AEMI Panel - Deed of Standing Offer 2013

7/30/2019 AEMI Panel - Deed of Standing Offer 2013

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DEED OF STANDING OFFER

DEED OF STANDING OFFER IN RELATION TO ESTABLISHMENT OF

AN EDUCATION, RESEARCH AND TRAINING PANEL

THE COMMONWEALTH OF AUSTRALIA, REPRESENTED BY

THE ATTORNEY-GENERALS DEPARTMENT

ABN 92 661 124 436

AND


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Attorney-Generals Department

^contract title^

^date^

CONTENTS

1. Interpretation 21.1. Definitions 21.2. Interpretation 31.3. Guidance on Construction of this Deed 42. Formation Of Contracts 52.1. Offer to provide Services 52.2. Work Orders 52.3. The Department not bound to order from Service Provider 62.4. Notice of Inclusion of an Agency 63. Fees 73.1. Calculation of fees 73.2. Invoices and payment 73.3. Interest 74. Termination 94.1. Termination for convenience 94.2. Termination for default 95. General Provisions 105.1. Waiver 105.2. Assignment and novation 105.3. Notices 105.4. Compliance with Fair Work Principles 115.5. Applicable law 12

Schedule 1. Items 14Schedule 2. Contract Terms and Conditions 15Schedule 3. Services 37Schedule 4. Fees and Specified Personnel 38Schedule 5. Work Order 39Schedule 6. Notice of Inclusion 41


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DEED OF STANDING OFFER

DEED OF STANDING OFFER IN RELATION TO ESTABLISHMENT OF

AN EDUCATION, RESEARCH AND TRAINING PANEL

Date and Governing Law

This Deed is dated

This Deed is to be construed in accordance with the laws of the Australian

Capital Territory.

Parties

This Deed is made between and binds the following Parties:

THE COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY

THE ATTORNEY-GENERALS DEPARTMENT, ABN 92 661 124 436

(the Department), Robert Garran Offices, National Circuit, Barton ACT 2600

and

(Service Provider)

Purpose

This Deed is made in the following context:

A. The Department may require the provision of Services by the Service Provider.

B. The Department has established a panel of suppliers to provide services of thekind set out in this Deed to the Department (Panel). The Service Provider is one

of the suppliers on the Panel.

C. The Service Provider has agreed that when it receives a Work Order from the

Department in accordance with this Deed, the Service Provider must, inaccordance with this Deed, provide the Services specified in the Work Order.

D. The parties have agreed that Additional Agencies may order Services from theSupplier by establishing a standing off arrangement using the procedure set outin this deed.

Operative Provisions

The Parties to this Deed agree as follows:


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1. Interpretation

1.1. Definitions

1.1.1. In this Deed, unless the context indicates otherwise:

Additional Agency means any body or agency of the Commonwealth(including any bodies corporate created under thelaws of the Commonwealth),

Business Day means a weekday other than a public holiday in theAustralian Capital Territory

Commencement

Date

means the date specified as such in Item 1

Contract means a contract for particular Ordered Services on

the terms set out in Schedule 2 and formed betweenthe Department and the Service Provider by theDepartment delivering a Work Order to the ServiceProvider

Control of a person, partnership, trust, joint venture,corporation or other entity (Entity), means:

a. the ability to cast or control the casting of morethan 50% of the maximum number of votes thatmight be cast at any general meeting (or

equivalent) of the Entity, orb. the holding of more than 50% of the issued

ordinary share capital, the equity, or other

ownership interest, in the Entity

Deed means this Deed, the schedules to this Deed and anyattachments

Departments

Representative

means the person specified by name or position inItem 2 [Departments Representative and Address for

Notices] of Schedule 1 or any substitute notified tothe Service Provider in accordance with clause 5.3.4

End Date means the later of the Initial End Date and the finalday of any extension of the Term of this Deed under

clause 2.1.4

Extension Date means the latest date to which this Deed may beextended by the Department as specified in Item 1[Timeframe] of Schedule 1

Initial End Date means the date specified in Item 1 [Timeframe] of

Schedule 1

Notice of Inclusion means a notice substantially in the form of Schedule

6


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Ordered Services means the services specified in a Work Order andincludes all:

a. incidental services

b. functions required for the proper provision ofthese services, and

c. Contract Material specified in the Work Order

Panel means the panel of suppliers mentioned in Recital B

Party means, as applicable, the Department or the ServiceProvider

Representative means the Departments Representative or theService Providers Representative

Service ProvidersRepresentative

means the person specified by name or position inItem 3 [Service Providers Representative and

Address for Notices] of Schedule 1 or any substitutenotified to the Department in accordance withclause 5.3.4

Services means the services specified in Schedule 3

Specified Personnel means the personnel specified in Schedule 4

Term means the term of this Deed, being the period fromthe Commencement Date to the End Date, and

Work Order means an order, substantially in the form ofSchedule 5, placed by the Department accepting thestanding offer of the Service Provider to provide

some or all of the Services.

1.2. Interpretation

1.2.1. Capitalised terms that are contained in this Deed but are not defined in clause 1.1have the meanings given to them in Schedule 2.

1.2.2. In this Deed, unless the contrary intention appears:

a. words importing a gender include any other gender

b. words in the singular include the plural and words in the plural include the

singular

c. clause headings are inserted for convenient reference only and have noeffect in limiting or extending the language of provisions to which they refer

d. words importing a person include a partnership and a body whethercorporate or otherwise

e. all references to dollars are to Australian dollars


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f. a reference to any legislation or legislative provision (whether primary orsubordinate) includes any statutory modification, substitution or re-

enactment of such legislation or legislative provision

g. if any word or phrase is given a defined meaning, any other part of speechor other grammatical form in respect of that word or phrase has a

corresponding meaning

h. reference to an Item is to an Item in a schedule to this Deed

i. the schedules and any attachments form part of this Deed

j. if any conflict arises between the terms and conditions contained in theclauses of this Deed and any other part of this Deed (and attachments if

any), the following order of priority will apply:

i. the terms specified in the Work Order

ii. the terms and conditions specified in this Deed

iii. the schedules, then

iv. any attachments

k. where this Deed provides that the Department may do something, it maydo so in its absolute discretion, at any time and without having to givereasons

l. reference to a schedule (or an attachment) is a reference to a schedule (or an

attachment) to this Deed, including as amended or replaced from time totime by agreement in writing between the Parties, and

m. a reference to writing is a reference to any representation of words, figuresor symbols, whether or not in a hard copy paper form.

1.3. Guidance on Construction of this Deed

1.3.1. This Deed records the entire agreement between the Parties in relation to its

subject matter.

1.3.2. This Deed may only be varied by a formal deed of variation executed by both

Parties.

1.3.3. Any reading down or severance of a particular provision does not affect theother provisions of this Deed.

1.3.4. A provision of this Deed or any Contract will not be construed to thedisadvantage of a Party solely on the basis that it proposed that provision.


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2. Formation Of Contracts

2.1. Offer to provide Services

2.1.1. The Service Provider irrevocably offers to provide the Services as and whendirected by the Department by the issue to the Service Provider of a Work Order

pursuant to this Deed.

2.1.2. The Service Providers standing offer in clause 2.1.1 will remain open foracceptance by the Department for the Term in accordance with this Deed.

2.1.3. The Service Provider acknowledges that:

a. it is one of a number of suppliers on the Panel which may be requested bythe Department to provide the Services, and

b. The Department may conduct a supplementary procurement process at anytime and in its discretion, in order to increase the number of suppliers on the

Panel.

2.1.4. The Department may extend the Term of this Deed for a further period endingnot later than the Extension Date by notice in writing delivered to the ServiceProvider not less than 30 days before the Initial End Date. Any extension will

be on the same terms and conditions, and cover the same Services, as set out in

this Deed.

2.2. Work Orders

2.2.1. The Service Provider acknowledges that when the Department requires anyServices, the Department may approach the Service Provider [and/or one or

more other suppliers on the Panel,] or may perform the Services itself.

2.2.2. If the Department wishes to issue a Work Order to the Service Provider, theDepartment may consult with the Service Provider to determine its availabilityto perform the Services required, the scope of the Services, and the timing of

Service delivery.

2.2.3. If the Department seeks competitive quotes in the circumstance envisaged by

clause 2.2.3, the Department may:

a. seek quotes on a fixed price or other basis, and

b. give suppliers (including the Service Provider) the opportunity to quote onthe basis of the rates set out in their respective deeds of standing offer

with the Department.

2.2.4. The Department will submit each Work Order substantially in the format set outin Schedule 5.


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2.2.5. The Service Providers standing offerprovided in clause 2.1.1 will be acceptedby the Department each time the Department sends a Work Order to the Service

Provider.

2.2.6. The Department will specify in the Work Order the precise Services to be

performed and the other items listed in Schedule 5.

2.2.7. Each Work Order sent to the Service Provider by the Department in accordancewith this Deed will create a separate Contract between the Department and the

Service Provider.

2.2.8. The Parties agree that the terms of each Contract will be those set out inSchedule 2, which will be binding on the Parties whether or not a copy of the

terms set out in Schedule 2 is attached to each Work Order.

2.3. The Department not bound to order from Service Provider

2.3.1. The Department:

a. is not obliged to place any Work Order with the Service Provider or torequest any volume of Services from the Service Provider, and

b. may at any time purchase or acquire services the same as, or similar to, theServices [from another Supplier on the Panel or from any other person on

such terms and conditions as the Department wishes, or

c. may at any time itself undertake performance of services the same as orsimilar to the Services.

2.4. Notice of Inclusion of an Agency

2.4.1. Except to the extent specifically agreed to the contrary by the Department, allinformation relating to this Deed or any related matter must only be madeavailable to Additional Agencies by the Department

2.4.2. Where an Additional Agency wishes to acquire any part of the Services it willfirst issue a Notice of Inclusion to the Service Provider.

2.4.3. Upon the Service Providers receipt of a Notice of Inclusion, a separate Deedwill be created between the Service Provider and the relevant Additional Agencywhich will be on terms identical to the terms of this Deed with the exception

that:

a. References to Commonwealth of Australia (as represented by theAttorney-Generals Department ABN 92 661 124 436) as the contracting

party and the Department will be references to the relevant Additional

Agency detailed in the Notice of Inclusion;

b. Paragraph C in the Context will not apply;


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c. This clause 2.4 and the definitions of Additional Agency and Notice ofInclusion in clause 1.1.1 of this Deed will not apply; and

d. The amendments set out in Attachment A of the Notice of Inclusion willapply

2.4.4. For the avoidance of doubt:

a. any Official Order issued by the Department pursuant to this Deed will notform part of the deed formed pursuant to clause 2.5.3 (or any Contract

formed pursuant to that deed);

b. any Service Request, other request for proposal and quotation, or anyOfficial Order or other action taken by the relevant Additional Agency will

be pursuant to the deed between the Additional Agency and Services

Provider and not this Deed.

3. Fees

3.1. Calculation of fees

3.1.1. The fees, allowances and costs due to the Service Provider for performing theServices will be specified in the Work Order and will be calculated inaccordance with Schedule 4, or as otherwise agreed in the Work Order as a

result of a competitive quote process or special circumstances.

3.1.2. The fees specified in the Work Order will be inclusive of all expenses paid orincurred by the Service Provider. Only those fees, allowances and costs specifiedin the Work Order will be paid by the Department.

3.1.3. Where Specified Personnel are nominated by the Department in a Work Order:

a. those Specified Personnel must be utilised by the Service Provider asspecified in the Work Order, and

b. those Specified Personnel must be charged out at the rates specified in

Schedule 4 unless otherwise agreed by the Department.

3.2. Invoices and payment

3.2.1. Invoices for the Services must be submitted, together with any supporting

documentation, in the manner specified in clause 3.1.3 ofSchedule 2.

3.3. Interest

3.3.1. For the purpose of this clause 3.3:

General Interest

Charge Rate

means the general interest charge rate determined under

section 8AAD of the Taxation Administration Act1953


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on the day payment is due, expressed as a decimal rateper day;

Small Business

the day that

payment is made

means an enterprise that employs less than the full time

equivalent of 20 persons (full time equivalent is asdefined by the Australian Bureau of Statistics) on the day

the contract is entered into. If the enterprise is anassociated entity as defined in section 50AAA of the

Corporations Act 2001, this test is applied to the group ofassociated entities as a whole; and

is the day when the Agencys system generates a payment

request into the banking system for payment to theService Provider.

3.3.2. Subject to clause 3.3.4, the Department will pay interest on late payments to theService Provider as follows:

a. for payments made by the Department 30 days and up to 60 days after the

amount became due and payable, only where the Service Provider issues a

correctly rendered invoice for the interest; or

b. for payments made by the Department more than 60 days after the amountbecame due and payable, the Department will pay the interest accrued

together with the payment.

3.3.3. Interest payable under this clause 3.3 will be simple interest on the unpaid amount

at the General Interest Charge Rate, calculated in respect of each day from theday after the amount was due and payable, up to and including the day that

payment is made as represented by the following formula:

SI = UA x GIC x D

where:

SI = simple interest amount;

UA = the unpaid amount;

GIC = General Interest Charge Rate daily rate; and

D = the number of days from the day after payment was due up to andincluding the day that payment is made

3.3.4. Clause 3.3 applies if at the date of entering into the contract:

a. the Service Provider is a Small Business;

b. the value of the contract is not more than A$1 million (GST inclusive);

c. the amount of the interest payable exceeds A$10;


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d.the Services do not relate to a procurement of real property (including leasesand licences); and

e. the procurement is for a departmental item, not an administered item. Ifrequired, the Department will clarify for the Service Provider whether the

procurement is for a departmental or administered item.

4. Termination

4.1. Termination for convenience

4.1.1. The Department may, at any time and in its absolute discretion, by notice

terminate this Deed or reduce the scope of the Services with immediate effect.

4.1.2. Upon receipt of a notice of termination or reduction, the Service Provider must:

a. stop or reduce work as specified in the notice

b. take all available steps to minimise loss resulting from that termination orreduction, and

c. continue work under any Contract for Ordered Services formed prior to thedate of the notice of termination until such work is completed in accordance

with that Contract.

4.1.3. Where there has been a termination under clause 4.1.1, the Department will beliable only, to pay any amount due under a Contract formed prior to the date of

the notice of termination.

4.1.4. For the avoidance of doubt, the Department will not be liable to pay anycompensation to the Service Provider in the event of termination under clause

4.1.1.

4.2. Termination for default

4.2.1. Where a Party fails to satisfy any of its obligations under this Deed, the otherParty, if it considers that the failure is:

a. not capable of remedy may, by written notice, terminate this Deedimmediately, or

b. capable of remedy may, by written notice require that the failure beremedied within the time specified in the notice (not less than 10 days) and,if not remedied within that time, may terminate this Deed immediately by

giving a second written notice.

4.2.2. The Department may also, by written notice terminate this Deed immediately(but without prejudice to any prior right of action or remedy which either Partyhas or may have) if:

a. being a corporation, the Service Provider:


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i. comes under one of the forms of external administration referred to inchapter 5 of the Corporations Act 2001 (Cth), or has an order made

against it for the purpose of placing it under external administration, or

ii. is the subject of an application filed with an Australian court seekingthe appointment of a liquidator, receiver or other external administrator,

or

b. being an individual, the Service Provider becomes bankrupt or enters into ascheme of arrangement with creditors

c. the Service Provider suffers a change in Control or ownership which, in theDepartment's opinion, adversely affects the Service Providers ability to

provide the Ordered Services, or

d. the Service Provider ceases, or threatens to cease, to carry on business.

5. General Provisions

5.1. Waiver

5.1.1. A failure or delay by a Party to exercise any right it holds under this Deed will

not operate as a waiver of that right.

5.1.2. A single or partial exercise by a Party of any right it holds under this Deed willnot prevent that Party from exercising that right again or exercising that right to

the extent it has not already been exercised.

5.1.3. In this clause 5.1, the word right means a right or remedy provided by this

Deed or at law.

5.2. Assignment and novation

5.2.1. The Service Provider cannot novate its obligations and must not assign its rightsunder this Deed without, in either case, prior approval in writing from theDepartment.

5.2.2. The Service Provider must not consult with any other person for the purposes of

entering into an arrangement that will require novation of this Deed without firstconsulting the Department.

5.3. Notices

5.3.1. Any notice, request or other communication to be given or served pursuant to

this Deed will be in writing and dealt with as follows:

a. if given by the Service Provider to the Department - marked for the attentionof the Departments Representative and addressed as specified in Item 2

[Departments Representative and Address for Notices] of Schedule 1, or


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b. if given by the Department to the Service Provider - marked for the attentionof the Service Providers Representative and addressed as specified in Item

3 [Service Providers Representative and Address for Notices] of

Schedule 1.

5.3.2. A notice is to be:

a. signed by the person giving the notice and delivered by hand

b. signed by the person giving the notice and sent by pre-paid post, or

c. transmitted electronically by the person giving the notice by electronic mailor facsimile transmission.

5.3.3. A notice is deemed to be effective:

a. if delivered by hand, upon delivery to the relevant address

b. if sent by pre-paid ordinary post within Australia, upon the expiration of [2]Business Days after the date on which it was sent

c. if transmitted electronically, upon actual receipt by the sender of anacknowledgment that the communication has been properly transmitted tothe recipient, and

d. in any event, if received after 5.00pm (local time in the place of receipt) ona Business Day or on a day that is not a Business Day, on the next Business

Day.

5.3.4. Either Party may, by written notice to the other, change its Representative.Where the Service Provider wishes to change its Representative, the ServiceProvider must first obtain the Departments written consent (such consent not to

be unreasonably withheld).

5.4. Compliance with Fair Work Principles

5.4.1. The Service Provider must comply, and as far as practicable must ensure itssubcontractors comply, with all relevant requirements of the Fair WorkPrinciples as set out in the Fair Work Principles User Guide (available at

www.deewr.gov.au/fairworkprinciples), including by:

a. complying with all applicable workplace relations, occupational health andsafety and workers' compensation laws;

b. informing the Agency of any adverse Court or Tribunal decision for abreach of workplace relations law, occupational health and safety laws orworkers compensation laws made against it during the term of this deed

and each Contract and any remedial action it has taken, or proposes to take,

as a result of the decision;
http://www.deewr.gov.au/fairworkprincipleshttp://www.deewr.gov.au/fairworkprincipleshttp://www.deewr.gov.au/fairworkprinciples


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c. providing the Agency any information the Agency reasonably requires toconfirm that the Service Provider (and any subcontractor) is complying with

the Fair Work Principles; and

d. participating in all compliance activities associated with its legalobligations, including those arising under the Fair Work Principles.Compliance activities may include responding to requests for informationand/or audits undertaken by the Commonwealth, its nominees and/or

relevant regulators.

5.4.2. Compliance with the Fair Work Principles shall not relieve the Service Providerfrom its responsibility to comply with its other obligations under this deed and

each Contract.

5.4.3. If the Service Provider does not comply with the Fair Work Principles, withoutprejudice to any rights that would otherwise accrue to the Agency, the Agency,or any other Commonwealth agency, shall be entitled to publish details of theService Provider's failure to comply (including the Service Provider's name) and

to otherwise provide those details to other Commonwealth agencies.

5.4.4. As far as practicable, the Service Provider must:

a. not use a subcontractor in relation to this deed and each Contract where thesubcontractor would be precluded from contracting directly with the Agencyunder the requirements of the Fair Work Principles; and

b. ensure that all subcontracts impose obligations on subcontractors equivalentto the obligations specified in clauses 5.4.1 to Error! Reference source not

found..

5.5. Applicable law

5.5.1. This Deed is to be construed in accordance with, and any matter related to it is tobe governed by, the law of the Australian Capital Territory.

5.5.2. The Parties submit to the jurisdiction of the courts of that Territory.


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SIGNATURE PAGE

EXECUTED as a Deed.

SIGNED SEALED AND )DELIVERED for and on behalf of )the COMMONWEALTH OF )AUSTRALIA AS REPRESENTED )BY THE ATTORNEY- )GENERALS DEPARTMENT )By însert name of signatory^ )însert signatorys position^ )

IN THE PRESENCE OFînsert name of witness^ )

DATE EXECUTED )

SIGNED SEALED AND )DELIVERED for and on behalf of the )SERVICE PROVIDER )By însert name of signatory^ )însert signatorys position^ )


DATE EXECUTED )


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SCHEDULE 1. ITEMS

1. Timeframe (see clauses 1.1 and 2.1)

Initial End Date:

Extension Date (clause 2.1.4):

2. Departments Representative and Address for Notices (see clause 1.1 and

5.3)

Departments Representative:

Address for Notices:

Service Providers Representative and Address for Notices (see clauses1.1 and5.3)

Service Providers Representative:



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SCHEDULE 2.CONTRACT TERMS AND CONDITIONS

Operative Provisions

The following terms and conditions apply when a Contract is created by the

delivery of a Work Order by the Department to the Service Provider.

1. Interpretation

1.1. Definitions

1.1.1. In the Contract, unless the context indicates otherwise:

Advisers means a Partys agents, contractors or advisers

engaged in, or in relation to, the performance or

management of the Contract

the Department means the Attorney-Generals DepartmentBusiness Day means a weekday other than a public holiday in

the Australian Capital Territory

Commonwealth means the Commonwealth of Australia

Commonwealth Material means any Material:

a. provided by the Department to the ServiceProvider for the purposes of the Contract, or

b. derived at any time from Material referred toin paragraph a

Confidential Information means:

c. any information described as confidential inthe Work Order, and

d. information that is agreed between theParties in writing after the ContractCommencement Date as constitutingconfidential information for the purposes of

the Contract

Contract means the contract created by the delivery by the

Department of the Work Order to the ServiceProvider in accordance with clause 2.2.5 of the

Deed

Contract

Commencement Date

means the commencement date specified in the

Work Order

Contract End Date means the later of the Contract Initial End Dateand the final date of any extension of the Term

of the Contract under clause 2.1.2 of thisContract


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Contract Extension Date means the latest date to which the Contract maybe extended by the Department as specified inthe Work Order

Contract Initial End

Date

means the date specified in the Work Order

Contract Material means any Material:

e. created for the purposes of the Contract

f. provided, or specified in the Work Order tobe provided, to the Department as part of theOrdered Services, or

g. derived at any time from the Materialreferred to in paragraph a or b

Deed means the deed of standing offer dated ^insertdate^between the Department and the ServiceProvider in respect of the provision of Services

Departments

Representative

has the meaning set out in clause 1.1 of the Deed

Existing Material means Material in existence at the ContractCommencement Date, or developed by theService Provider independently of the

performance of the Deed or the Contract andspecified in the Work Order

GST has the meaning given to it in the GST ActGST Act meansA New Tax System (Goods and Services

Tax) Act 1999 (Cth)

Intellectual Property includes:

h. all copyright (including rights in relation to

phonograms and broadcasts)

i. all rights in relation to inventions, plantvarieties, trademarks (including service

marks), designs and circuit layouts, and

j. all other rights resulting from intellectualactivity in the industrial, scientific, literaryor artistic fields

but does not include:

k. Moral Rights

l. the non-proprietary rights of performers, or

m. rights in relation to Confidential Information

Material means any thing in relation to which Intellectual

Property rights arise


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Moral Rights includes the following rights of an author ofcopyright Material:

n. the right of attribution of authorship

o. the right of integrity of authorship, and

p. the right not to have authorship falselyattributed

Official Information means any information developed, received orcollected by or on behalf of the Department towhich the Service Provider gains access under orin connection with this Contract, and includesthe Contract Material and the terms of theContract

Ordered Services means the services specified in the Work Order

and includes all:q. incidental services

r. functions required for the proper provisionof these services, and

s. Contract Material specified in the Work

Order

Party means, as applicable, the Department or theService Provider

Personal Information has the same meaning as the term personal

information in thePrivacy Act 1988 (Cth), thatis: information or an opinion (includinginformation or an opinion forming part of a

database), whether true or not and whetherrecorded in a material form or not, about an

individual whose identity is apparent, or canreasonably be ascertained, from the informationor opinion

Personnel means:

t. in relation to the Service Provideranynatural person who is an officer, employeeor Adviser of the Service Provider or of its

subcontractors, including any SpecifiedPersonnel, and

u. in relation to the Department - any naturalperson, other than a person referred to inparagraph (a), who is an officer, employee

or Adviser of the Department

Service Provider means the Party identified as such in the Deed


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Service Providers

Representative

has the meaning set out in clause 1.1 of the Deed

Specified Personnel means the persons specified as such in the WorkOrder

Tax Invoice has the meaning given to it in the GST Act

Taxable Supplies has the meaning given to it in the GST Act

Term means the term of the Contract, being the periodfrom the Contract Commencement Date to theContract End Date

Third Party Interest means any legal or equitable right, interest,power or remedy in favour of any person other

than the Department or the Service Provider inconnection with the Contract, including any right

of possession, receivership, control or power ofsale and any mortgage, charge, security or otherinterest, and

Work Order means the order for services placed inaccordance with clause 2 of the Deed that

formed this Contract and includes anyamendment or replacement to that order agreedin writing between the Parties.

1.2. Interpretation

1.2.1. Capitalised terms that are contained in this Contract but not defined in clause 1.1have the meanings given to them in clause 1.1 of the Deed.

1.2.2. In the Contract, unless the contrary intention appears:

a. words importing a gender include any other gender

b. words in the singular include the plural and words in the plural include thesingular

c. clause headings are inserted for convenient reference only and have noeffect in limiting or extending the language of provisions to which they refer

d. words importing a person include a partnership and a body whethercorporate or otherwise

e. all references to dollars are to Australian dollars

f. a reference to any legislation or legislative provision (whether primary orsubordinate) includes any statutory modification, substitution or re-

enactment of such legislation or legislative provision

g. if any word or phrase is given a defined meaning, any other part of speechor other grammatical form in respect of that word or phrase has a

corresponding meaning

h. the Work Order and any attachments form part of this Contract


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i. if any conflict arises between the terms and conditions contained in theclauses of this Contract and any part of the Work Order (and attachments if

any), the terms and conditions of the Work Order prevail

j. if any conflict arises between any part of the Work Order and any part of an

attachment to this Contract, the Work Order prevails, and

k. a reference to writing is a reference to any representation of words, figures

or symbols, whether or not in a hard copy paper form.

1.3. Guidance on Construction

1.3.1. The Contract records the entire agreement between the Parties in relation to its

subject matter.

1.3.2. As far as possible all provisions of this Contract will be construed so as not to be

void or otherwise unenforceable.

1.3.3. If anything in this Contract is void or otherwise unenforceable then it will besevered and the rest of the Contract remains in force.

1.3.4. A provision of this Contract will not be construed to the disadvantage of a Partysolely on the basis that it proposed that provision.

1.4. Commencement

1.4.1. The terms of the Contract apply on and from the Contract Commencement Date.

2. Performance

2.1. Ordered Services

2.1.1. During the Term, the Service Provider must:

a. perform the Ordered Services to a standard recognised as a highprofessional standard by the industry to which the Service Provider belongs

b. provide to the Department any Contract Material specified in the WorkOrder

c. comply with all applicable Commonwealth and industry standards andguidelines

d. comply with the time frame for the performance of the Ordered Servicesspecified in the Work Order

e. submit invoices and any required supporting documentation in the mannerspecified in clause 3.1 of this Contract

f. obtain all approvals and licences necessary to perform the Ordered Servicesin accordance with the Contract, and

g. adopt relevant best practice, including any Departmental, Commonwealth orindustry standards and guidelines specified in the Work Order.


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2.1.2. The Department may extend the Term of the Contract for a further period endingnot later than the Contract Extension Date by notice in writing delivered to the

Service Provider not less than 30 days before the Contract Initial End Date.

2.2.

Liaison with Departments Representative2.2.1. The Service Provider agrees:

a. to liaise with the Departments Representative as reasonably required, and

b. to comply with directions of the Departments Representative to the extentthat they are consistent with this Contract.

2.3. Subcontractors

2.3.1. The Service Provider agrees not to subcontract the performance of any part of

the Ordered Services without the Departments prior written approval.

2.3.2. The Department may impose any conditions it considers appropriate whengiving its approval under clause 2.3.1.

2.3.3. The Service Provider agrees to make available to the Department (if requested)details of all subcontractors engaged in the performance of the Ordered Services.

2.3.4. The Service Provider acknowledges, and must inform all subcontractors, that theDepartment may publicly disclose the names of any subcontractors engaged in

the performance of the Ordered Services.

2.4. Specified Personnel

2.4.1. The Service Provider agrees that the Specified Personnel will perform work inrelation to the Ordered Services in accordance with this Contract.

2.4.2. If Specified Personnel are unable to perform the work as required under clause2.4.1, the Service Provider agrees to notify the Department immediately.

2.4.3. The Service Provider agrees, at the request of the Department acting in itsabsolute discretion, to remove Personnel from work in relation to the Ordered

Services.

2.4.4. If clause 2.4.2 or clause 2.4.3 applies, the Service Provider will providereplacement Personnel acceptable to the Department at no additional cost and at

the earliest opportunity.

2.4.5. If the Service Provider does not comply with clause 2.4.4 above, the Departmentmay terminate this Contract in accordance with clause 10.2 of this Contract.


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2.5. Responsibility of Service Provider

2.5.1. The Service Provider is fully responsible for the performance of the OrderedServices and for ensuring compliance with the requirements of this Contract, and

will not be relieved of that responsibility because of any:

a. involvement by the Department in the performance of the Ordered Services

b. subcontracting of the Ordered Services

c. acceptance by the Department of Specified Personnel, or

d. payment made to the Service Provider on account of the Ordered Services.

2.6. Engagement of illegal workers prohibited

2.6.1. The Service Provider must ensure that all its Personnel are at all times:

a. Australian citizens, orb. in the case of persons who are not Australian citizens, not illegal workers,

and have been the subject of a criminal history check.

2.6.2. The Service Provider must remove or cause to be removed any illegal workerfrom any involvement in the carrying out of the Ordered Services and arrange

for their replacement at no cost to the Department, as soon as the ServiceProvider becomes aware of the involvement of the illegal worker or workers.The Service Provider must immediately notify the Department of the illegal

worker and of the removal.

2.6.3. Compliance with the Service Providers obligations under this clause 2.6 will

not give rise to an entitlement to claim any delay or otherwise excuse the ServiceProvider from compliance with its obligations under the Contract.

2.6.4. When requested by the Department, the Service Provider will provide evidencethat it has taken all reasonable steps to ensure that it has complied and iscomplying with its obligations under this clause 2.6, including in relation to any

subcontractors.

2.6.5. The Service Provider must provide the Department with the evidence referred toin clause 2.6.4 within 7 days of receiving the Departments request.

2.6.6. For the purposes of this clause, an illegal worker is a person who:

a. has unlawfully entered and remains in Australia

b. has lawfully entered Australia, but remains in Australia after his or her visahas expired, or

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


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2.7. Step in rights

2.7.1. Without prejudice to any other rights or remedies the Department may have, ifthe Service Provider fails to provide any part of the Ordered Services (Non-Performed Services) in accordance with the Contract for more than 48 hours,

the Department may perform or have performed that part of the OrderedServices and all costs and outgoings incurred by the Department in excess of theamount the Service Provider would have been paid for the Non-PerformedServices, must be reimbursed by the Service Provider to the Department upon

demand.

2.7.2. The Service Provider will not be entitled to receive any fees that relate to theOrdered Services performed by the Department or its nominee underclause 2.7.1.

3.

Fees

3.1. Payment

3.1.1. The Department will pay the Service Provider the fees specified in the WorkOrder following receipt of correctly rendered invoices:

a. monthly in arrears, or

b. (if specified otherwise in the Work Order) as set out in the Work Order.

3.1.2. Invoices must not be rendered until the Department is satisfied that the OrderedServices to which the invoices relate have been delivered in accordance with the

Contract and the disbursements to which the invoices relate are reimbursableunder the Contract.

3.1.3. An invoice will be correctly rendered for the purposes of this clause 3.1, if:

a. the amount claimed is in respect of the Ordered Services actually performed

and costs and expenses actually incurred

b. all claims for reimbursement of disbursements are supported by receiptswhich clearly identify and substantiate the payment of those disbursements

to the satisfaction of the Department, and

c. the invoice is sent to the Department, either:

i. electronically,to [email protected] in PDF format (or above) or

ii. in hard copy, to GPO Box 1245, TUGGERANONG BC ACT 2901.

The Department's preference is to receive the invoices electronically at the

address specified in clause 3.1.3.c.i.

d. the invoice sets out:

i. a description of the relevant Ordered Services (and date provided) andapplicable disbursements paid (and date paid)


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ii. full details of all disbursements claimed in accordance with Schedule 4of the Deed, or claimed under a quote accepted by the Department

under clause 2 of the Deed (as applicable)

iii. the title of the Contract

iv. Work Order reference number (if applicable)

v. Service Providers ABN

vi. the Departments ABN or address

vii. that it is a Tax Invoice

viii.amount of GST included in the invoice value (if any), and

ix. name of the Departments Representative.

3.1.4. The Department will be entitled to delay any payment of fees or disbursements

until the Service Provider has satisfied the Department that:

a. delivery of the portion of the Ordered Services to which the fees relate hasbeen completed to the satisfaction of the Department

b. the fees have been calculated accurately and in accordance with the

Contract, and

c. the invoiced disbursements have been paid by the Service Provider and arereimbursable by the Department under the Contract.

3.1.5. Where the Service Provider invoices the Department for any expense incurred

by the Service Provider in connection with the provision of the OrderedServices, the amount invoiced to the Department must not include input taxcredits claimed, or able to be claimed, by the Service Provider in connection

with that expense.

3.1.6. If an invoice is found to have been incorrectly rendered after payment, anyoverpayment will be a debt recoverable from the Service Provider and withoutlimiting recourse to other available means, may be offset against any amount

subsequently due by the Department to the Service Provider, whether under theContract or otherwise.

3.1.7. Without prejudice to its rights at common law or otherwise, the Department maydeduct any payment or debt owed by the Service Provider to the Department

under the Contract from the payment of any sum due to the Service Provider.

3.2. Taxes, duties and government charges

3.2.1. Except as provided by this clause 3.2, the Service Provider agrees to pay alltaxes, duties and government charges imposed or levied in Australia or overseas

in connection with the performance of this Contract.


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3.2.2. Unless otherwise indicated, the fees and all other consideration for any supplymade under this Contract are exclusive of any GST imposed on the supply.

3.2.3. If one Party (the supplier) makes a taxable supply to the other Party (therecipient) under this Contract, on receipt of a tax invoice from the supplier, therecipient will pay without setoff an additional amount to the supplier equal to the

GST imposed on the supply in question.

3.2.4. No Party may claim or retain from the other Party any amount in relation to asupply made under this Contract for which the first Party can obtain an input tax

credit or decreasing adjustment.

3.3. Superannuation

3.3.1. This Contract is entered into on the understanding that the Department is not

required to make any superannuation contributions, unless stated to the contraryin Schedule 4.

3.4. Interpretation

3.4.1. In this clause Error! Reference source not found.:

Official

Resources

includes:

v. Official Information

w. people who work for or with the Department, and

x. assets belonging to (even if in the possession ofcontracted providers) or in the Departmentspossession

Security

Classified

Resources

means Official Resources that, if compromised, couldhave adverse consequences for the Department and theCommonwealth

Security Incident means a security breach, violation, contact or approach

from those seeking unauthorised access to Official

Resources.

3.5. Confidentiality of Official Information

3.5.1. Subject to clause 4.2.2, the Service Provider will not, without the Departmentsprior written authorisation, disclose any Official Information to any person

(unless required to do so by law).

3.5.2. The Service Provider is authorised to provide Official Information to thosePersonnel and subcontractors who require access for the purposes of this

Contract.

3.5.3. The Service Provider agrees, on request by the Department at any time, to

arrange for the Personnel and subcontractors referred to in clause 3.5.2 to give a


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written undertaking in a form acceptable to the Department relating to the use

and non-disclosure of Official Information.

3.5.4. The Service Provider agrees to secure all Official Information against loss andunauthorised access, use, modification or disclosure.

3.6. Other security obligations of Service Provider

3.6.1. The Service Provider agrees:

a. to ensure that all Personnel that require access to Security ClassifiedResources have obtained the appropriate security clearance

b. to make its Personnel available to attend any security training provided bythe Department

c. to notify the Department immediately if it becomes aware that a Security

Incident has occurred and otherwise implement the Departmentsprocedures for Security Incident reporting as advised by the Department

from time to time

d. to cooperate with the Department, and comply with any directions issued bythe Department, in relation to any Security Incident

e. not to perform the Ordered Services outside Australia without theDepartments prior written approval, and

f. to comply with any variations or additions to those requirements as notifiedby the Department from time to time.

3.6.2. The Service Provider agrees to implement security procedures to ensure that itmeets its obligations under this clause Error! Reference source not found. and

will provide details of these procedures to the Department on request.

4. Intellectual Property

4.1. Use of Commonwealth Material

4.1.1. The Department agrees to provide Commonwealth Material to the ServiceProvider as specified in the Work Order.

4.1.2. The Department grants (or will procure) a royalty-free, non-exclusive licence forthe Service Provider to use, reproduce and adapt the Commonwealth Material

for the purposes of this Contract.

4.1.3. The Service Provider agrees to use the Commonwealth Material strictly inaccordance with any conditions, restrictions or directions of the Department.

4.1.4. The Service Provider agrees, on expiration or earlier termination of thisContract, to deal with all Commonwealth Material as directed by theDepartment, subject to any requirement of law binding on the Service Provider.


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4.2. Rights in Contract Material

4.2.1. Intellectual Property in all Contract Material vests or will vest in theDepartment.

4.2.2. Clause 5.2.1 does not affect the ownership of Intellectual Property in:

a. any Commonwealth Material incorporated into Contract Material, or

b. any Existing Material.

4.2.3. The Service Provider grants to (or will procure for) the Department a permanent,irrevocable, royalty-free, world-wide, non-exclusive licence (including a right ofsub-licence) to use, reproduce, adapt and exploit any Existing Material inconjunction with the Contract Material.

4.2.4. The Service Provider agrees, on request by the Department, to create, sign,execute or otherwise deal with any document necessary or desirable to give

effect to this clause 4.2.

4.2.5. The Service Provider warrants that:

a. it is entitled, or

b. it will be entitled at the relevant time,

to deal with the Intellectual Property in the Contract Material and ExistingMaterial in the manner provided for in this clause 4.2.

4.3. Moral Rights

4.3.1. In this clause 4.3:

Permitted Acts means any of the following classes or types of acts oromissions:

y. using, reproducing, adapting or exploiting all or anypart of the Contract Material, with or without

attribution or authorship

z. supplementing the Contract Material with any other

Material

aa. using the Contract Material in a different context to

that originally envisaged,

but does not include false attribution of authorship.

4.3.2. Where the Service Provider is a natural person and the author of the ContractMaterial, he or she consents to the performance of the Permitted Acts by the

Department or any person claiming under or through the Department.


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4.3.3. Where clause 4.3.2 does not apply, the Service Provider agrees to obtain fromeach author a written consent which extends directly or indirectly to the

performance of the Permitted Acts by the Department or any person claimingunder or through the Department (whether occurring before or after the consentis given) and, on request, to provide the executed original of any such consent to

the Department.

4.3.4. This clause 4.3 does not apply to any Commonwealth Material incorporated inthe Contract Material.

5. Confidential Information of the Service Provider

5.1. Confidential Information not to be disclosed

5.1.1. Subject to clause 5.2, the Department will not, without the prior writtenauthorisation of the Service Provider, disclose any Service Providers

Confidential Information to a third party.

5.2. Exceptions to obligations

5.2.1. The obligations of the Department under clause 5.1.1 will not be taken to havebeen breached to the extent that the Service Providers Confidential Information:

a. is disclosed by the Department to its Personnel solely in order to comply

with its obligations, or to exercise its rights, under this Contract

b. is disclosed to the Department internal management Personnel, solely toenable effective management or auditing of Contract-related activities

c. is disclosed by the Department to the responsible Minister

d. is disclosed by the Department in response to a request by a House or aCommittee of the Parliament of the Commonwealth of Australia

e. is shared by the Department within the Departments organisation, or with

another agency, where this serves the Commonwealths legitimate interests

f. is authorised or required by law to be disclosed, or

g. is in the public domain otherwise than due to a breach of this clause 5.

5.2.2. Where the Department discloses the Service Providers Confidential Informationto another person pursuant to clauses 5.2.1.a - 5.2.1.e, the Department will notifythe receiving person that the information is confidential.

5.2.3. In the circumstances referred to in clauses 5.2.1.a, 5.2.1.b and 5.2.1.e, theDepartment agrees not to provide the information unless the receiving person

agrees to keep the information confidential.

5.2.4. The Service Provider agrees to provide all reasonable assistance with respect tothe release of the Service Providers Confidential Information where disclosure

is required under clause 6.2.1d.


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5.3. Period of confidentiality

5.3.1. The obligations under this clause 5 will continue, notwithstanding the expiry ortermination of the Contract or the Deed.

6. Privacy

6.1. Interpretation

6.1.1. In this clause 7:

Information

Privacy

Principle

has the same meaning as it has in thePrivacy Act 1988

(Cth).

6.2. Obligations of Service Provider in relation to privacy

6.2.1. The Service Provider agrees, in providing the Ordered Services:a. not to do any act or engage in any practice which, if done or engaged in by

the Department, would be a breach of an Information Privacy Principle, and

b. to comply with any directions, guidelines, determinations orrecommendations of the Department, to the extent that they are consistent

with the Information Privacy Principles.

6.2.2. The Service Provider agrees to notify the Department immediately if it becomesaware of a breach or possible breach of any of its obligations under this clause 7.

6.3. Period of application

6.3.1. The obligations under this clause 7 will continue, notwithstanding the expiry ortermination of this Contract or of the Deed.

7. Dealing with Copies

7.1. Interpretation

7.1.1. In this clause 7:

Copy means any document, device, article or medium in which

Commonwealth Material, Contract Material, or OfficialInformation is embodied.

7.2. Dealings with Copies

7.2.1. Property in all Copies vests or will vest in the Department.

7.2.2. The Service Provider agrees to establish and maintain procedures to secure theCopies against loss and unauthorised access, use, modification or disclosure.


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7.2.3. The Service Provider agrees, on expiration or termination of this Contract, todeal with all Copies as directed by the Department, subject to any requirement of

law binding on the Service Provider.

8.

Liability

8.1. Proportionate liability regimes excluded

8.1.1. To the extent permitted by law, the operation of any legislative proportionateliability regime is excluded in relation to any claim against the Service Provider

under or in connection with this Contract.

8.2. Indemnity

8.2.1. The Service Provider indemnifies the Department from and against any:

a. cost or liability incurred by the Department

b. loss of or damage to property of the Department, or

c. loss or expense incurred by the Department in dealing with any claimagainst it including legal costs and expenses on a solicitor/own client basis

and the cost of time spent, resources used or disbursements paid by theDepartment,

arising from either:

d. a breach by the Service Provider of this Contract, or

e. an act or omission involving fault on the part of the Service Provider or itsPersonnel in connection with this Contract.

8.2.2. The Service Providers liability to indemnify the Department under clause 8.2.1will be reduced proportionately to the extent that any act or omission involvingfault on the part of the Department or its Personnel contributed to the relevant

cost, liability, loss, damage or expense.

8.2.3. The right of the Department to be indemnified under this clause 8.2 is in additionto, and not exclusive of, any other right, power or remedy provided by law, butthe Department is not entitled to be compensated in excess of the amount of the

relevant cost, liability, loss, damage or expense.

8.2.4. In this clause 8.2, references to the Department include officers, employees and

agents of the Department.

9. Dispute Resolution

9.1. Procedure for dispute resolution

9.1.1. The Parties agree that a dispute arising under this Contract will be dealt with asfollows:


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a. the Party claiming that there is a dispute will give to the other Party a noticesetting out the nature of the dispute

b. within five Business Days each Party will nominate a representative nothaving any prior involvement in the dispute

c. the representatives will try to settle the dispute by direct negotiationbetween them

d. failing settlement within a further 10 Business Days, the Parties may agree

to refer the dispute to an independent third person with power:

i. to intervene and direct some form of resolution, in which case theParties will be bound by that resolution, or

ii. to mediate and recommend some form of non-binding resolution

e. the Parties will cooperate fully with any process instigated under

clause 9.1.1.d in order to achieve a speedy resolution, and

f. if a resolution is not reached within a further 20 Business Days, either Partymay commence legal proceedings.

9.2. Costs

9.2.1. Each Party must bear its own costs of complying with this clause 10 and theParties must bear equally the cost of any third party engaged under clause 9.1.

9.3. Continued performance

9.3.1. Despite the existence of a dispute, the Service Provider must (unless requested inwriting by the Department not to do so) continue to perform the OrderedServices.

9.4. Exemption

9.4.1. This clause 10 does not apply to:

a. action by the Department under or purportedly under clause 11.1 of thisContract

b. action by either Party under or purportedly under clause 11.2 of this

Contract, or

c. either Party commencing legal proceedings for urgent interlocutory relief.

10. Termination or reduction in scope of Services

10.1. Termination for convenience

10.1.1. The Department may by notice, at any time and in its absolute discretion,

terminate this Contract or reduce the scope of the Ordered Services immediately.

10.1.2. The Service Provider agrees, on receipt of a notice of termination or reduction:


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a. to stop or reduce work as specified in the notice

b. to take all available steps to minimise loss resulting from that termination orreduction

c. to continue to protect Commonwealth Material, Official Information,Security Classified Resources and Contract Material from unauthorised

disclosure,and

d. to continue work on any part of the Ordered Services not affected by the

notice.

10.1.3. In the event of termination under clause 10.1.1, the Department will be liable

only:

a. to pay any amount due under the Contract and relating to Ordered Servicescompleted before the effective date of termination, and

b. to reimburse any expenses not covered under clause 11.1.3a which theService Provider unavoidably incurs relating entirely to the termination.

10.1.4. The Department will not be liable to pay amounts under clause 11.1.3 whichwould, added to any fees already paid to the Service Provider under this

Contract, together exceed the fees set out in the Work Order.

10.1.5. In the event of a reduction in the scope of the Ordered Services under clause10.1.1, the Departments liability topay fees or meet costs under clause 3 of thisContract will, unless there is agreement in writing to the contrary, reduce in

accordance with the reduction in the Ordered Services.

10.1.6. The Service Provider will not be entitled to compensation for loss of prospectiveprofits.

10.2. Termination for default

10.2.1. If a Party fails to satisfy any of its obligations under this Contract, then the otherParty - if it considers that the failure is:

a. not capable of remedymay, by written notice, terminate the Contractimmediately, or

b. capable of remedymay, by written notice require that the failure beremedied within the time specified in the notice and, if not remedied withinthat time, may terminate the Contract immediately by giving a second

written notice.

10.2.2. The Department may also by written notice terminate this Contract immediately(but without prejudice to any prior right of action or remedy which either Party

has or may have) if:

a. being a corporation the Service Provider:


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i. comes under one of the forms of external administration referred to inchapter 5 of the Corporations Act 2001 (Cth), or has an order made

against it for the purpose of placing it under external administration, or

ii. is the subject of an application filed with an Australian court seeking

the appointment of a liquidator, receiver or other external administrator

b. being an individual, the Service Provider becomes bankrupt or enters into a

scheme of arrangement with creditors

c. the Service Provider suffers a change in Control or ownership which, in theDepartment's opinion, adversely affects the Service Providers ability to

provide the Ordered Services, or

d. the Service Provider ceases, or threatens to cease, to carry on business.

11. Notices

11.1. Format, addressing and delivery

11.1.1. A notice under this Contract is only effective if it is in writing, and dealt with asfollows:

a. if given by the Service Provider to the Departmentmarked for theattention of the Departments Representative at the address specified in the

Deed or as otherwise notified to the Department, or

b. if given by the Department to the Service Providermarked for theattention of the Service Providers Representative at the address specified in

the Deed or as otherwise notified by the Service Provider.

11.1.2. A notice is to be:

a. signed by the person giving the notice and delivered by hand

b. signed by the person giving the notice and sent by pre-paid post, or

c. transmitted electronically by the person giving the notice by electronic mailor facsimile transmission.

11.2. When effective

11.2.1. A notice is deemed to be effective:

a. if delivered by hand, upon delivery to the relevant address

b. if sent by pre-paid ordinary post within Australia, upon the expiration of [2]Business Days after the date on which it was sent

c. if transmitted electronically, upon actual receipt by the sender of anacknowledgement that the communication has been properly transmitted to

the recipient, and


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d. in any event, if received after 5.00pm (local time in the place of receipt) ona Business Day or on a day that is not a Business Day, on the next Business

Day

12.

General provisions

12.1. Occupational health and safety

12.1.1. The Service Provider agrees, in carrying out this Contract, to comply with:

a. all relevant legislation, codes of practice and national standards relating tooccupational health and safety, and

b. all applicable policies and procedures relating to occupational health andsafety including those that apply to the Departments premises when using

those premises.

12.1.2. In the event of any inconsistency between any of the policies and proceduresreferred to in clause 12.1.1.b, the Service Provider will comply with those

policies and procedures that produce the highest level of health and safety.

12.2. Audit and access


a. to give the Departments Representative, or any persons authorised inwriting by the Departments Representative, access to premises where the

Ordered Services are being performed, and

b. to permit those persons to inspect and take copies of any Material relevantto the Ordered Services.

12.2.2. The rights referred to in clause 12.2.1. are subject to:

a. the Department providing reasonable prior notice

b. the reasonable security procedures in place at the premises, and

c. if appropriate, execution of a deed of confidentiality by the persons to whom

access is given.

12.2.3. The Auditor-General and the Privacy Commissioner are persons authorised forthe purposes of this clause 12.2.

12.2.4. This clause 12.2 does not detract from the statutory powers of the Auditor-General or the Privacy Commissioner.

12.3. Insurance


Required

Insurances

means the following insurances:

bb.public liability insurance in respect of each


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occurrence, for at least $ ^insert amount^ million

cc. professional indemnity insurance in respect of eachoccurrence, for at least $ ^insert amount^ million,

and

dd. workers compensation insurance as required by law.


a. to effect and maintain the Required Insurances, and

b. on request, to provide proof of the Required Insurances acceptable to theDepartment.

12.3.3. This clause 12.3 continues in operation for so long as any obligations remain inconnection with the Contract, or in the case of professional indemnity insurance,

for a period of seven (7) years after the expiry or earlier termination of theContract.

12.4. Extension of provisions to subcontractors and Personnel


Requirement means an obligation, condition, restriction or prohibition

binding on the Service Provider under this Contract.

12.4.2. The Service Provider agrees to ensure that:

a. its subcontractors and Personnel comply with all relevant Requirements, and

b. any contract entered into in connection with this Contract imposes allrelevant Requirements on the other Party.

12.4.3. The Service Provider agrees to exercise any rights it may have against any of itssubcontractors, Personnel or third parties in connection with a Requirement in

accordance with any direction by the Department.

12.5. Conflict of interest

12.5.1.In this clause 12.5:Conflict means any matter, circumstance, interest, or activity

affecting the Service Provider, its Personnel orsubcontractors which may or may appear to impair the

ability of the Service Provider to provide the OrderedServices to the Department diligently and independently.

12.5.2. The Service Provider warrants that, to the best of its knowledge after makingdiligent inquiry, at the Commencement Date no Conflict exists or is likely to

arise in the performance of the Ordered Services.


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12.5.3. If, during the period of this Contract a Conflict arises, or appears likely to arise,the Service Provider agrees:

a. to notify the Department immediately

b. to make full disclosure of all relevant information relating to the Conflict,and

c. to take any steps the Department reasonably requires to resolve or otherwisedeal with the Conflict.

12.5.4. If the Service Provider does not notify the Department or is unwilling or unableto resolve or deal with the Conflict as required, the Department may terminate

this Contract in accordance with the provisions of clause 10.2 of this Contract.

12.5.5. The Service Provider agrees that it will not, and will use its best endeavours toensure that any of its Personnel do not, engage in any activity or obtain anyinterest during the term of the Contract that is likely to conflict with or restrictthe Service Provider in providing the Ordered Services to the Department fairly

and independently.

12.6. Relationship of Parties

12.6.1. The Service Provider is not by virtue of this Contract an officer, employee,partner or agent of the Department, nor does the Service Provider have anypower or authority to bind or represent the Department.


a. not to misrepresent its relationship with the Department, and

b. not to engage in any misleading or deceptive conduct in relation to theOrdered Services.

12.7. Waiver

12.7.1. A failure or delay by a Party to exercise any right or remedy it holds under thisContract or at law does not operate as a waiver of that right.

12.7.2.A single or partial exercise by a Party of any right or remedy it holds under thisContract or at law does not prevent the Party from exercising the right again or

to the extent it has not fully exercised the right.

12.8. Variation

12.8.1. A variation of this Contract is binding only if agreed in writing and signed by theParties.

12.9. Assignment

12.9.1. The Service Provider cannot assign its obligations, and agrees not to assign itsrights, under this Contract without the Departments prior written approval.


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^contract title^

^date^

12.10. Survival

12.10.1. Unless the contrary intention appears, the expiry or earlier termination of thisContract will not affect the continued operation of any provision relating to:

a. licensing of Intellectual Property

b. confidentiality

c. privacy

d. audit

e. security

f. an indemnity,

or any other provision which expressly or by implication from its nature isintended to continue.

12.11. Compliance with Legislation


Legislation means a provision of a statute or subordinate legislationof the Commonwealth, or of a State, Territory or local

authority.

12.11.2. The Service Provider agrees to comply with any Legislation applicable to itsperformance of this Contract.

12.12. Applicable law

12.12.1. This Contract is to be construed in accordance with, and any matter related to itis to be governed by, the law of the Australian Capital Territory.

12.12.2. The Parties submit to the jurisdiction of the courts of that Territory.


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^contract title^

^date^

SCHEDULE 3.SERVICES

^Insert description and specifications of the Services required to be provided by

the Service Provider under the Deed^.


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^contract title^

^date^

SCHEDULE 4.FEES AND SPECIFIED PERSONNEL

Fees

Unless otherwise provided in the Work Order, the fees to be paid to the Service

Provider for the Ordered Services specified in the Work Order are to becalculated as follows:

^Specify details of how the GST exclusive fees to be paid to the Service

Provider will be calculated^.

The Department will reimburse the following expenses (other than travelexpenses) incurred by the Service Provider in the performance of the Ordered

Services:

^Indicate whether the Department will cover any expenses incurred by theService Provider in the performance of the Services^.

Specified Personnel

The following are Specified Personnel for the purposes of this Deed unlessotherwise agreed in writing by the Department. These Specified Personnel will

be charged out by the Service Provider at the following rates:

Name^: ^Rate^

Name^: ^Rate^

Name^: ^Rate^

The above rates will remain fixed for a period of12 months from the date of thisDeed. Twelve months after the date of this Deed, and at the expiry of each

subsequent 12 monthperiod during the Term, the Service Providers rates maybe increased by no more than the percentage increase in the Consumer Price

Index (All Groups) for the previous 12 month period.


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^contract title^

^date^

SCHEDULE 5.WORK ORDER

WORK ORDER1

for însert brief description of Services required^

Reference number [ însert SO id number^]

Context

This Work Order is placed on însert date^(Contract Commencement Date).

This Work Order is placed pursuant to and subject to the terms and conditions ofthe deed of standing offer between the Department and însert name of Service

Provider dated însert date of Deed^.

Dates

The Contract Initial End Date specified in this Work Order is ^Specify Date^.

The Contract Extension Date specified in this Work Order is ^Specify Date^.

Services and Contract Material

Însert description and specifications of the Services and/or Contract Material

required to be provided by the Service Provider .

Însert a specific description of the Service Providers obligations, the work to

be performed, expected outcomes and clear performance measures/milestones bywhich standards can be tested^.

The Contract Material to be created or developed by the Service Provider inproviding the Ordered Services is ^Specify^.

Specified Personnel

^Specify details of any particular individuals nominated to undertake and

perform the Services described above in this Work Order, or to provideparticular Contract Material^.

Fees and Invoices

Însert details of the fees to be paid by the Department to the Service Provider .

1The offer to provide the Services under the Deed is accepted and the terms of the Contract in

Schedule 2 of the Deed apply once the Work Order is delivered by the Department to the Service

Provider.


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^contract title^

^date^

Existing Material

^Specify any pre existing Material for which Intellectual Property is not to vestin the Department^.

Commonwealth Material

Însert details of the Material to be provided to the Service Provider by theDepartment to perform the Services specified in this Work Order .

Âlso specify any conditions or restrictions attaching to the Service Providersuse of Commonwealth Material^.

Confidential Information

Service Providers Confidential Information

1. Contract Provisions/Schedules/Attachments

Item Period of Confidentiality

Însert relevant items^

2. Contract related material

Item Period of Confidentiality

Însert relevant items^

Signature

SIGNED by and on behalf of the )COMMONWEALTH OF AUSTRALIA AS )REPRESENTED BY THE ATTORNEY- )

GENERALS DEPARTMENT )By însert name of signatory^ )însert signatorys position^ )

Date )


Date )


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^contract title^

^date^

SCHEDULE 6.NOTICE OF INCLUSION

Deed of Standing Offerbetween

[Additional Agency Full Name]

and

[Supplier]

To:

[inser t name and ABN of Suppli er]

[inser t address for noti ces as per the deed of standing of fer]

Parties

1. [I nser t fu ll name, ABN and address of Additional Agency] (the AdditionalAgency)

2. [I nser t ful l name, ABN and address of Supplier] (the Supplier)

Context

A. The Commonwealth of Australia represented by the Attorney-GeneralsDepartment and the Supplier entered into Deed of Standing Offer dated [insert

date] (Original Deed of Standing Offer) for the Supplier to supply and deliver

the Services to the Department.

B. Under the Original Deed of Standing Offer, the Supplier offers to provide theServices to Additional Agencies.

C. The Additional Agency wishes to acquire the Services from the Supplier fromtime to time on the same terms as the Original Deed of Standing Offer and this

Notice of Inclusion.

Defined Terms

Terms that are used in this Notice of Inclusion that are defined in the OriginalDeed of Standing Offer have the meaning given to them in the Original Deed ofStanding Offer.

Notice of Inclusion

The Additional Agency issues this Notice of Inclusion to the Supplier pursuantto clause 2.4 of the Original Deed of Standing Offer

Upon receipt of this Notice of Inclusion by the Service Provider (which theService Provider will confirm in writing) a separate Deed is created between the


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^contract title^

^date^

Additional Agency and the Service Provider which is on the same terms as theOriginal Deed of Standing Offer, as amended by:

a. Clause 2.4.3 of the Original Deed of Standing Offer; and

b. Attachment A to this Notice of Inclusion

SIGNED for and on behalf of [insertfull name of Additional Agency] by: )

)

Name and position of Signatory Signature

In the presence of:

Name of witness Signature of witness


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Attachment A to Notice of Inclusion

Schedule 1 of the Original Deed of Standing Offer is amended insofar as it isapplicable to the Deed between the Additional Agency and the Service Providerformed by this Notice of Inclusion:

Item 2 of Schedule 1 is replaced with the following:

Additional Agencys Representative and Address for Notices

Additional Agencys Representative:


Clause 3.1.3 of Schedule 2 is replaced with the following:

[The Additional Agency should specify its specific invoicing and payment requirements inthis section. If the invoice requirements are the same as the Original Deed of StandingOffer, the Additional Agency should delete this section]

Date post:	14-Apr-2018
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AEMI Panel - Deed of Standing Offer 2013

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