entity Deed or an Order (Dispute), a

party must comply with this clause 45 before starting arbitration or court

proceedings (except proceedings for urgent interlocutory relief). After a party

has sought or obtained any urgent interlocutory relief, that party must follow

this clause 45.

45.2 Notification

(a) A party claiming a Dispute has arisen must give the other parties to the

Dispute a Notice setting out details of the Dispute.

(b) Without limiting clause 45.2(a), any Dispute between the Contractor and

a Customer must be promptly Notified by the Contractor to Finance.

45.3 Parties to resolve Dispute

During the 10 Business Days after a Notice is given under clause 45.2 (or

longer period if the parties to the Dispute agree in writing), each party to the



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Dispute must use its reasonable efforts through a meeting of CEOs or

equivalent (or their nominees) to resolve the Dispute. If the parties cannot

resolve the Dispute within that period, they must refer the Dispute to a mediator

at the request of one of the parties to the Dispute.

45.4 Appointment of mediator

If the parties to the Dispute cannot agree on a mediator within five Business

Days after a request under clause 45.3, the parties must request the

chairperson of Resolution Institute or the chairperson’s nominee to appoint a

mediator.

45.5 Role of mediator and obligations of parties

The role of the mediator will be to assist in negotiating a resolution of the

Dispute. The mediator may not make a decision which is binding on a party to

the Dispute unless the party agrees in writing. Unless agreed by the mediator

and parties, the mediation must be held within 15 Business Days of the request

for mediation in clause 45.3. The parties must attend the mediation and act in

good faith to genuinely attempt to resolve the Dispute.

45.6 Confidentiality

Any information or Documents disclosed by a party under this clause 45:

(a) must be kept confidential and are subject to clause 17; and

(b) may only be used to attempt to resolve the Dispute by means of the

mediation.

45.7 Costs

Each party to a Dispute must pay its own costs of complying with this

clause 45. The parties to the Dispute must equally pay the costs of any

mediator.

45.8 Termination of process

A party to a Dispute may terminate the Dispute resolution process by giving

Notice to each other party after it has complied with clauses 45.1 to 45.5.

Clauses 45.6 and 45.7 survive termination of the Dispute resolution process.

45.9 Breach of this clause

If a party to a Dispute breaches clauses 45.1 to 45.5, the other party does not

have to comply with those clauses in relation to the Dispute.

46 Administration

46.1 Representatives

(a) The Contractor Representative is responsible for administration of this

Head Agreement, an Entity Deed and any Orders on behalf of the

Contractor.



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(b) The Customer Representative is responsible for administration of the

Entity Deed and any Order to which the Customer is a party on behalf of

the Customer.

(c) The Finance Representative is responsible for administration of this

Head Agreement on behalf of Finance. The Finance Representative is

the only person authorised to agree to changes to this Head Agreement.

The Finance Representative will be nominated by Notice to the

Contractor from time to time and at the Commencement Date is the

position specified in this Head Agreement Details (Annexure A).

(d) The Contractor Representative:

(i) in relation this Head Agreement, is the person specified in this

Head Agreement Details (Annexure A); and

(ii) in relation to an Entity Deed, is the person identified as the

Contractor Representative in the Entity Deed.

(e) The Customer Representative will be identified in the relevant Entity

Deed (Annexure H) or relevant Order.

(f) The Contractor Representative, the Customer Representative and the

Finance Representative may each delegate their functions, or authorise

that their functions be carried out on their behalf. The Contractor,

Customer or Finance, as appropriate, will Notify the other party of any

such delegation or authorisation.

(g) Any oral directions given by a party that, in the other party’s opinion, will

have an impact on the scope, costs, timing or resources relevant to an

Order, must be confirmed by Notice from the party’s Representative

within a reasonable period.

(h) The Contractor Senior Executive, is a primary contact for Finance under

this Head Agreement, and has the authority to deal with Finance in

relation to important or significant operational matters (as determined by

Finance including, for example, escalation of issues and any other

matters requested by the Finance Representative in relation to this Head

Agreement.

46.2 E-commerce

To the extent specified in clause 9.2, this Head Agreement Details or an Entity

Deed, the parties will cooperate in performing their respective obligations under

this Head Agreement, an Entity Deed or any Order in an electronic

environment. The foregoing does not, however, relieve either party of its

specified obligations as set out in this Head Agreement, an Entity Deed or any

Order.

47 Notices and other communications

47.1 Service of Notices

(a) A Notice must be in writing and given by:



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(i) in the case of a Notice from the Contractor, the Contractor

Representative;

(ii) in the case of a Notice from the Customer, the Customer

Representative; and

(iii) in the case of a Notice from Finance, the Finance Representative.

(b) A Notice or other communication is properly given or served by a party if

that party:

(i) delivers it by hand;

(ii) posts it; or

(iii) transmits it by electronic mail,

to the recipient’s address for Notices specified in clause 47.2 (as

updated in accordance with clause 47.3) and marked for the attention of

the person who at that time is the Representative, in accordance with

this Head Agreement or an Entity Deed, of the party intended to receive

it.

47.2 Address for Notices

(a) Finance’s address for Notices is:

Method Address

Hand Department of Finance

Director – Stationery and Office Machines

Team

Procurement Management Branch

Technology and Procurement Division

Commercial and Government Services

Group

1 Canberra Avenue

FORREST ACT 2603

Australia

Post Department of Finance

Director – Stationery and Office Machines

Team

Procurement Management Branch

Technology and Procurement Division

Commercial and Government Services

Group

3rd Floor North

1 Canberra Avenue

FORREST ACT 2603

Australia

Electronic mail [email protected]

mailto:[email protected]



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(b) The Contractor’s address for Notices is as set out in this Head

Agreement Details provided that any Notice by the Contractor to a

Customer must also be copied to Finance at the address for Notices set

out in clause 47.2(a).

(c) The Customer’s address for Notices will be as set out in the relevant

Entity Deed.

47.3 Change of Address

Each party must Notify the other of any change in its address for Notices, or in

the identity of its Representative, including through delegation or authorisation

under clause 46.1(f).

47.4 Deemed Receipt

A Notice or other communication is deemed to be received:

(a) if delivered by hand, on the date upon which it is delivered;

(b) if correctly addressed to the address specified in clause 47.2 or this

Head Agreement Details or an Entity Deed and sent by post from and to

an address within Australia, after 3 Business Days;

(c) if correctly addressed to the address specified in clause 47.2 or this

Head Agreement Annexure A or an Entity Deed and sent by post from or

to an address outside Australia, after 10 Business Days; or

(d) if sent by electronic mail, only in the event that the other party

acknowledges receipt by means other than an automated response.

48 Relationship

48.1 General obligations of the parties

(a) The parties must, at all times:

(i) diligently perform their respective obligations under this Head

Agreement, an Entity Deed and any Order; and

(ii) work together in a collaborative manner.

(b) Without limiting clause 48.1(a)(ii), the Contractor Representative must:

(i) work with the Finance Representative to facilitate the ongoing

management of this Head Agreement; and

(ii) with each applicable Customer Representative to facilitate the

ongoing management of each Entity Deed.

48.2 Limitation of relationship

(a) Neither this Head Agreement, an Entity Deed nor any Order creates a

relationship of employment, entity or partnership between the parties or

their Personnel (except to the extent that Finance is an agent of the

Entities for the purposes of this Head Agreement).



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(b) The parties must not represent themselves, and must ensure that their

Personnel do not represent themselves, as being an officer, employee,

partner or agent of the other party, or as otherwise able to bind or

represent the other party.

(c) Without limiting clause 48.2(b), the Contractor must ensure that its

Personnel do not represent themselves as being an officer, employee,

partner or agent of Finance or any Customer or as otherwise able to bind

or represent Finance or any Customer.

(d) The Contractor must clearly identify itself as a contractor to Finance and

the Customer when communicating through telephone, email or any

other method in the course of performing this Head Agreement, an Entity

Deed and an Order.

49 General

49.1 Language and Measurement

All information delivered as part of the provision of Deliverables under an

Order, or any information required to be delivered under this Head Agreement

or an Entity Deed, will be written in English. Measurements of physical quantity

will be in Australian legal units as prescribed under the National Measurement

Act 1960 (Cth) or if Deliverables are imported, units of measurement as agreed

by the Customer Representative.

49.2 Approvals and consents

Except where this Head Agreement or an Entity Deed expressly states

otherwise, a party may, in its discretion, give conditionally or unconditionally or

withhold any approval or consent under this Head Agreement or an Entity

Deed.

49.3 Costs of contracting

Each party must pay its own costs of negotiating, preparing and executing this

Head Agreement, an Entity Deed and any Orders.

49.4 Further action

Each party must do, at its own expense, everything reasonably necessary

(including executing documents) to give full effect to this Head Agreement, an

Entity Deed, any Orders and any transaction contemplated by those

documents.

49.5 Assignment and novation

(a) A party may only assign its rights or novate its rights and obligations

under this Head Agreement, an Entity Deed or an Order with the prior

written consent (by Notice) of the other party, and this consent must not

be unreasonably withheld.

(b) The Contractor must not assign, in whole or in part, its benefits under an

Entity Deed or an Order without the prior written consent of the

Customer, and this consent must not be unreasonably withheld.



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(c) The Contractor must not consult with any other person or body for the

purposes of entering into an arrangement which will require assignment

or novation of this Head Agreement without the prior written consent of

Finance.

(d) The Contractor must not consult with any other person or body for the

purposes of entering into an arrangement which will require assignment

or novation of an Entity Deed or an Order without the prior written

consent of the Customer.

49.6 Waiver

(a) Waiver of any provision of, or right under, this Head Agreement, an

Entity Deed or an Order:

(i) must be by Notice from the party entitled to the benefit of that

provision or right; and

(ii) is effective only to the extent set out in such Notice.

(b) The fact that a party fails to do, or delays in doing, something the party is

entitled to do under this Head Agreement, an Entity Deed or an Order,

does not amount to a waiver of any obligation of, or breach of obligation

by, the other party.

49.7 Severability

A term or part of a term of this Head Agreement, an Entity Deed or an Order

that is illegal or unenforceable may be severed from this Head Agreement, or

the relevant Entity Deed or Order, and the remaining terms or parts of the

terms of that document will continue in force.

49.8 Entire agreement

This Head Agreement, the Entity Deed and any Order constitute the entire

agreement between the parties in connection with their respective subject

matter and supersede all previous agreements or understandings between the

parties in connection with their subject matter.

49.9 Rights are Cumulative

The rights, powers and remedies provided in this Head Agreement, an Entity

Deed and any Order are cumulative and are not exclusive of the rights, powers

or remedies provided by Law independently of this Head Agreement or the

relevant Entity Deed or Order.

49.10 No merger

The rights and obligations of the parties under this Head Agreement, any Entity

Deed or any Order do not merge on completion of any transaction

contemplated by this Head Agreement or the relevant Entity Deed or Order.

49.11 Recovery of moneys due to the Customer

Any money due or owing to the Customer under the Entity Deed or any Order

may be recovered as a debt due to the Customer and set off against any

payment due under the relevant Entity Deed or any relevant Order.



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49.12 Survival

The following clauses survive the termination and expiry of this Head

Agreement, an Entity Deed and any Order:

(a) clause 16 (Intellectual Property Rights);

(b) clause 17 (Confidentiality);

(c) clause 18 (Privacy);

(d) clause 20 (Warranties);

(e) clause 22 (Indemnity);

(f) clause 23 (Insurance);

(g) clause 28 (Books and records);

(h) clause 30 (Audit and access);

(i) clause 31 (Security);

(j) the termination provisions in clause 43 so far as they relate to rights and

obligations arising on termination;

(k) any clauses that are expressed to or which by their nature survive

termination or expiry including warranties and Intellectual Property

Rights; and

(l) all clauses required to give effect to this clause 49.12.

49.13 Counterparts

This Head Agreement, an Entity Deed and any Order may be executed in

counterparts. All executed counterparts constitute one document.

49.14 Governing Law and jurisdiction

(a) This Head Agreement, an Entity Deed and all Orders are governed by

the Law of the Australian Capital Territory.

(b) Each party irrevocably and unconditionally submits to the non-exclusive

jurisdiction of the courts of the Australian Capital Territory.



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Executed as a deed.

Executed by Commonwealth of Australia as represented by the Department of Finance by its duly appointed officer in the presence of:

) ) )

.............................................................. Witness ............................................................... Name of Witness (print)

............................................................. Officer ............................................................... Name of Officer (print)

Executed by #[Insert company name]#

ACN #[Insert ACN]# in accordance with

section 127 of the Corporations Act 2001

(Cth) by:

Signature of Director

Signature of Director/Company

Secretary

Full name (print)

Full name (print)



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Annexure A

Head Agreement Details

Item

Number

Description Clause

Reference

Position Postal Address Telephone Email

1. Contractor’s details 1.1

2. Key Personnel 1.1 and 25.3

3. Finance Representative 46.1(c)

4. Contractor Representative 46.1(d)

5. Contractor’s address for

Notices 47.2(b)

6. Contractor Senior

Executive 46.1(h)



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Annexure B

Statement of Requirement



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Annexure C

Contractor Confidential Information

The following information is confidential to the Contractor:

Item Description of Information Reason for confidentiality (having regard to

Finance / ANAO Guidelines)

1



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Annexure D

Performance Guarantee

This Deed of Guarantee made on the day

of 201[ ].

Between

The Commonwealth of Australia acting through and represented by the

Department of Finance (ABN 61 970 632 495) (Finance)

[insert Guaranteeing Company's Name] (ABN[insert ABN]) (the Guarantor)

Background

A Finance has entered into the Head Agreement with the Contractor.

B Contractor A ACN xxxxxxxxx (Contractor) has agreed to supply the Stationery and Office Supplies and the Services (the Goods and Services) for Finance on the terms and conditions contained in the Head Agreement executed by the Contractor and Finance on [insert date] and to Entities on the terms of an Entity Deed executed between such Entity (the Customer) and the Contractor and any Order agreed under such Entity Deed.

C The Guarantor agrees to provide to Finance the guarantees and indemnities set out below in respect of the supply of the Goods and Services by the Contractor.

The Guarantor guarantees to Finance the supply of the Goods and Services by the

Contractor on the following terms and conditions:

1 If the Contractor (unless relieved from the performance of the Head Agreement

by Finance, or an Entity Deed or an Order by the relevant Customer, or by

statute, or by a decision of a tribunal of competent jurisdiction) fails to execute

and perform its obligations under the Head Agreement, or relevant Entity Deed

or Order, the Guarantor will, if required to do so by Finance, complete or cause

to be completed those obligations in accordance with the conditions of the

Head Agreement, or relevant Entity Deed or Order. If the Contractor commits

any breach of its obligations, and such breach is not remedied by the

Guarantor pursuant to the foregoing sentence, and the Head Agreement, or

relevant Entity Deed or Order is then terminated for default, the Guarantor



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must indemnify Finance against costs, losses, liabilities and expenses incurred

by Finance and the Customer by reason of such default.

2 The Guarantor will not be discharged or released or excused from this Deed of

Guarantee by an arrangement made between the Contractor and Finance with

or without the consent of the Guarantor, or by any alteration, amendment or

variation in the obligations assumed by the Contractor, or by reason of any

other person becoming liable for any of the obligations or if Finance obtains

any judgement under this Deed of Guarantee or the Head Agreement, or

relevant Entity Deed or Order, or by any forbearance, waiver, delay,

concession or failure to enforce the Contractor’s obligations or any of them or if

the business or any part of the business of the Contractor is sold or disposed

of. This guarantee by the Guarantor to assume the obligations of the

Contractor will continue in force and effect until completion of all the

Contractor's obligations under the Head Agreement, or relevant Entity Deed or

Order or until the completion of the undertakings of this Deed of Guarantee by

the Guarantor.

3 The obligations of the Guarantor under this Deed of Guarantee will not exceed

the obligations of the Contractor under the Head Agreement, or relevant Entity

Deed or Order.

4 Finance’s rights under this Deed of Guarantee are not affected in any way by it

obtaining or enforcing any other security.

5 The Guarantor will not subrogate or assign any rights that Finance has against

the Contractor without written Notice to, and approval from, Finance.

6 The Guarantor will not set off, counter claim, or otherwise pursue any

competing interests against the Contractor until all money and liabilities arising

from this Deed of Guarantee and incurred by the Contractor have been paid

and discharged.

7 This Deed of Guarantee is subject to and must be construed in accordance

with the laws in force in the Australian Capital Territory and the parties agree

that the courts of that Territory have jurisdiction to entertain any action in

respect of, or arising out of, this Deed of Guarantee and submit themselves to

the jurisdiction of those courts.

8 Terms used in this Deed of Guarantee which are not defined in it have the

meaning given in the Head Agreement, or any relevant Entity Deed or Order.

9 The Guarantor warrants that it has the power and capacity to enter into this

Deed of Guarantee.

[INSERT EXECUTION CLAUSE]



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Annexure E

Financial Undertaking

This Deed (Undertaking) is made the day

of 201[ ].

By: [ ] of [Insert name and address of Guarantor] ABN [insert

ABN] (Guarantor)

To: Commonwealth of Australia as represented by the Department of Finance

of [insert address] ABN 61 970 638 495 (Finance)

At the request of Contractor A ACN 000 728 398 (the Contractor) and in consideration

of Finance accepting this Undertaking, the Guarantor unconditionally and irrevocably, as

a primary obligation, undertakes and covenants to pay on demand, and without

reference to the Contractor, any sum or sums which may from time to time be

demanded in writing by Finance up to a maximum aggregate sum of $[Amount

(Figures incl. Cents)] ([Amount (Words)] only in Australian Currency (the Sum).

The Guarantor's liability under this Undertaking is a continuing liability and continues

until the first to occur of:

(a) the Guarantor's receipt of written notification from Finance that the Undertaking

is no longer required by Finance;

(b) return of the original Undertaking to the Guarantor by Finance; or

(c) payment has been made to Finance by the Guarantor of the whole of the Sum.

Demands must be in writing; purport to be signed by or for and on behalf of Finance and

may be made for the whole or any part or parts of the Sum (and if only for a part, then

further demands may be made for the balance).

The Guarantor agrees that a payment, or payments, due to Finance will be made even if

the Contractor has instructed the Guarantor not to pay. As specified by Finance in any

demand, payment will be made by bank cheque payable to Finance or by electronic

funds transfer to a bank account nominated by Finance.

The obligations of the Guarantor under this Undertaking are not affected by anything

which, but for this provision, might operate to exonerate it from that liability in whole or in

part and this Undertaking may be enforced against the Guarantor without Finance being

required to exhaust any remedy it may have against the Contractor. The Guarantor

agrees that it is not to be discharged or released from this Undertaking by any

arrangement made between the Contractor and Finance

The liability of the Guarantor under this Undertaking will not be discharged or impaired

by reason of any change or changes (with or without the knowledge or consent of the



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Guarantor) in any of the stipulations or provisions in the Head Agreement, or in any

relevant Entity Deed or Order or acts or things to be executed, performed or done under

the Head Agreement, or any relevant Entity Deed or Order or by reason of any breach

or breaches of the Head Agreement, or any relevant Entity Deed or Order by the

Contractor, Finance or any relevant Customer.

The Guarantor may at any time without being required to do so pay to Finance the Sum

less any amount or amounts it may previously have paid under this Undertaking or such

lesser sum as may be required and specified by Finance. If the Guarantor makes that

payment then its liability under this Undertaking ceases.

The Guarantor must make payments to Finance under this Undertaking no later than

11:00am Canberra time on the due date as notified by Finance.

The Guarantor agrees to pay interest to Finance on any amount payable by it to Finance

under this Undertaking from when it becomes due for payment, during the period that it

remains unpaid, on demand, or at times determined by Finance calculated on daily

balances at the rate of 4% over the Commonwealth Bank of Australia's indicator interest

rate, and is capitalised (if not paid) every seven days.

If a law requires the Guarantor to withhold or deduct taxes from a payment so that

Finance would not actually receive for its own benefit on the due date the full amount

provided for under this Undertaking, then:

(a) the amount payable is increased so that, after that deduction and deductions

applicable to additional amounts payable, is entitled to receive the amount it

would have received if no deduction had been required;

(b) the Guarantor must make the deduction; and

(c) the Guarantor must pay the full amount deducted to the relevant authority in

accordance with applicable law.

The Guarantor indemnifies Finance against, and must pay Finance on demand, the

amount of all losses, liabilities, costs, expenses, stamp duty and goods and service

taxes payable in connection with this Undertaking and in connection with preserving its

rights under this Undertaking.

The Guarantor acknowledges that it has received valuable consideration for entering

into this Undertaking.

This Undertaking is governed by, and is to be construed in accordance with, the laws of

the Australian Capital Territory and the parties agree that the courts of that Territory will

have jurisdiction to entertain any action in respect of, or arising out of, this Undertaking

and hereby submit themselves to the jurisdiction of those courts. Capitalised terms that

are not otherwise defined in this Undertaking have the meaning set out in the Head

Agreement between the Contractor and Finance dated [insert date].




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Annexure F

Australian Industry Participation Plan



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Annexure G

Deed of Confidentiality and Privacy

This Deed of Confidentiality and Privacy made on the day of 20[ ].

BETWEEN

The Commonwealth of Australia acting through and represented by [Delete

preceding if not a Commonwealth entity] [INSERT ENTITY] (ABN [insert

ABN]) (the Customer)

[insert NAME and address of the employee, agent or Subcontractor of the Contractor, as the case may be] (the Recipient).

A Contractor A ACN XXXXXXXXXX (Contractor) and the Commonwealth [Replace by Entity name if not a Commonwealth entity] are parties to an Order executed by the Contractor and the Customer on [insert date] (Order).

B The Recipient may be used by the Contractor in connection with the provision of Deliverables under the Order. In the course of providing Deliverables under the Order, the Recipient may become aware of information pertaining to, or in connection with, the Order which is Confidential Information or Personal Information.

1 Definitions Unless the context otherwise requires, terms used in this Deed have the

meaning given to them in the Head Agreement.

Approved Person means a person who is:

(a) Customer Personnel; or

(b) any other person nominated by the Customer.

Confidential Information is information that:

(a) is by its nature confidential;

(b) is designated by the Customer as confidential;

(c) the Contractor knows or ought to know is confidential including:

(i) information comprised in or relating to any of the Customer's

Intellectual Property;



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(ii) information relating to the policies, strategies, practices and

procedures of the Customer and any information in the

Contractor's possession relating to the Customer; or

(iii) Security Classified Information; or

(d) is Customer Material and data,

but does not include information which:

(e) is or becomes public knowledge other than by a breach by the

Contractor of any confidentiality obligation; or

(f) has been independently developed or acquired by the Contractor as

established by written evidence.

Deliverables means the Deliverables to be provided under the Order.

Head Agreement means the agreement between the Commonwealth of

Australia as represented by the Department of Finance and the Contractor for

the provision to Entities of Stationery and Office Supplies dated [].

Personal Information means information or an opinion:

(a) about a natural person whose identity is apparent, or can be reasonably

ascertained, from the information or opinion;

(b) whether true or not, and whether recorded in material form or not; and

(c) of which the Recipient becomes aware because of their involvement in

the provision of the Deliverables.

2 Authorised representative If the Recipient is not a natural person, the Recipient warrants that the

signatory to this Deed is an authorised representative of the Recipient and is

authorised to bind the Recipient.

3 Protection of Personal Information and Confidential Information (a) The Recipient agrees to keep secret and confidential all Personal

Information and Confidential Information and will not directly or indirectly

disclose to any person, other than an Approved Person, any Personal

Information or Confidential Information. The Recipient agrees not to

make any use of information contained in the Personal Information or

Confidential Information except as it relates to provision of the

Deliverables.

(b) The Recipient understands and acknowledges that any unauthorised use

or disclosure of Personal Information or Confidential Information may

make the Recipient liable for prosecution under the laws of the

Commonwealth.



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(c) The Recipient agrees to immediately notify the Customer if it becomes

aware that any of the Personal Information or the Confidential

Information:

(i) has been used, copied or disclosed in breach of this Deed; or

(ii) is required to be disclosed by law.

(d) The Recipient acknowledges that improper use or disclosure of any

Personal Information or Confidential Information provided to or accessed

by the Recipient pursuant to or in connection with the provision of the

Deliverables may be detrimental to the Customer in the performance of

its functions and may cause harm to any third parties with an interest in

the Personal Information or Confidential Information.

4 Indemnity The Recipient agrees to indemnify and hold harmless the Customer in respect

of all costs, (including legal costs and expenses on a solicitor/own client basis)

liability, losses and claims reasonably incurred by the Customer as a result of a

breach of this Deed.

5 Retrospectivity This Deed has retrospective effect and covers all Confidential Information or

Personal Information disclosed to the Recipient by or on behalf of the

Customer or the Contractor in connection with the Deliverables, whether before

or after the date of this Deed.




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Annexure H

Entity Deed Form - Template

To: Contractor A ACN xxxxxx of xxxxxxxxxxxxxxxxxxxx From: [insert Customer] Commencement Date: [insert date] The Customer issues this Entity Deed in accordance with clause 8.1 of the Head Agreement. The Contractor acknowledges that, in accordance with the Head Agreement:

1. the terms of the Head Agreement are incorporated into this Entity Deed and cannot

be amended without the prior written consent of Finance;

2. the terms of the Head Agreement as incorporated in this Entity Deed are amended

from time to time as and when the Head Agreement is amended; and

3. if there is any inconsistency between this Entity Deed and the Head Agreement, the

terms of the Head Agreement prevail.

The table below sets out the Customer’s specific requirements for any Order it places

with the Contractor during the Term specified below.

Item

Number

Description Clause

reference

Details

1. Term of the Entity

Deed

clause 1.1

and 7.3

[insert duration of the Entity

Deed. Note that the Term of

the Head Agreement is 3

years so consider limiting the

ability of this Entity Deed to

extend too far beyond the

end of the Term of the Head

Agreement.

2. Customer

Representative

clause

46.1(e)

[Insert the Customer

Representative]

3. Contractor

Representative

clause

46.1(d)(ii)

[Insert the Contractor

Representative]

4. Customer’s address

for Notices

clause 47.2(c) [Insert the Customer’s

address for Notices]



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Item

Number

Description Clause

reference

Details

5. Key Personnel clause 1.1

and clause

25.3

[Insert Key Personnel of the

Contractor that the Customer

requires for this Entity Deed

and Orders placed by the

Entity]

6. Manner of payment clause

11.2(a)

[Insert terms and manner of

payment specific to Entity

(eg: EFT)]

7. Electronic funds

transfer

clause

11.2(d)

[Insert details for EFT]

8. Invoicing clause 11.3 [Insert invoicing

requirements]

9. Delivery Point clause 1.1

and 40.1.

[Insert possible locations

where Deliverables may

need to be delivered]

10. Delivery requirements Whole of

Australian

Government

Products and

Services

Catalogue

[Insert delivery requirements,

eg: packaging]

11. Reporting

Requirements

clause 27.2 [Identify any reports from the

Whole of Australian

Government Products and

Services Catalogue that are

not required or specify if any

additional Entity-specific

reporting requirements are

required]

12. Management

meetings

Clause 26

[insert details of any

management meetings, e.g.:

frequency, venue, attendees

etc]

13. On-line ordering

system – required

login accounts

clause 9.2 [Insert required number of

on-line ordering system

accounts and insert details of

account holders]

14. System Interface

Requirements

Whole of

Australian

Government

[Insert system interface

requirements]



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Item

Number

Description Clause

reference

Details

Products and

Services

Catalogue

15. Records clause 28.1(c) [Detail any Entity-specific

record keeping requirements]

16. Site Access clause 29(a) [Detail any site access that

the Customer will provide]

17. Security Requirements clause

31.1(a)

[Detail any Entity-specific

security requirements]

18. Security Clearances clause 31.2 [Detail any Entity specific

security clearance

requirements]

19. Standards and codes clause

35(a)(i)

[Detail any standards and

codes that the Contractor

must comply with in addition

to the Head Agreement (or

delete)]

20. Industry

methodologies

clause

35(b)(i)

[Detail any industry

methodologies that the

Contractor must comply with

in addition to the Head

Agreement (or delete)]

21. Insurance clause

23.1(b)

[insert any additional Entity

insurance requirements or if

none, delete]

22. Customer Supplied

Items

clause 1.1

and 40.5

[Insert any Customer

Supplied Items, or state that

there are no Customer

Supplied Items]

23. Tools and Processes clause

40.3(h)

[Detail any tools and

processes that the

Contractor must provide]

24. Customer assistance clause

40.6(a)(ii)

[Detail any assistance that

the Customer must provide]

25. E-Commerce clause 46.2 [Detail any e-commerce

assistance requirements]

26. Transition-in clause 38 [insert whether Transition-In

activities are required (eg:

training requirements) and



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Item

Number

Description Clause

reference

Details

detail these requirements or

reference document setting

out Transition-In

requirements and any

required Milestones]

27. Transition Out Clause 43.5

[insert details of Transition-

Out Plan (if required)]

28. Incorporated

documents

clause

2(c)(vii)

[Refer to any Entity specific

documents incorporated into

this document]




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Attachment 1 – Customer Catalogue

[Customer Catalogue to be included here]



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Annexure I

Change Order

This Change Order (including its attachments, if any) serves to vary the [Entity

Deed/Head Agreement] executed by the Contractor and the [Customer/Finance] on

[date] (the [Entity Deed / Head Agreement]), in accordance with the terms set out

below. Unless specifically stated in this Change Order, all terms and conditions of the

[Entity Deed/ Head Agreement] continue unaffected.

1 Change Order number

2 Raised by

3 Details of change (use

attachments if

required)

4 Implementation date of

Change Order

5 Effect on Deliverables

6 Plan for implementing

the change

7 Effect on Charges

8 Effect on Service Level

requirements

9 Effect on

Documentation

10 Other relevant matters

(eg: transitional

impacts, effect on

Project Plan,

Implementation Plan,

Milestones, Acceptance

etc)


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