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Commonwealth of Australia as represented by [ Insert name of buyer] (‘buyer’) and [ Insert name of seller] (‘seller’) [ Insert Name of Contract] Version: 1.0 Date Created: 27 February 2018
Transcript
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Commonwealth of Australia as represented by [Insert name of buyer]

(‘buyer’)

and

[Insert name of seller]

(‘seller’)

[Insert Name of Contract]

Version: 1.0Date Created: 27 February 2018

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Contents

Contract terms........................................................................................................................1

Contract Framework and Governance..................................................................................2

1. Purpose, interpretation and technical contract issues.............................................2

1.1 Defined terms....................................................................................................................2

1.2 Interpretation..................................................................................................................... 2

1.3 Cooperation and collaboration..........................................................................................3

1.4 Access by other agencies.................................................................................................4

1.5 Execution and performance warranty................................................................................4

1.6 Additional warranty if seller is a trustee.............................................................................4

1.7 No agency......................................................................................................................... 5

1.8 Assignment and novation..................................................................................................5

1.9 Severability....................................................................................................................... 5

1.10 Entire agreement...........................................................................................................6

1.11 Waiver........................................................................................................................... 6

1.12 Governing law and jurisdiction.......................................................................................6

1.13 Counterparts.................................................................................................................. 6

2. Contract term................................................................................................................6

3. Contract governance....................................................................................................7

3.1 Contract representatives...................................................................................................7

3.2 Notices.............................................................................................................................. 7

3.3 Meetings........................................................................................................................... 8

3.4 Reporting by seller............................................................................................................9

3.5 Risk management...........................................................................................................10

3.6 Announcements..............................................................................................................10

3.7 Access and audit (including auditing against standards).................................................11

3.8 Freedom of Information...................................................................................................13

3.9 Conflicts of interest..........................................................................................................13

3.10 Problem resolution.......................................................................................................13

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3.11 Compliance with laws..................................................................................................16

4. Personnel....................................................................................................................16

4.1 General personnel requirements.....................................................................................16

4.2 Specified personnel.........................................................................................................16

4.3 Subcontracting................................................................................................................18

4.4 Conduct of personnel......................................................................................................19

4.5 Security clearances.........................................................................................................20

4.6 Confidentiality deeds.......................................................................................................21

4.7 Work health and safety...................................................................................................21

4.8 Workplace gender equity................................................................................................22

4.9 Indigenous procurement policy.......................................................................................22

Delivery and Payment...........................................................................................................24

5. Delivery of products...................................................................................................24

5.1 Overview......................................................................................................................... 24

5.2 Base software supply......................................................................................................24

5.3 Hardware supply.............................................................................................................26

6. Delivery of services....................................................................................................27

6.1 Overview......................................................................................................................... 27

6.2 System implementation services.....................................................................................28

6.3 Software support services...............................................................................................30

6.4 Hardware support services.............................................................................................33

6.5 Managed services...........................................................................................................35

6.6 Consultancy services......................................................................................................36

6.7 Resource augmentation services....................................................................................37

6.8 Training services.............................................................................................................37

7. General delivery requirements and warranties.......................................................38

7.1 Complying with requirements and timeframes................................................................38

7.2 Project plan..................................................................................................................... 39

7.3 Design............................................................................................................................. 40

7.4 Seller provided facilities..................................................................................................40

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7.5 Documentation................................................................................................................41

7.6 Knowledge transfer and other assistance.......................................................................41

7.7 Transition-in.................................................................................................................... 41

7.8 General warranties..........................................................................................................42

7.9 Specific product warranties.............................................................................................43

7.10 Specific service warranties..........................................................................................43

7.11 Third party warranties..................................................................................................43

7.12 Harmful code...............................................................................................................44

7.13 Escrow......................................................................................................................... 45

8. Acceptance..................................................................................................................46

8.1 Acceptance process........................................................................................................46

8.2 Acceptance test plan.......................................................................................................48

9. Intellectual property and moral rights......................................................................49

9.1 Overview......................................................................................................................... 49

9.2 Intellectual property rights in software (and associated materials)..................................49

9.3 Intellectual property rights in all other contract material..................................................50

9.4 IP warranty...................................................................................................................... 51

9.5 Infringement claims.........................................................................................................51

9.6 Moral rights..................................................................................................................... 52

10. Buyer assistance to seller.........................................................................................52

10.1 Access to buyer material.............................................................................................52

10.2 Access to buyer personnel..........................................................................................52

10.3 Use of buyer facilities..................................................................................................53

10.4 Access to buyer facilities.............................................................................................53

10.5 Site specification and preparation................................................................................53

11. Charges and payment................................................................................................54

11.1 Charges....................................................................................................................... 54

11.2 Invoices....................................................................................................................... 54

11.3 Payment...................................................................................................................... 54

11.4 Service Rebates..........................................................................................................55

11.5 GST and other taxes...................................................................................................55

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11.6 Maximum charges payable..........................................................................................56

11.7 Late payment of invoices.............................................................................................56

11.8 Right to recover money...............................................................................................57

Contract Management and Performance............................................................................58

12. Information management...........................................................................................58

12.1 Privacy......................................................................................................................... 58

12.2 Confidentiality..............................................................................................................59

12.3 Buyer’s data................................................................................................................. 60

12.4 Records....................................................................................................................... 62

12.5 Transferring data off-shore..........................................................................................62

13. Security........................................................................................................................62

13.1 General requirements..................................................................................................62

13.2 Physical security..........................................................................................................64

13.3 Cyber security..............................................................................................................64

13.4 Information security.....................................................................................................65

14. Liability........................................................................................................................65

14.1 Liability........................................................................................................................ 65

14.2 Limitations of liability....................................................................................................66

14.3 Indemnities.................................................................................................................. 67

14.4 Insurance..................................................................................................................... 69

14.5 Guarantees and undertakings.....................................................................................70

15. Management of performance issues........................................................................71

15.1 Defects........................................................................................................................ 71

15.2 Delay........................................................................................................................... 72

15.3 Liquidated damages....................................................................................................73

15.4 Extensions of time and delay costs.............................................................................74

16. Changing and ending the contract...........................................................................75

16.1 Variation...................................................................................................................... 75

16.2 Buyer directions...........................................................................................................76

16.3 Pricing contract variations...........................................................................................76

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16.4 Termination and reduction for convenience.................................................................77

16.5 Termination by buyer for default..................................................................................78

16.6 Termination by seller for default..................................................................................79

16.7 Consequences of termination......................................................................................81

16.8 Transition-out plan.......................................................................................................81

16.9 General termination assistance...................................................................................82

Schedule A – Glossary......................................................................................................85

Schedule B – Contract Details..........................................................................................95

Schedule C – Requirements...........................................................................................100

Schedule D – Form of Acceptance Test Plan...............................................................109

Schedule E – Form of Acceptance Certificate..............................................................111

Schedule F – Project Plan...............................................................................................112

Schedule G – Charges.....................................................................................................113

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Contract termsDate

Buyer

Name: The Commonwealth of Australia represented by [insert agency name]

ABN: [insert buyer’s ABN]

Address: [insert buyer’s address]

Short form name: buyer

Seller

Name: [insert seller’s full legal name]

ABN: [insert seller’s ABN]

Address: [insert seller’s address]

Short form name: seller

buyer and seller agree as follows.

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Contract Framework and Governance

1. Purpose, interpretation and technical contract issues

1.1 Defined terms

1.1.1 Words in bold italics have the meaning given in Schedule A.

1.2 Interpretation

1.2.1 In this contract, unless otherwise required by the context:

a) words importing any gender include other genders;

b) words in the singular include the plural and vice versa;

c) where a word or phrase is given a particular meaning in Schedule A,

other parts of speech and grammatical forms of that word or phrase

have a corresponding meaning;

d) a reference to a clause or a Schedule is to a clause of, or schedule to,

this contract;

e) a reference to this contract includes all Schedules and is to the

contract as amended;

f) if this contract requires an obligation to be performed on a day that is

not a business day, it may be performed on the next day that is a

business day;

g) notes in the contract form part of the contract;

h) “person” includes an individual, agency, a company, a partnership and

an unincorporated organisation;

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i) “and/or” means either or both;

j) “relating to” and “relates to” are intended to have a broad meaning and

include “in connection with” and “arising out of”;

k) ‘document” includes an electronic record; and

l) “$” means Australian dollars.

1.2.2 If there is a direct inconsistency between the documents forming this

contract, a clause or Schedule higher in the following list prevails over a

clause or Schedule lower in the list to the extent of the inconsistency:

a) Schedule B;

b) clauses 1 to 16 and Schedule A;

c) Schedule C, Schedule D or Schedule G;

d) other Schedules.

1.3 Cooperation and collaboration

1.3.1 When performing their respective obligations under this contract, the

parties must act collaboratively and cooperatively with each other to

achieve buyer’s objectives and endeavour to solve any issues or problems

as quickly and as cost effectively as possible.

1.3.2 When exercising any discretion or power under this contract, a party must

act honestly, reasonably and in good faith. The obligation to act in good faith

does not prevent a party from acting to further its legitimate commercial

interests.

1.3.3 seller must work collaboratively and cooperatively with other organisations

providing services to buyer, including by sharing any relevant information

that is not confidential information.

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1.4 Access by other agencies

1.4.1 This clause 1.4 applies unless Item 1 of Schedule B provides that it does

not apply.

1.4.2 An agency (other than buyer) may seek to purchase products and/or

services from seller on terms substantially the same as this contract, by

sending an order substantially in the form of Schedule K to seller’s representative.

1.4.3 If an agency provides an order to seller under this clause 1.4, seller must

enter into a separate contract with the agency to supply the relevant

products and/or services on substantially the same terms as this contract

(including in relation to charges) unless otherwise agreed with the agency.

1.5 Execution and performance warranty

1.5.1 seller warrants that:

a) it has the power, authority, capacity, and that any necessary

contractual arrangements are in place, to execute this contract and to

lawfully perform and comply with it; and

b) all actions necessary for the authorisation, execution and performance

of this contract have been taken.

1.6 Additional warranty if seller is a trustee

1.6.1 This clause 1.6 only applies if Item 2 of Schedule B states that seller is

entering into this contract as the trustee of a trust.

1.6.2 seller enters into this contract both in its personal capacity and as trustee of

the trust named at Item 2 of Schedule B and must not resign as trustee

during the term.

1.6.3 seller warrants to buyer that:

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a) seller is the sole trustee of the trust named at Item 2 of Schedule B

and is authorised under the trust deed to enter into and perform this

contract;

b) seller entering into and performing this contract is not inconsistent with

the trust deed or any principle of equity; and

c) seller has a full right of indemnity from trust assets in relation to any

liability relating to this contract.

1.7 No agency

1.7.1 Other than as expressly provided in this contract, seller is not the agent of

buyer and must not represent itself as such.

1.7.2 Item 3 of Schedule B may authorise seller to purchase products or

services on behalf of buyer. If the Item includes such an authorisation,

seller must comply with any conditions set out in the Item.

1.8 Assignment and novation

1.8.1 seller may not assign the benefit of this contract, or take any action to

novate this contract or assign its obligations under it, without the prior

approval of buyer. buyer must not unreasonably withhold its consent to a

proposed assignment by seller of the benefits of this contract.

1.9 Severability

1.9.1 If a provision of this contract is unenforceable for any reason, the provision

may be severed from the contract and the remainder of the contract remains

enforceable.

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1.10 Entire agreement

1.10.1 This contract documents the entire agreement between the parties in

relation to the subject matter and supersedes any previous proposals,

representations or discussions.

1.11 Waiver

1.11.1 A delay by a party in exercising a right under this contract does not operate

as a waiver of that right or any other right under this contract (unless

otherwise expressly provided in this contract).

1.12 Governing law and jurisdiction

1.12.1 This contract is governed by the laws of the Australian Capital Territory and

the parties irrevocably submit to the non-exclusive jurisdiction of the courts

of that Territory for any matters relating to this contract.

1.13 Counterparts

1.13.1 This contract may be executed in any number of counterparts. All

counterparts constitute the same contract.

2. Contract term2.1.1 The term of this contract commences on the commencement date and

expires on the end date, unless terminated under clauses 16.4 to 16.6

(inclusive).

2.1.2 Subject to clause 2.1.3, buyer may notify seller at any time during the

term of this contract that the term is extended until the date specified in the

notice. buyer may give more than one notice under this clause 2.1.2.

2.1.3 The total length of all extensions under clause 2.1.2 may not exceed the

option period. If buyer issues a notice under clause 2.1.2 that is

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inconsistent with this clause 2.1.3, the notice is taken to extend the contract

for the longest period that is consistent with this clause 2.1.3.

3. Contract governance

3.1 Contract representatives

3.1.1 The contract representative for each party has authority to represent the

party for all matters relating to this contract, including:

3.1.2 sending and receiving notices and day-to-day communications; and

3.1.3 exercising a party’s rights under the contract.

3.1.4 A party may change its contract representative and the contact details for

its contract representative by notice, without the need for a variation

under clause 16.1.

3.2 Notices

3.2.1 A communication from one party to the other party relating to this contract

must be:

a) in writing, in hard-copy or by email;

b) (in the case of a hard-copy communication) signed by, or sent by (in

the case of an email communication), the sending party’s contract representative;

c) addressed to the other party’s contract representative;

d) in the case of a hard-copy communication, sent by express mail or

courier or hand-delivered to the receiving party’s contract representative address in Item 7 of Schedule B (or, if the address

has been changed under clause 3.1.4, that changed address); and

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e) in the case of an email communication, sent by email to the receiving

party’s contract representative address in Item 7 of Schedule B (or,

if the email address has been changed under clause 3.1.4, that

changed email address).

3.2.2 A notice given in hard-copy is taken to be received when it is delivered by

hand or courier or, if it is posted, 3 business days after the date of posting

(if posted in Australia) or 10 business days after the date of posting (if

posted outside Australia).

3.2.3 A notice given by email is taken to be received when it reaches the

receiving party’s email server, unless the sending party receives an error

message indicating that the receiving party’s contract representative has

not received the message.

3.3 Meetings

3.3.1 During the term as reasonably requested by buyer in a notice:

a) seller’s representative must meet with buyer’s representative at a

location in Australia specified by buyer (at no additional cost to buyer)

to discuss seller’s performance of this contract and any other matter

relating to this contract; and

b) not exceeding 4 times in any calendar year, a senior executive of

seller with responsibility for seller’s performance of this contract must

meet with a senior executive of buyer at a location in Australia

specified by buyer (at no additional cost to buyer) to discuss seller’s

performance of this contract and any other matter relating to this

contract.

3.3.2 If requirements for meetings are specified in Item 8 of Schedule B, in

addition to the obligations in clauses 3.3.1, seller personnel must meet

with buyer personnel as required by that Item.

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3.4 Reporting by seller

3.4.1 During the term as reasonably requested by buyer in a notice, seller must

provide written reports on seller’s performance of its obligations under this

contract. buyer may request that such reports include information on:

seller’s past performance under the contract; activities preparatory to

seller’s future performance; and risks and issues associated with seller’s

performance. seller must comply with buyer’s reasonable directions in a

notice regarding the format, content and timing of a report requested under

this clause 3.4.1 and such reports must be provided at no additional cost to

buyer.

3.4.2 seller must comply with reporting requirements set out in Schedule C

and/or Schedule F.

3.4.3 seller must notify buyer within 3 business days if any of the following

occur:

a) seller is unable to pay all its debts when they become due; 

b) if seller is a company, seller is under any form of external

administrations under the Corporations Act 2001 (Cth) or an equivalent

appointment is made under other legislation;

c) if seller is a partnership, the partnership is dissolved;

d) there is a material change to seller’s business (including as a result of

a restructure, divestiture of business or sale of shares) that adversely

affects the capacity of seller to perform its obligations under this

contract;

e) seller or any of seller’s personnel is convicted of a criminal offence,

investigated by a government agency for alleged fraudulent behaviour,

is subject to any claim or suit for alleged fraudulent behaviour or

makes an admission of fraudulent behaviour (whether or not the

fraudulent behaviour relates to this contract).

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3.5 Risk management

3.5.1 seller must identify and manage any risks and issues associated with the

performance of its obligations under this contract, including in relation to the

introduction of harmful code into buyer’s systems, the risk of loss or

corruption of buyer’s data and of delay.

3.5.2 If requested by buyer in a notice, within 10 business days, seller must

prepare and provide to buyer for approval a risk management plan

(prepared in accordance with ISO 31000:2018, and at no additional cost to

buyer) that identifies risks and issues associated with the performance of

seller’s obligations under this contract, with appropriate risk mitigation

treatments. If buyer does not approve the risk management plan, it may by

notice give reasonable directions to seller to modify the risk management

plan. seller must comply with such directions and, within 5 business days,

resubmit the risk management plan to buyer for approval under this clause

3.5.2.

3.5.3 If buyer approves a risk management plan submitted under clause 3.5.2,

seller must:

a) perform this contract in accordance with the current risk management

plan approved by buyer (including by undertaking all treatments set

out in the risk management plan); and

b) keep the risk management plan up-to-date during the term, by

including new or changed risks and issues (and appropriate risk

mitigation treatments) and submitting the updated plan to buyer for

approval under clause 3.5.2.

3.6 Announcements

3.6.1 Subject to clause 3.6.2 and 3.6.3, except as required by law or the rules of

a securities exchange, or with the consent of buyer in a notice, seller must

not make any public announcement about the award, performance or

termination of this contract.

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3.6.2 If buyer or another agency makes a public announcement relating to this

contract, seller may subsequently make a public announcement on the

same subject matter in a similar level of detail.

3.6.3 Unless Item 9 of Schedule B provides otherwise, seller may include

buyer’s name and a short factual description of this contract in a list of

reference projects, proposals to third parties and its annual report.

3.7 Access and audit (including auditing against standards)

3.7.1 Subject to this clause 3.7, seller must, on buyer’s request in a notice,

provide reasonable access to seller’s premises, seller’s records and/or seller’s personnel to enable buyer and/or an accountability body to

audit seller in relation to seller’s compliance with its obligations under this

contract and/or in relation to the accuracy of any information provided by

seller to buyer in relation to this contract.

3.7.2 buyer may notify seller under this clause 3.7.2 if it or an accountability body wishes to audit seller in relation to this contract. In the notice, buyer must set out:

a) the scope of the audit;

b) the name and title of the individuals who will conduct the audit;

c) the access to seller’s premises, seller’s records and/or seller’s personnel required as part of the audit; and

d) the proposed timing of the audit.

3.7.3 Subject to clause 3.7.4, if buyer gives seller a notice under clause 3.7.2,

within 5 business days, seller must notify buyer that:

a) it agrees to the proposed arrangements for the audit (in which case it

must then provide the access requested in buyer’s notice under

clause 3.7.2); or

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b) it agrees to the proposed arrangements for the audit other than in

relation to timing (in which case seller must, acting reasonably,

nominate alternative timing for the audit in a notice to buyer).

3.7.4 If seller gives buyer a notice under clause b), buyer may either:

a) notify seller that it agrees with seller’s proposed timing (in which

case seller must then provide the access requested in buyer’s notice

under clause 3.7.2, but with the agreed revised timing); or

b) propose alternative timing (in which case buyer must give seller a

revised notice under clause 3.7.2).

3.7.5 seller is not obliged under this clause 3.7 to provide buyer or an

accountability body with access to the confidential information of seller’s

other customers or other confidential information (including costing

information) that does not relate to the audit.

3.7.6 If an accountability body is proposing to undertake an audit under this

clause 3.7, and the individuals from the accountability body are not bound

by statutory confidentiality obligations in relation to the audit, at seller’s

request in a notice, the individuals from the accountability body must

provide reasonable confidentiality undertakings to seller in relation to

seller’s confidential information accessed during the audit. However, these

confidentiality undertakings must permit the individuals to assist in carrying

out the functions of the accountability body (including, where applicable,

the publication of reports) and to provide information to buyer in relation to

seller’s compliance with its obligations under this contract.

3.7.7 When conducting an audit under this clause 3.7, buyer or an

accountability body must take reasonable steps to minimise disruption to

seller’s business operations.

3.7.8 The parties must meet their own costs of complying with this clause 3.7.

3.7.9 This clause survives the termination or expiry of this contract for a period of

2 years.

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3.8 Freedom of Information

3.8.1 This clause 3.8 applies if seller provides services under this contract to a

person who is not an agency.

3.8.2 If buyer receives a request for a document under the Freedom of Information Act 1982 (Cth) and:

a) the document was created by or is in the possession of seller (including seller’s personnel); and

b) the document relates to, or was created in, the performance of this

contract (other than the entry into this contract),

then, if requested to do so by buyer in a notice, seller must provide a copy

of the document to buyer at no additional cost to buyer.

3.9 Conflicts of interest

3.9.1 seller warrants to buyer on the commencement of this contract and

continuously during the term that neither it nor any seller’s personnel have

a conflict of interest in relation to any aspect of the performance of this

contract that has not been disclosed to buyer in a notice.

3.9.2 If seller notifies buyer of a conflict of interest in relation to the

performance of this contract, seller must comply with any reasonable

direction given by buyer in a notice to manage or mitigate that conflict of interest at no additional cost to buyer.

3.10 Problem resolution

3.10.1 If a party considers that an issue has arisen, it must notify the other party

within 5 business days describing the issue and explaining its position in

relation to the issue.

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3.10.2 If a party receives a notice under clause 3.10.1, within 5 business days

the party must notify the other party explaining its position in relation to the

issue.

3.10.3 If a notice has been given under clause 3.10.2 and a party considers that

the issue remains unresolved, within 5 business days that party must

notify the other party that a meeting is required to discuss and attempt to

resolve the issue.

3.10.4 If a notice is given under clause 3.10.3 in relation to an issue, both parties

must ensure that their contract representatives meet to discuss and

genuinely attempt to resolve the issue within 5 business days. The time

and location of such meeting is to be agreed between the contract representatives but, failing agreement, the meeting will be at 11.00am on

the fifth business day after the notice is given under clause 3.10.3, at

buyer’s address.

3.10.5 If either party considers that an issue discussed at a meeting held under

clause 3.10.4 remains unresolved after the meeting, that party may give a

notice to the other party requiring the issue to be discussed by the senior

executives of the parties.

3.10.6 If a notice is given under clause 3.10.5, each party must ensure that one or

more of its senior executives who have responsibilities in relation to this

contract meet with senior executives of the other party who have

responsibilities in relation to this contract within 15 business days of the

notice (either as part of a scheduled governance meeting or at a specially

convened meeting) to discuss and genuinely attempt to resolve the issue.

The time and location of such meeting is to be agreed between the senior

executives of the parties but, failing agreement, the meeting will be at

11.00am on the fifteenth business day after the notice is given under

clause 3.10.5, at buyer’s address.

3.10.7 If either party considers that an issue discussed at a meeting held under

clause 3.10.6 remains unresolved after that meeting, or that the other party

has not complied with the process in clauses 3.10.1 to clause 3.10.6 in

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relation to an issue, that party may notify the other party that the issue

has become a dispute.

3.10.8 If Item 10 of Schedule B provides for any dispute to be referred to

mediation, if a party gives a notice under clause 3.10.7 in relation to a

dispute, the parties must refer the dispute to mediation in accordance with

the process set out in the Item.

3.10.9 If Item 11 of Schedule B provides for a category of disputes to be referred

to expert determination, if a party gives a notice under clause 3.10.7 in

relation to a dispute within that category, the parties must refer the

dispute to expert determination in accordance with the process set out in

the Item.

3.10.10 If both clause 3.10.8 and clause 3.10.9 apply to a dispute, the dispute

must be referred to mediation before the dispute is referred to expert

determination.

3.10.11 If neither clause 3.10.8 nor clause 3.10.9 applies to a dispute, the parties

must give genuine good faith consideration to whether mediation or expert

determination would be a suitable mechanism to attempt to resolve the

dispute. If both parties agree to use mediation or expert determination in

relation to a dispute, the parties must agree a suitable process and then

follow that process in relation to the dispute.

3.10.12 Neither party may commence legal proceedings in relation to an issue or a

dispute until all applicable requirements in clause 3.10.1 to clause 3.10.11

have been complied with in relation to the issue or dispute. However, this

clause 3.10.12 does not prevent a party seeking urgent interlocutory relief.

3.10.13 The parties must continue to perform this contract (including, in the case of

buyer, paying any undisputed charges that are due under this contract)

while the parties are complying with the requirements in clause 3.10.1 to

clause 3.10.11.

3.10.14 The parties must meet their own costs of complying with the requirements

in clause 3.10.1 to clause 3.10.11.

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3.11 Compliance with laws

3.11.1 seller must comply with law when performing its obligations under this

contract.

4. Personnel

4.1 General personnel requirements

4.1.1 seller must ensure that all of seller’s personnel:

a) are appropriately skilled and qualified to provide the services required

to be provided under this contract;

b) to the extent they are developing or using software, have appropriate

formal training on that software;

c) for seller’s personnel providing services in Australia or undertaking

any activity relating to this contract in Australia, have the right to work

in Australia under law; and

d) are required by employment contracts or other legally binding

arrangements to maintain the confidentiality of buyer’s confidential information.

4.2 Specified personnel

4.2.1 seller must take all measures within its reasonable control to ensure that

specified personnel are available on a consistent basis during the term to

provide services under this contract in the role specified in Item 12 of

Schedule B.

4.2.2 seller must immediately notify buyer if, during the term, any specified personnel become:

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a) permanently unavailable to provide services under this contract (for

example, because of illness or resignation); or

b) unavailable to provide services under this contract during the term for

a period of more than the specified personnel unavailability period.

4.2.3 buyer may direct seller in a notice to replace any specified personnel who:

a) in buyer’s opinion are not a fit and proper person to provide services

to buyer;

b) in buyer’s opinion (acting reasonably), do not meet the requirements

for seller’s personnel in clause 4.1.1;

c) do not have a suitable security clearance or other clearance required

under clause 4.5;

d) do not sign and deliver a confidentiality deed that is required under

clause 4.6; and/or

e) have acted, or have failed to act, in a manner required under clause

4.4.

4.2.4 Within 10 business days of giving buyer a notice under clause 4.2.2 or

receiving a notice from buyer under clause 4.2.3, seller must notify buyer proposing replacement specified personnel that are at least as

experienced and qualified to provide services under this contract as the

specified personnel being replaced.

4.2.5 If buyer consents to the replacement specified personnel proposed by

seller under clause 4.2.4, it will notify seller of its consent and Item 12 of

Schedule B is taken to be amended by substituting the names of the

replacement specified personnel for the replaced specified personnel, without any requirement for a formal contract variation under clause 16.1.

4.2.6 If buyer (acting reasonably) does not consent to the replacement specified personnel proposed by seller under clause 4.2.4, it will notify seller of this

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decision and seller must then notify buyer within 10 business days

proposing alternative replacement specified personnel that are at least as

experienced and qualified to provide services under this contract as the

specified personnel being replaced. Clause 4.2.5 and this clause 4.2.6

apply to seller’s nomination of alternative replacement specified personnel.

4.3 Subcontracting

4.3.1 seller must ensure that the subcontractors (if any) named in Item 16 of

Schedule B have the role specified in the Item in relation to the delivery of

products and services. If seller wishes to remove or replace any such

subcontractor, it must notify buyer and seek buyer’s prior consent. The

notice seeking buyer’s consent must explain the circumstances of the

proposed removal or replacement.

4.3.2 Subject to this clause 4.3, seller must not enter a subcontract without the

prior consent of buyer in a notice. When seeking consent, seller must

provide full details of the proposed subcontractor, including whether it is an

Indigenous enterprise.

4.3.3 buyer must not unreasonably withhold its consent under clause 4.3.1 or

4.3.2.

4.3.4 seller must not enter into a subcontract with a person that:

a) has been named by the Director of the Workplace Gender Equality

Agency as an employer who is not complying with the WGEA; and/or

b) has a judicial decision against it (not including decisions under appeal)

relating to employee entitlements in respect of which it has not paid the

judgement amount.

4.3.5 seller must not enter a subcontract on terms that would permit the subcontractor to do, or fail to do, something that, if done or not done by

seller, would be a breach of this contract. seller must also ensure that each

subcontract can be terminated for convenience on similar terms to this

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contract. If requested by buyer in a notice, seller must provide buyer with

a copy of a subcontract to enable buyer to verify that seller has complied

with this clause 4.3.5.

4.3.6 seller warrants that it has informed all subcontractors that their

participation in performing this contract may be publicly disclosed.

4.3.7 seller is responsible for all acts or omissions of subcontractors, seller group companies and individual contractors in relation to this contract

(even if the subcontractor has been named in Item 16 of Schedule B or if

buyer has consented to the subcontractor).

4.3.8 buyer (acting reasonably) may by notice to seller direct the removal or

replacement of any subcontractor. seller must comply with a direction

under this clause 4.3.8.

4.4 Conduct of personnel

4.4.1 When seller’s personnel are on or near buyer’s premises in relation to

the performance of this contract, seller must:

a) ensure that those personnel comply with all policies and procedures

applicable to buyer’s employees and/or contractors that buyer has

notified to seller;

b) direct those personnel to demonstrate behaviour consistent with the

Australian Public Service Code of Conduct; and

c) ensure that those personnel comply with any reasonable direction

given by buyer in relation to conduct, health and safety, or security.

4.4.2 When seller’s personnel are accessing buyer’s systems, using any of

buyer’s equipment or accessing buyer’s confidential information, seller must ensure that those personnel comply with all policies and procedures

applicable to buyer’s employees and/or contractors that buyer has notified

to seller.

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4.5 Security clearances

4.5.1 If required by Item 19 of Schedule B, seller must ensure that seller’s personnel (or classes of seller’s personnel specified in that Item):

a) maintain security clearances specified in that Item throughout the

term; and/or

b) successfully undertake other vetting or suitability screening processes

that are specified in that Item.

4.5.2 buyer may notify seller that seller’s personnel (or classes of seller’s personnel) must maintain security clearances (at a level specified by buyer in the notice) before accessing any buyer’s confidential information. If

buyer gives such a notice, seller must ensure that any of seller’s personnel without the required security clearance do not access buyer’s confidential information.

4.5.3 buyer may notify seller that seller’s personnel (or classes of seller’s personnel) must undertake vetting or suitability screening processes

normally required by buyer for its employees and/or contractors. If buyer gives such a notice, seller must ensure that any of seller’s personnel without the required security clearance do not access buyer’s confidential information.

4.5.4 seller must use its best endeavours to ensure that all of seller’s personnel who have a security clearance promptly advise the agency granting the

clearance of any change to their personal circumstances that may be

relevant to the grant of the security clearance.

4.5.5 seller is responsible for the costs of seller’s personnel obtaining and

maintaining security clearances and undertaking other vetting or suitability

screening processes required under this clause 4.5.

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4.6 Confidentiality deeds

4.6.1 If requested by buyer in a notice, seller must ensure that all of seller’s personnel who have or may have access to buyer’s confidential information execute and deliver to buyer a confidentiality deed

substantially in the form of Schedule L (at no additional cost to buyer).

4.6.2 If buyer has made a request under clause 4.6.1, seller must ensure that

any of seller’s personnel who have not executed and delivered a deed in

accordance with clause 4.6.1 do not have any access to buyer’s confidential information.

4.7 Work health and safety

4.7.1 When delivering products and services under this contract, seller must:

a) ensure that the delivery is done in a manner that does not pose any

avoidable health or safety risk to seller’s personnel, buyer’s personnel or any other person;

b) identify all reasonably foreseeable hazards that could give rise to a risk

to health or safety;

c) ensure that risk assessments are conducted for risks to the health and

safety to seller’s personnel, buyer’s personnel and any other

person;

d) ensure that control measures are in place to mitigate identified risks to

health or safety;

e) consult, cooperate and coordinate activities in relation to health and

safety matters with other persons who have a health and safety duty in

relation to the activities; and

f) notify buyer (providing full details) and the relevant regulator if a

“notifiable event” (within the meaning of that term in the Work Health

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and Safety Act 2011 (Cth) or a corresponding State or Territory law)

occurs.

4.8 Workplace gender equity

4.8.1 This clause 4.8 applies if seller is or becomes a “relevant employer” within

the meaning of that term in WGEA.

4.8.2 seller must comply with its obligations under WGEA.

4.8.3 If seller becomes non-compliant with WGEA, it must:

a) immediately notify buyer of the non-compliance with WGEA;

b) become compliant with WGEA within 40 business days from the date

of non-compliance; and

c) notify buyer when it becomes compliant with WGEA.

4.8.4 On each anniversary of the commencement date during the term, seller must provide a notice to buyer that includes a letter from the Workplace

Gender Equality Agency confirming that seller is currently compliant with

WGEA.

4.9 Indigenous procurement policy

4.9.1 seller notes that it is Australian Government policy to stimulate Indigenous

entrepreneurship and business development, providing Indigenous

Australians with more opportunities to participate in the economy.

4.9.2 When delivering products and services under this contract, seller must

use reasonable endeavours to increase its purchasing from Indigenous enterprises (including by entering into subcontracts with Indigenous enterprises and using Indigenous enterprises in seller’s supply chain)

and its employment of Indigenous Australians.

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4.9.3 If requested by buyer in a notice, seller must provide a written report

(including appropriate evidence) to buyer demonstrating seller’s

compliance with this clause 4.9 at no additional cost to buyer.

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Delivery and Payment

5. Delivery of productsNote: This contract is not suitable for and does not apply in relation to the leasing of hardware or software (and in relation to software, only applies to software that is installed on buyer’s systems on buyer’s premises).

5.1 Overview

5.1.1 If seller is providing base software and/or hardware under this contract,

clause 5.2 applies to the provision of the base software and clause 5.3

applies to the provision of the hardware.

5.2 Base software supply

5.2.1 Application: Unless specified otherwise in Section 1 of Schedule C, the

licence terms specified in this clause 5.2 apply to all base software supplied under this contract.

5.2.2 Licence: Prior to delivering any base software to buyer, seller grants (or

will procure from a third party) to buyer a licence to use the base software:

a) for government purposes;

b) in accordance with the licence metrics; and

c) for the base software licence period,

and to assign the licence to another agency, on the same terms but at no

additional cost to buyer or the assignee, unless specified otherwise in

Section 1 of Schedule C.

5.2.3 Restrictions: buyer must:

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a) not make any changes to the source code for the base software or

otherwise attempt to derive the source code from object code (or allow

any other person it permits to use the base software to do either of

those things); and

b) use reasonable care and protection to prevent the unauthorised use,

copying, publication or dissemination of the base software.

5.2.4 Open source software: To the extent all or any part of the base software

is licensed under an open source software licence:

a) seller must seek buyer’s approval to incorporate the open source software prior to supplying the base software; and

b) if buyer gives its approval, the terms of that licence apply to that

open source software and prevail over the terms of this contract to

the extent of any inconsistency.

5.2.5 No click wrap terms: The terms of the base software licence granted

under clause 5.2.1 apply to the exclusion of any shrink-wrap, click-wrap,

standard end user licence agreement (EULA) or similar seller terms

normally applying to the base software. If user ‘acceptance’ of such terms

is necessary in order to install or use the base software, such acceptance

is deemed to be acceptance of the terms of this base software licence, to

the exclusion of all others.

5.2.6 Period of licence: If no base software licence period is set out in Section

1 of Schedule C, the base software licence period is perpetual.

5.2.7 Audit: seller may, not more than once per calendar year, request that

buyer provide a written statement confirming that to the best of its

knowledge following reasonable enquiry, buyer’s use of the base software

is consistent with the terms of the licence for base software. buyer must

comply with such a request within a reasonable period following receipt of

the request.

5.2.8 Rebranding: If the base software (or any part of the base software) is

bundled, unbundled, rebranded or renamed (rebranding), buyer’s rights

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under this contract will continue despite any rebranding without additional

charge.

5.2.9 Buyer’s data: The output of the base software is buyer’s data and is

owned by buyer. seller must not without buyer’s prior written consent

remove buyer’s data or allow buyer’s data to be removed from buyer’s premises.

5.2.10 Change of designated equipment: If Section 1 of Schedule C specifies

that use of the base software is restricted to a particular processor, buyer may:

a) subject to the written consent of seller (which must not be

unreasonably withheld), transfer the base software to an alternative

processor of substantially the same capacity and performance; and

b) use the base software on any back-up hardware while the specified

hardware is for any reason temporarily unavailable.

5.2.11 Termination of licence: Within 30 days after the end of the base software licence period, buyer will destroy or return to seller all copies of the base software and all related documentation (other than retaining one copy for

archival purposes subject to any restrictions specified in Section 1of

Schedule C).

5.3 Hardware supply

5.3.1 seller must supply the hardware to buyer at the delivery location and by

the delivery time specified in Section 2 of Schedule C.

5.3.2 Title in each item, unit or module for hardware will transfer to buyer immediately upon acceptance or full payment of the hardware by buyer, as specified in Section 1 of Schedule C. seller accepts risk for loss of or

damage to the hardware from the time buyer takes delivery of the

hardware, except to the extent the loss or damage is caused or contributed

to by seller during delivery or installation services.

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5.3.3 seller must:

a) comply with ISO 14024 or ISO 140021 at the level of Electronic

Product Environmental Assessment Tool (EPEAT) “silver” rating or

equivalent as a minimum standard for relevant hardware being

supplied under this contract;

b) comply with the minimum ENERGY STAR® rating for any relevant

hardware supplied under this contract (refer

www.energyrating.gov.au);

c) where no other disposal arrangements are specified for equipment

supplied under this contract:

(i) for ICT equipment covered by the National Television and

Computer Recycling Scheme, seller must take back the supplied

equipment at end-of-use for re-use or resource recovery; and

(ii) for mobile devices/toner cartridges, seller must either take back

the devices/cartridges at end-of-use for re-use or resource

recovery or dispose of through a suitable recycling program.

5.3.4 Terms used in clause 5.3.3 that are not defined in this contract, have the

meaning attributed to them in the ICT sustainability plan.

6. Delivery of services

6.1 Overview

6.1.1 seller is required to provide one or more of the following services, as

selected in Schedule C:

a) system implementation services;

b) software support services;

c) hardware support services;

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d) managed services;

e) consultancy services;

f) resource augmentation services;

g) training services.

6.1.2 For each of the above services selected in Schedule C, the terms for that

service set out in this clause 6 apply, unless expressly specified otherwise

in Schedule C.

6.2 System implementation services

Note: If seller is required to deliver any of the services listed in this clause 6.2

(except if only installation services are required), then seller is required to deliver a

system. That system needs to meet the specifications for the system specified in

Schedule C. In these circumstances, this clause 6.2 will apply and the products and

services required to deliver the system must be delivered by seller in accordance

with the applicable terms in clauses 5 and 6.

6.2.1 If ‘system implementation services’ is selected in Schedule C, this clause

6.2 applies.

6.2.2 system implementation services will include any one or more of the

following services:

a) base software configuration services;

b) base software customisation services;

c) new software development services;

d) integration services for software and/or hardware;

e) installation services for software and/or hardware.

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6.2.3 The system will comprise the hardware, software and other components

specified in Section 3 of Schedule C.

6.2.4 seller must:

a) provide any of the system implementation services listed in clause

6.2.2 required to meet the specifications for the system;

b) provide any of the system implementation services in accordance

with the terms for those services specified in this clause 6.2 and the

requirements in Section 3 of Schedule C;

c) prepare, submit and obtain buyer’s approval of a project plan in

accordance with clause 7.2 and Section 10 of Schedule C; and

d) prepare, submit and obtain buyer’s approval of a design for the

system in accordance with clause 7.3 and Section 10 of Schedule C.

6.2.5 In addition to and without limiting any other warranties provided under or

in relation to this contract, seller warrants that for a period of 90 days

from acceptance (or such other period as is specified in Section 10 of

Schedule C):

a) the system is free from defects; and

b) all components of the system will interact with each other and other

components outside the system in accordance with the

specifications.

6.2.6 In relation to developed software, seller must:

a) concurrently develop the software and supply user documentation as

specified in Section 3 of Schedule C;

b) provide buyer a copy of the developed software package and

relevant existing material at the acceptance testing stage or within

14 days of a request from buyer in a notice;

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c) provide buyer up-to-date technical and operator associated documentation containing sufficient information to enable buyer to

make full use of the developed software and that, at the time of

delivery, meets the requirements for documentation specified in

clause 7.5.2; and

d) ensure the developed software is written and documented in a way

which would enable future modification by a competent developer

without further reference to seller.

6.2.7 Where the intellectual property rights in the developed software and other

developed software package will be owned by buyer (as specified in Item 23

of Schedule B), seller must deliver the source code to buyer in accordance

with Section 3 of Schedule C.

6.2.8 All developments made by buyer to the developed software remain the

property of buyer or seller, as specified in Section 3 of Schedule C.

6.2.9 buyer may not use the developed software in production prior to acceptance unless specified otherwise in Section 3 of Schedule C.

6.3 Software support services

6.3.1 If ‘software support services’ is selected in Schedule C, this clause 6.3

will apply.

6.3.2 seller must provide the software support services specified in this clause

6.4 and Section 4 of Schedule C during the software support period.

6.3.3 Unless specified otherwise in Section 4 of Schedule C, seller must, at a

minimum:

a) make available to buyer updates and new releases for the software

on the terms set out in Schedule C and subject to the following

conditions:

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(i) buyer has no obligation to install an update or new release made

available by seller;

(ii) if buyer rejects the offer of an update or new release, seller must

continue to maintain the version of the software which buyer is

using until the expiry of 18 months (or alternative period specified

in Schedule C) from the date which the rejected update of new release was formally offered by seller to buyer;

(iii) the charges for updates and new releases will be specified in

Schedule G, however seller will provide any update or new release at no cost where seller makes updates or new releases

generally available to other government customers under similar

circumstances at no cost; and

(iv) the terms of the base software licence in clause 5.2 apply to all

updates and new releases.

b) fix defects in the software in accordance with clause 6.3.4 below;

c) ensure the software continues to operate in accordance with the specifications specified in Section 4 of Schedule C;

d) provide a helpdesk service in accordance with the requirements in

Section 4 of Schedule C;

e) ensure all documentation for the software specified or referred to in

Section 4 of Schedule C remains up to date at all times; and

f) provide the software support services outlined in this clause 6.3 to

meet the services levels specified in Section 4 of Schedule C.

6.3.4 If buyer notifies seller of a defect during the software support period, seller must, in accordance with the service level response times specified

in Schedule C provide either defect correction information or other

appropriate repair services required to ensure the defective software returns to operating at full functionality and compliance with the

specifications.

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6.3.5 If seller is unable to rectify a defect in accordance with clause 6.3.4, seller must:

a) replace the defective software with alternative software that meets

the specifications and the other software requirements in Section 4

of Schedule C and pay for the costs incurred by buyer as a result of

the replacement; or

b) if replacement is not possible, refund to buyer the charges for the

defective software and pay the costs incurred by buyer to remove the

software; and

in either case, to the extent practical, implement measures to minimise

disruption to buyer’s operations while the software is being replaced or

removed.

6.3.6 Any software defect correction services required during the warranty period for the software will be performed by seller at no charge.

6.3.7 Unless specified otherwise in Section 4 of Schedule C, the software support services do not include equipment maintenance or correction of

defects caused by:

a) operation of the software in contravention of buyer’s obligations

under the contract including user documentation provided by seller;

b) buyer’s failure to operate the software in accordance with the

specifications;

c) use by buyer of the software in an ICT environment other than

specified in the specifications; or

d) the reproduction or adaptation of the software by buyer pursuant to

the Copyright Act 1968 (Cth) section 47E or 47F.

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6.4 Hardware support services

6.4.1 If ‘hardware support’ is selected in Schedule C, this clause 6.4 will apply.

6.4.2 seller must provide the hardware support services specified in this clause

6.4 and Section 5 of Schedule C during the hardware support period.

6.4.3 [preventative maintenance] seller must provide the preventative maintenance services:

a) specified in Section 5 of Schedule C;

b) only by prior arrangement with buyer;

c) at the times specified in Section 5 of Schedule C, or if no times are

specified in Section 5 of Schedule C, either at times:

(i) when the hardware is not operational; or

(ii) likely to cause the least possible disruption to buyer’s business,

and buyer will cooperate with seller by providing access and facilities as

reasonably necessary to enable seller to provide the preventative maintenance services to the required standard.

6.4.4 [defect correction] seller must rectify defects in the hardware in

accordance with this clause 6.4.4 and Section 5 of Schedule C. If buyer notifies seller of a defect during the hardware support period, seller must, in accordance with the service level response times specified in

Section 5 of Schedule C, repair the defective hardware so it is in good

working order and compliant with the specifications.

6.4.5 If seller is unable to rectify a defect in accordance with clause 6.4.4, seller must:

a) replace the defective hardware with alternative hardware that is in

good working order and meets the specifications and other

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hardware requirements specified in Section 5 of Schedule C and pay

for the costs incurred by buyer as a result of the replacement; or

b) if replacement is not possible, refund to buyer the charges for the

defective hardware and pay the costs incurred by buyer to remove

the hardware; and

in either case, to the extent practical, implement measures to minimise

disruption to buyer’s operations while the hardware is being replaced or

removed.

6.4.6 Any hardware defect correction services required during the warranty period will be performed by seller at no charge.

6.4.7 The charges for all hardware support services include all costs in relation

to the performance of the services including any packing, freighting, repair,

modification, disassembly and reassembly costs.

6.4.8 [storage of seller materials] Unless stated otherwise in Section 5 of

Schedule C, seller may store manuals, tools and test equipment on site as

required for the purposes of the contract. buyer agrees not to use any such

materials without seller’s consent.

6.4.9 [maintenance records] If specified in Section 5 of Schedule C, seller will

keep full records of its hardware support services and will provide copies

of those records to buyer within 4 days of request or other period specified

in Section 5 of Schedule C.

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6.5 Managed services

Note: This clause 6.5 contains some basic terms and conditions for managed

services. Managed service arrangements are complex and additional terms and

conditions will need to be included in Schedule C to reflect the specific managed services required by buyer and to manage the risks of these services.

6.5.1 If ‘managed services’ is selected in Schedule C, this clause 6.5 will apply.

6.5.2 seller must provide the managed services specified in Section 6 of

Schedule C in accordance with the specifications and service levels

specified or referred to in that Schedule.

6.5.3 seller must provide the managed services in accordance with any

additional terms and conditions specified in Section 6 of Schedule C.

6.5.4 The specifications will be deemed to include, and seller will be deemed to

have knowledge of, information seller could reasonable have obtained

during due diligence which it had the opportunity to conduct prior to the

managed services start date, whether seller conducted due diligence or

not.

6.5.5 If requested by buyer in a notice, within 10 business days, seller must

prepare and provide to buyer for approval a cyber security plan at no

additional cost to buyer that provides details of seller’s security measures

in place to reduce the risk of cyber attack on seller’s systems. If buyer does not approve the plan, it may by notice give reasonable directions to

seller to modify the plan. seller must comply with such directions and,

within 5 business days resubmit the plan to buyer for approval under this

clause 3.5.2. seller must

6.5.6 seller must comply with any cyber security plan approved by buyer and

keep the plan up-to-date during the term and submitting the updated plan to

buyer for approval under clause 6.5.5.

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6.6 Consultancy services

6.6.1 If ‘consultancy services’ is selected in Schedule C, this clause 6.6 will

apply.

6.6.2 seller must, provide the consultancy services specified in Section 7 of

Schedule C from the date and in accordance with the applicable service levels specified in that Schedule.

6.6.3 To the extent relevant, Section 7 of Schedule C will specify:

a) requirements for the consultancy services including any

deliverables and service levels; and

b) whether a project plan is required under clause 7.2.

6.6.4 seller will:

a) manage all aspects of the delivery of the consultancy services;

b) take timely and corrective action where the consultancy services are

not performed in accordance with the contract, including in accordance

with clause 15.1;

c) record action taken to correct any defects in the consultancy services; and

d) ensure the timely development and provision of corresponding

documentation or appropriate electronic records (if any) specified in

Section 7 of Schedule C.

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6.7 Resource augmentation services

6.7.1 If ‘resource augmentation services’ is selected in Schedule C, this clause

6.7 will apply.

6.7.2 seller must provide the resource augmentation services specified in

Section 8 of Schedule C from the date and in accordance with the

applicable service levels specified in that Schedule.

6.7.3 To the extent relevant, Section 8 of Schedule C will specify:

a) requirements for the resource augmentation services; and

b) details of buyer’s organisational and service management

arrangements (including requirements for how seller’s personnel will

fit into buyer’s organisational structure and which buyer personnel will direct and/or supervise them).

6.7.4 seller must:

a) ensure that its personnel have the skills, experience and qualifications

specified in Section 8 of Schedule C; and

b) ensure its personnel perform the services in accordance with buyer’s

directions.

6.8 Training services

6.8.1 If ‘training services’ is selected in Schedule C, this clause 6.8 will apply.

6.8.2 seller must provide the training services (including training

documentation) specified in Section 9 of Schedule C in accordance with

the specifications and service levels specified or referred to in that

Schedule.

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7. General delivery requirements and warranties

7.1 Complying with requirements and timeframes

7.1.1 seller must ensure deliverables:

a) comply with the specifications and other requirements specified in

Schedule C;

b) meet the service levels specified in Schedule C;

c) are delivered in accordance with the delivery times;

d) achieve acceptance by the applicable due date;

e) comply with applicable Australian standards or, if there are no

applicable Australian standards, any applicable international

standards, including those specified in Schedule C; and

f) comply with any other standards specified in Schedule C.

7.1.2 seller is responsible for ensuring buyer is placed in a position to, and with

sufficient time to, perform buyer’s tasks required for successful

acceptance of a deliverable or achievement of a delivery milestone in

accordance with the requirements (including dates) specified in the contract.

7.1.3 seller will comply with reasonable directions given by buyer that are

consistent with the contract in relation to seller’s performance of its

obligations under the contract.

7.1.4 seller must:

a) be a signatory to the Australian Packaging Covenant or comply with

the requirements of the National Environment Protection (Used

Packaging Materials) Measure (unless exempt by legislation); and

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b) have an environmental management system aligned to the ISO

14001 standard or alternatively, implement business processes that

are aligned to the ISO 14001 standard within six months after the

commencement of this contract.

7.2 Project plan

7.2.1 If a project plan is required to be provided under clauses 5 or 6 or otherwise

selected in Schedule C, the following process will apply:

a) seller must prepare (or finalise) a project plan that sets out how seller will deliver the project including meet relevant contract obligations and

timeframes;

b) seller must submit to buyer for approval, and obtain buyer’s

approval, by the date specified in Schedule C; and

c) when seller submits the project plan for approval, buyer must

promptly (but in no longer than 10 business days) review the project

plan and either:

(i) approve the project plan; or

(ii) provide to seller details of any changes required to ensure the

project plan satisfies the requirements of, and is consistent with,

the contract.

7.2.2 seller must make any changes requested under clause c) and resubmit to

buyer for approval. The process in clause c) will the apply to the

resubmitted project plan.

7.2.3 The project plan, will, when approved by buyer, be included at Schedule F

(without the need for a variation under clause 16.1) and seller must comply

with the project plan.

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7.3 Design

7.3.1 When a design is required under clause 6.2, the following process will

apply:

a) seller must prepare a detailed design, submit to buyer for approval, and obtain buyer’s approval, by the date specified in Schedule C;

and

b) seller must ensure the design gives a technical explanation of how the

functions in the specifications will be met.

7.3.2 When seller submits the design for approval, buyer must promptly (but in

no longer than 10 business days) review the design and either:

a) approve it, if satisfied that it consistent with the contract and conforms

to the specifications for the system or that any departures from the

specifications are reasonable in the circumstances; or

b) provide to seller details of any changes required to ensure it is

consistent with the contract.

7.3.3 seller must make any changes requested under clause 7.3.2 and resubmit

to buyer for approval. The process in clause 7.3.2 will the apply to the

resubmitted design.

7.3.4 The design, will, when approved by buyer, become part of the

specifications.

7.4 Seller provided facilities

7.4.1 Unless specified otherwise in Item 20 of Schedule B, seller must:

a) establish and maintain all facilities necessary for its performance of the

contract; and

b) record any material changes in the relevant facilities or procedures and

make the record available to buyer on request.

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7.5 Documentation

7.5.1 seller must give buyer the documentation specified in Schedule C in the

format and at the times specified in that Schedule.

7.5.2 seller must ensure all documentation required to be provided with any

service or product is:

a) of a reasonable standard in terms of presentation, accuracy and

scope;

b) at the time of delivery, be current and accurate and consistent with the

specifications;

c) published in English with all key terms, words and symbols adequately

defined or explained; and

d) if revised or replaced for any reason, the revisions or replacements are

provided at no additional cost to buyer if buyer is at that time receiving

hardware support services or software support services (as

applicable).

7.6 Knowledge transfer and other assistance

7.6.1 In providing any services, seller’s personnel must, at no additional cost to

buyer, use reasonable efforts to transfer its knowledge about the services

(and related products) to buyer’s personnel.

7.7 Transition-in

7.7.1 If required by Item 21 of Schedule B within 10 business days of the

commencement date (or within such alternative timeframe as is specified

in that Item) seller must prepare a draft transition-in plan substantially in the

form of Schedule H and provide the plan to buyer for approval.

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7.7.2 Within 10 business days of receiving a draft transition-in plan from seller under clause 7.7.1, buyer must notify seller that:

a) buyer approves the draft transition-in plan; or

b) buyer (acting reasonably) requires changes to the draft transition-in

plan.

7.7.3 If buyer notifies seller under clause 7.7.2 that changes are required to the

draft transition-in plan, seller must amend the draft transition-in plan in

accordance with buyer’s requirements and resubmit the amended draft

transition-in plan to buyer under clause 7.7.1. Clause 7.7.2 applies to the

amended draft transition-in plan.

7.7.4 If buyer notifies seller under clause 7.7.2 that it approves the transition-in

plan, subject to clause seller must comply with the approved transition-in

plan.

7.8 General warranties

7.8.1 Clauses 7.8 to 7.12 do not limit any other warranties provided under this

contract.

7.8.2 seller warrants that:

a) it has the rights, title, licences, interest, permits, registrations and

property necessary to lawfully provide the deliverables;

b) the deliverables will be:

(i) fit for the purposes, and meet the other requirements, set out in

the specifications; and

(ii) complete, accurate and free from material faults in design; and

c) all materials (including documentation) supplied with the products

and services will be sufficient to enable buyer to make full and proper

use of the products and services.

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7.8.3 seller must notify buyer if anything happens or may happen that could

affect any of the warranties in this contract or seller’s ability to perform its

obligations under the contract.

7.9 Specific product warranties

7.9.1 seller represents and warrants:

a) unless otherwise specified in Schedule C, the products are new and

unused;

b) the products are free from any security interest or other

encumbrance; and

c) the products (and any media on which the products are provided)

are free from defects in workmanship, design and materials.

7.10 Specific service warranties

7.10.1 seller represents and warrants it will perform the services using a

professional degree of care, skill and diligence according to any applicable

industry best practice standard.

7.11 Third party warranties

7.11.1 Where seller supplies products that have been procured from a third party, seller assigns to buyer, to the extent practicable and to the extent

permitted by law, the benefits of the warranties given by the third party.

7.11.2 This assignment does not relieve seller of the warranties it provides directly

to buyer under this contract.

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7.12 Harmful code

7.12.1 seller must:

a) take reasonable precautions (including using good industry practice) to

ensure that it does not, and seller’s personnel do not; and

b) ensure it does not, and seller’s personnel do not, negligently or

deliberately,

introduce any harmful code into buyer’s systems or include any harmful code in any deliverable.

7.12.2 If seller become aware that harmful code has been, or is likely to have

been, introduced into buyer’s systems by buyer or buyer’s personnel or

included in a deliverable, seller must:

a) immediately notify buyer;

b) take all necessary steps to eliminate the harmful code in a

deliverable;

c) if seller is in breach of clause 7.12.1, take all necessary steps (at no

additional cost to buyer) to eliminate the harmful code in buyer’s systems and repair any damage caused by the harmful code to

buyer’s systems, subject to any directions given by buyer; and

d) if seller is not in breach of clause 7.12.1, if directed by buyer in a

notice and in accordance with such direction, at buyer’s cost,

eliminate the harmful code in buyer’s systems and repair any

damage caused by the harmful code to buyer’s systems.

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7.13 Escrow

7.13.1 If:

a) seller is providing base software under this contract; and/or

b) seller is providing a developed software package under this contract

and the intellectual property rights in the developed software package will be owned by seller (as specified in Item 23 of Schedule B);

then, if specified in Section 1 or Section 3 of Schedule C, within 20

business days of the commencement date, seller must enter into an

escrow arrangement in relation to the source code of the base software

and/or the developed software forming part of the developed software package in accordance with this clause 7.13.

7.13.2 An escrow agreement under this clause 7.13 must:

a) be an enforceable agreement between buyer, seller and a reputable

escrow agent approved by buyer (acting reasonably);

b) provide for seller to pay the fees of the escrow agent;

c) require seller to deposit one copy of all source code of the base software and/or the developed software forming part of the

developed software package, and any other components of the

developed software package not provided to seller (together,

escrow material) with the escrow agent within 5 business days of

the commencement of the escrow agreement (at no additional cost to

buyer), in a format that could be accessed by buyer without the use of

any keys or codes that have not been provided to buyer;

d) require seller to provide updated escrow material (including the most

up-to-date source code) to the escrow agent (at no additional cost to

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buyer) no less frequently than every 90 business days during the

term;

e) require the escrow agent to hold the escrow material on behalf of

buyer and seller and to keep the escrow material secure, for a

period at least 20 business days after the end of the term;

f) enable buyer (under the supervision of seller) to verify that the

escrow material is complete and up-to-date; and

g) require the escrow agent to release the escrow material to buyer on

written demand (without reference to seller) if the demand complies

with the requirements of this clause 7.13

7.13.3 buyer may demand that the escrow agent releases the escrow material to

buyer if:

a) seller becomes insolvent or ceases to carry on business;

b) seller is in material breach of its obligations under this contract relating

to the support of the base software and/or the developed software package and seller has not cured the breach within 10 business days of being required to do so in a notice from buyer to seller; or

c) buyer has terminated this contract under clause 16.5,

and buyer informs seller in a notice of its intention to demand the release

of the escrow material from the escrow agent at least 10 business days

before the demand on the escrow agent is made.

8. Acceptance

8.1 Acceptance process

8.1.1 seller must provide all deliverables to buyer for acceptance with a draft

acceptance certificate, signed by seller, confirming that the deliverable

meets all requirements for the deliverable under this contract.

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8.1.2 seller must:

a) provide deliverables to buyer in accordance with any applicable

requirements in Schedule C relating to the timing and location of

delivery including any delivery times and delivery locations; and

b) achieve acceptance of any deliverables by the due dates specified

or referred to in Schedule C.

8.1.3 By providing a deliverable to buyer for acceptance, seller warrants that

the deliverable meets all requirements for the deliverable under this

contract, including the specifications for the deliverable.

8.1.4 If buyer receives a deliverable under clause 8.1.1, within 10 business days (or an alternative period specified in Schedule C or the acceptance test plan) buyer must conduct acceptance tests on the deliverable to

assess whether the deliverable meets the acceptance criteria and

specifications for the deliverable and either:

a) accept the deliverable by signing the draft acceptance certificate provided with the deliverable and sending that certificate to seller; or

b) reject the deliverable (because it does not meet the acceptance criteria and specifications for the deliverable and/or because the

deliverable has one or more major defects) by sending a notice to

seller that includes the reasons for rejection.

8.1.5 seller must (at no additional cost to buyer) provide any assistance

reasonably requested by buyer in a notice in relation to the conduct of

acceptance tests on a deliverable.

8.1.6 buyer may not accept a deliverable in any other way other than signing an

acceptance certificate for the deliverable. buyer is not taken to accept a

deliverable because it accepts delivery of the deliverable or uses the

deliverable.

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8.1.7 buyer’s acceptance of a deliverable does not waive or limit any right

buyer has under this contract (including in relation to the remediation of

defects) in relation to the quality of the deliverable.

8.1.8 buyer must meet the costs of buyer’s acceptance testing unless a

deliverable requires retesting because it was properly rejected by buyer under clause 8.1.4, in which case buyer, by notice to seller, may require

seller to reimburse buyer for buyer’s reasonable costs of the additional

acceptance tests. If buyer issues a notice to seller under this clause,

buyer’s reasonable costs of the additional acceptance tests are a debt

due to buyer by seller.

8.2 Acceptance test plan

8.2.1 This clause 8.2 only applies if Item 22 of Schedule B requires an

acceptance test plan.

8.2.2 seller must prepare a draft acceptance test plan in the form of the

template at Schedule D and provide it to seller for approval within the time

period specified in Item 22 of Schedule B (or if no time period is specified,

within 20 business days of the commencement date). If buyer does not

approve the acceptance test plan, it may by notice give reasonable

directions to seller to modify the acceptance test plan. seller must comply

with such directions and, within 5 business days, resubmit the acceptance test plan to buyer for approval under this clause 8.2.2.

8.2.3 If buyer approves an acceptance test plan submitted under clause 8.2.2,

seller and buyer must prepare for the testing of deliverables, test

deliverables and accept or reject deliverables in accordance with the

approved acceptance test plan. If, in relation to a particular deliverable,

the approved acceptance test plan is directly inconsistent with a

requirement of clause 8.1, the approved acceptance test plan prevails to

the extent of the inconsistency.

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9. Intellectual property and moral rights

9.1 Overview

9.1.1 contract material consists of existing material and new material.

9.1.2 Unless expressly stated otherwise, this contract does not affect the

ownership of intellectual property rights in existing material which will

remain with either seller, a third party or buyer, as applicable.

9.1.3 seller must obtain all necessary intellectual property rights permissions

before including any existing material (other than buyer’s existing material) in the contract material or using that existing material to deliver

the services.

9.1.4 If a party is required to vest ownership of new material in the other party in

accordance with this clause 9, that party must do all things and execute all

documents necessary or convenient to vest that material in the other

party.

9.2 Intellectual property rights in software (and associated materials)

9.2.1 This contract does not affect the ownership of intellectual property rights

in base software which will remain with either seller or a third party, as

applicable. base software is licensed to buyer on the terms specified in

clause 5.2.

9.2.2 Ownership of intellectual property rights in the developed software package will be in accordance with either Model A in clauses 9.2.3 and

9.2.4 or Model B in clause 9.2.5, as specified in Item 23 of Schedule B. If no ownership model is selected in Schedule B, Model A will apply.

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9.2.3 Model A: All intellectual property rights in the developed software package will, upon their creation, vest in seller and seller grants buyer a

perpetual licence to all intellectual property rights in the developed software package for any use for government purposes and includes a

right for buyer to assign the licence to another agency, on the same terms

at no additional cost to buyer or the assignee.

9.2.4 The licence granted under clause 9.2.3 is not subject to any obligation on

buyer (or any other person) receiving any software support services or

other services from seller. An agency that is not a party to this contract is

entitled to the benefit of, and may enforce, the licence rights in clause 9.2.3

as if it were a party to the contract.

9.2.5 Model B: All intellectual property rights in the developed software

package will, upon their creation, vest in buyer. buyer grants seller a

contract delivery licence to the developed software package.

9.2.6 Irrespective of whether Model A or Model B applies, seller grants to, or

must obtain for, buyer a perpetual licence to use any associated software for government purposes.

9.3 Intellectual property rights in all other contract material

9.3.1 This clause 9.3 does not apply to software (including a developed software package).

9.3.2 seller grants to, or must obtain for, buyer a perpetual licence to use all existing material (other than buyer’s existing material) for government purposes.

9.3.3 buyer grants seller a contract delivery licence to all buyer’s existing material.

9.3.4 Ownership of intellectual property rights in new material will be in

accordance with either Model A in clause 9.3.5 or Model B in clause 9.3.6,

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as specified in Item 24 of Schedule B. If no ownership model is selected in

Schedule B, Model A will apply.

9.3.5 Model A: All intellectual property rights in new material will, upon their

creation, vest in buyer. To the extent seller needs to use new material to

perform its obligations under this contract, buyer grants seller a contract delivery licence to that new material.

9.3.6 Model B: All intellectual property rights in new material will, upon their

creation, vest in seller and seller grants buyer a perpetual licence to all

intellectual property rights in the new material for any use for

government purposes and buyer may assign the licence to another

agency, on the same terms but at no additional cost to buyer or the

assignee.

9.4 IP warranty

9.4.1 seller warrants that:

a) all contract material (other than existing material provided by buyer) and buyer’s use of that contract material will not infringe the

intellectual property rights of any person; and

b) it has the necessary rights to vest under clauses 9.1 to 9.3 and to grant

the licences required or referred to under this clause 9.

9.5 Infringement claims

9.5.1 If a claim of infringement of intellectual property rights or moral rights is

made or threatened by a third party, buyer will allow seller, at seller’s

expense, to either:

a) obtain for buyer the right to continued use of the material; or

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b) replace or modify the material so that the alleged infringement ceases,

provided the material continues to provide buyer with equivalent

functionality and performance as required in the specifications.

9.6 Moral rights

9.6.1 seller represents and warrants that its performance of the contract

(including provision of any material) or buyer’s use of material in

accordance with the contract will not infringe the moral rights of seller personnel.

9.6.2 seller must ensure that no seller personnel will institute, maintain or

support any claim or proceeding against buyer or buyer personnel for

infringement of any of their moral rights.

10. Buyer assistance to seller

10.1 Access to buyer material

10.1.1 buyer must provide to seller buyer material (if any) specified in Item 25 of

Schedule B. The documentation will:

a) to buyer’s reasonable knowledge and belief, be fit for the purpose

stated in Schedule B; and

b) remain the property of buyer and seller must identify it as such.

10.1.2 seller must not, without buyer’s prior written approval, use buyer material other than for the purpose stated in Schedule B.

10.1.3 seller’s obligations under the contract are not limited by buyer’s provision

of this material.

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10.2 Access to buyer personnel

10.2.1 buyer must make available buyer personnel specified in Item 26 of

Schedule B to provide the assistance specified in that Schedule.

10.2.2 seller’s obligations under the contract are not limited by buyer’s provision

of this assistance.

10.3 Use of buyer facilities

10.3.1 buyer must make the facilities specified in Item 27 of Schedule B reasonably available to seller for its use in performing the contract.

10.3.2 buyer warrants that:

a) such facilities (including any equipment or software) will comply with

the requirements specified in Item 27 of Schedule B;

b) such facilities will be maintained by buyer in accordance with the

requirements (if any) in Item 27 of Schedule B; and

c) should a facility fail at any time to meet the requirements in Item 27 of

Schedule B, without limiting any other rights of seller, buyer will take

steps to ensure the facility meets the requirement as soon as

practicable.

10.4 Access to buyer facilities

10.4.1 buyer must provide seller access to buyer’s facilities specified in Item 28

of Schedule B to enable seller to fulfil its obligations under the contract.

10.4.2 buyer may temporarily deny seller access to buyer’s facilities, at its sole

discretion.

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10.5 Site specification and preparation

10.5.1 Item 29 of Schedule B specifies the details (if any) of the implementation

and environmental requirements of a service and/or product (site

specifications) to allow buyer to prepare the site to meet those

requirements.

10.5.2 Unless specified otherwise in Item 29 of Schedule B, buyer is responsible

for preparing the site to meet the site specifications.

11. Charges and payment

11.1 Charges

11.1.1 The charges are set out in Schedule G and, subject to seller’s

performance of its obligations in accordance with the contract, are payable

by buyer in accordance with this clause 11 and Schedule G.

11.1.2 The charges may be based on one or more of the following:

a) time;

b) unit;

c) payment milestones;

d) any other basis specified in Schedule G.

11.2 Invoices

11.2.1 After acceptance of a deliverable or delivery milestone, or as otherwise

specified in Schedule G, seller must promptly deliver to buyer at the

invoice address specified in Item 30 of Schedule B a correctly rendered invoice covering the charges payable.

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11.3 Payment

11.3.1 buyer will make payment within 30 days of receiving a correctly rendered invoice, unless a different period is specified in Schedule G.

11.3.2 The parties agree that payments may be effected by electronic funds

transfer in accordance with Schedule G, or as otherwise agreed.

11.3.3 If the parties dispute whether any amount included in an invoice is payable,

buyer may withhold the disputed portion until the dispute is resolved but will

pay the undisputed portion within the period specified in clause 11.3.1.

11.4 Service Rebates

11.4.1 If specified in Schedule G and if seller is responsible for failing to achieve a

service level, seller:

a) must pay service rebates to buyer in accordance with Schedule G;

b) acknowledges that any service rebates calculated in accordance with

Schedule G are a genuine pre-estimate of the loss and damage

buyer will suffer because of the service level failure;

c) acknowledges that payment of any service rebates will be without

prejudice to any other rights or remedies buyer has against seller under, or arising from, this contract because of the service level failure; and

d) will not be liable to pay any service rebates to the extent the service level failure was caused by buyer’s failure to comply with the contract.

11.4.2 The parties agree that the total amount of service rebates payable by

seller under this contract must not exceed the total amount of the charges

payable to seller under this contract.

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11.5 GST and other taxes

11.5.1 All taxes imposed or levied in Australia or overseas in connection with this

contract will be the responsibility of seller.

11.5.2 In this clause 11.5, a word or expression defined in the GST Act has the

meaning given to it in that Act.

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

contract in respect of which GST is payable, the recipient of the supply must

pay to the supplier, an additional amount equal to the GST payable on the

supply.

11.6 Maximum charges payable

11.6.1 Notwithstanding any other provision of this contract (other than clause

11.7a)) buyer has no liability to pay charges to seller to the extent that

those charges exceed the maximum charges payable.

11.7 Late payment of invoices

11.7.1 This clause 11.7 only applies where:

a) the value of this contract is not more than $1 million (GST inclusive);

and

b) amount of the interest payable exceeds $100 (GST inclusive).

11.7.2 buyer must pay interest on late payments to seller as follows:

a) for payments made by buyer 30 days and up to 60 days after the

amount became due and payable, only where seller issues a

correctly rendered invoice for the interest; or

b) for payments made by buyer more than 60 days after the amount

became due and payable, buyer will pay the interest accrued together

with the payment.

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11.7.3 Interest payable under this clause 11.7 will be simple interest on the unpaid

amount at the general interest charge rate, calculated in respect of each day

after the amount was due and payable, up to and including the day buyer effects payment as represented by the following formula:

SI = UA x GIC x D, where:

SI = simple interest amount;

UA = the unpaid amount;

GIC = general interest charge rate; and

D = the number of days from the day after payment was due up to and

including the day when buyer’s system generates a payment request

into the banking system for payment to seller.

11.8 Right to recover money

11.8.1 Without limiting buyer’s rights or remedies under this contract or at law, if

seller owes any debt to buyer in relation to this contract, buyer may do one

or both of the following:

a) deduct the amount of the debt from payment of any claim or monies

owed to seller by buyer;

b) give seller a notice requesting payment of the debt by seller.

11.8.2 seller must pay the amount claimed by buyer in a notice issued under

clause b) within 30 days of the notice date.

11.8.3 If any money owed to buyer is not received by the due date for payment,

seller must pay buyer interest for each day of the delay at the general interest charge rate current at the due date for payment.

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Contract Management and Performance

12. Information management

12.1 Privacy

12.1.1 seller must, in relation to the performance of this contract:

a) not do any act, omit any act or engage in any practice;

b) ensure that seller’s personnel do not do any act, omit any act or

engage in any practice; and

c) ensure that every subcontract makes it a breach of the subcontract by the subcontractor if the subcontractor does any act, omits any

act or engages in any practice;

d) that,

e) if done or omitted by buyer, would be a breach of an Australian

Privacy Principle under the Privacy Act 1988 (Cth); and/or

f) would be an interference with the privacy of an individual, within the

meaning of that expression in the Privacy Act 1988 (Cth).

12.1.2 seller must comply with, and ensure that seller’s personnel comply with,

any privacy policy or guidelines specified at Item 31 of Schedule B.

12.1.3 seller must ensure that all of seller’s personnel who access personal information in relation to this contract are informed about seller’s obligations under this clause 12.1.

12.1.4 seller must immediately notify buyer if any of the following occur:

a) seller receives a complaint from a third party about the handling of any

personal information held or accessed by seller in relation to this

contract;

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b) the Privacy Commissioner in any Australian jurisdiction requests

information about or commences an investigation in relation to this

contract;

c) seller breaches its obligations under this clause 12.1 or becomes

aware of circumstances that may reasonably suggest that it could have

breached its obligations under this clause.

12.2 Confidentiality

12.2.1 Subject to clause 12.2.2, seller must:

a) keep buyer’s confidential information confidential;

b) only use buyer’s confidential information for the purpose of

performing this contract; and

c) not disclose buyer’s confidential information to any third party

except as expressly authorised by this contract or in a notice from

buyer to seller.

12.2.2 seller may disclose buyer’s confidential information as required by law

or the rules of a securities exchange. However, any such disclosure must be

the minimum disclosure required.

12.2.3 Unless prevented by law, seller must inform buyer in a notice about any

proposed disclosure of buyer’s confidential information under clause

12.2.2.

12.2.4 Clause 12.2.1 does not prevent seller providing access to buyer’s confidential information to seller’s personnel, auditors and advisers on a

confidential basis for purposes relating to this contract.

12.2.5 Subject to clause 12.2.6 buyer must:

a) keep seller’s confidential information confidential;

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b) only use seller’s confidential information for purposes relating to

this contract; and

c) not disclose seller’s confidential information to any third party

except as expressly authorised by this contract or in a notice from

seller to buyer.

12.2.6 buyer may disclose seller’s confidential information:

a) as required by law (including under the Freedom of Information Act 1982 (Cth)); or

b) pursuant to an accountability obligation.

12.2.7 Unless prevented by law, buyer must inform seller about any proposed

disclosure of buyer’s confidential information under clause a).

12.2.8 Clause 12.2.5 does not prevent buyer providing access to seller’s confidential information on a confidential basis to:

a) buyer’s employees, contractors, auditors and advisers for purposes

relating to this contract, or

b) an agency, in relation to the operation of clause 1.4 or for a purpose

relating to the agency’s functions.

12.2.9 If a party becomes aware that it has breached its obligations under this

clause 12.2, it must immediately notify the other party.

12.3 Buyer’s data

12.3.1 seller must maintain any buyer’s data it holds securely and in accordance

with Item 35 of Schedule B.

12.3.2 seller is permitted to access and use buyer’s data for the sole purpose of

performing this contract. seller has no rights in relation to buyer’s data.

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12.3.3 Unless authorised by buyer in a notice to seller, buyer must not conduct

any data mining activities in respect of buyer’s data.

12.3.4 Unless authorised by buyer in a notice to seller, seller must not do

anything to transfer custody or ownership of buyer’s data to a third party.

12.3.5 seller must provide buyer access to buyer’s data as requested by buyer in

a notice to seller.

12.3.6 buyer may at any time issue reasonable directions to seller in a notice to

comply with archival and information management requirements for buyer’s data that are necessary or desirable to enable buyer to comply with

government policy. Subject to clause 12.3.7, seller must comply with such

directions.

12.3.7 If seller (acting reasonably) considers complying with a direction under

clause 12.3.6 would materially increase its costs of performing this contract,

within 15 business days it must notify buyer and propose a change to the

contract under clause 16.1 to give effect to buyer’s direction under clause

12.3.6 . If seller gives a notice under this clause 12.3.7, seller is not

required to comply with buyer’s direction under clause 12.3.6 until the

contract variation is agreed by the parties.

12.3.8 Upon the expiry or termination of this contract, seller must:

a) transfer all of buyer’s data to buyer, in accordance with any

reasonable directions of buyer in a notice to seller; and

b) unless otherwise required by law or otherwise permitted in Item 35 of

Schedule B, delete all of buyer’s data from seller’s systems, provide

buyer with confirmation that this has been done in a notice and return

all buyer’s data that is in physical form to buyer.

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12.4 Records

12.4.1 seller must maintain sufficient, accurate and up-to-date business and

accounting records (including supporting documentation) of all transactions

or events in relation to this contract (including records of all deliverables

provided under this contract, and substantiation for all amounts claimed in

any invoice issued under this contract) until the latter of 2 years after the

termination or expiry of this contract and two years after the transaction or

event.

12.4.2 seller must ensure that the records maintained under clause 12.4.1:

a) are kept securely;

b) are kept in a manner that enables them to be conveniently audited;

and

c) comply with any applicable accounting standards.

12.5 Transferring data off-shore

12.5.1 seller must not transfer, store or access buyer’s confidential information outside Australia unless permitted in Item 36 of Schedule B or in a notice

from buyer to seller. Item 36 of Schedule B or a notice from buyer may

impose conditions on any such permission.

12.5.2 seller must comply with any conditions in Item 36 of Schedule B or in a

notice under clause 12.5.1

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13. Security

13.1 General requirements

13.1.1 To the extent they are applicable to seller’s performance of this contract,

seller must perform all of its obligations under this contract in a manner that

is consistent with:

a) the Protective Security Policy Framework and the Commonwealth

Information Security Manual; and

b) any of buyer’s security Commonwealth policies specified in Item 37 of

Schedule B.

13.1.2 When performing its obligations under this contract, seller must comply

with:

a) all security requirements specified in Item 37 of Schedule B; and

b) subject to clause 13.1.3, any direction relating to security given by

buyer in a notice to seller (which may include a direction to comply

with an additional security policy or requirement).

13.1.3 If seller (acting reasonably) considers complying with a direction under

clause b) would materially increase its costs of performing this contract,

within 5 business days it must notify buyer and propose a change to the

contract under clause 16.1 to give effect to buyer’s direction under clause

b). If seller gives a notice under this clause, seller is not required to comply

with buyer’s direction under clause b) until the contract variation is agreed

by the parties.

13.1.4 Without limiting any other clause, seller must ensure that buyer’s data is

protected against loss, damage, corruption, misuse and unauthorised

access by taking security measures that are no less stringent than good

industry practice.

13.1.5 seller must immediately notify buyer if any of the following occur;

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a) seller breaches any of its obligations under this clause 13;

b) seller becomes aware of circumstances that may reasonably suggest

that it could have breached its obligations under this clause 13;

c) seller becomes aware that any buyer’s data has been lost, stolen,

misused, corrupted or accessed by an unauthorised person;

d) seller becomes aware of circumstances that may reasonably suggest

that any buyer’s data has been lost, stolen, corrupted or accessed by

an unauthorised person.

13.2 Physical security

13.2.1 seller must:

a) ensure that seller’s premises are kept secure;

b) ensure that buyer’s data in physical form is kept in appropriate

security containers for its security classification;

c) ensure that seller’s personnel who have access to buyer’s data are

briefed on security requirements for buyer’s data; and

d) at buyer’s request in a notice, provide details of seller’s physical

security measures in place to protect buyer’s data.

13.3 Cyber security

13.3.1 seller must take reasonable and prudent steps consistent with good

industry practice to reduce the risk of cyber attack on seller’s systems.

13.3.2 At buyer’s request in a notice, seller must provide details of seller’s

security measures in place to reduce the risk of cyber attack on seller’s systems.

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13.3.3 If seller becomes aware of a cyber attack on seller’s systems, seller must immediately notify:

e) buyer (and, if this notification is not done by notice, by notice within 1

business day); and

a) if required by buyer, advise CERT Australia and/or the Australian

Cyber Security Centre.

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13.4 Information security

13.4.1 seller must:

b) take reasonable and prudent steps for disaster recovery and business

continuity consistent with good industry practice to ensure that

buyer’s data on seller’s systems is not lost, corrupted or rendered

inaccessible;

a) ensure that access to seller’s systems is controlled so that only

seller’s personnel with a need to access buyer’s data for a purpose

relating to the performance of this contract are able to access buyer’s data; and

b) ensure that seller’s systems are configured so that seller’s personnel who are not permitted under this contract to access

buyer’s confidential information cannot access buyer’s confidential information.

14. Liability

14.1 Liability

14.1.1 seller is responsible for any act or omission of seller’s personnel in

relation to this contract, whether or not the act or omission is authorised by

seller.

14.1.2 Each party must use reasonable endeavours to mitigate its loss or damage

relating to this contract where the other party is liable for the loss or

damage (whether because of breach of this contract or otherwise).

14.1.3 The liability of a party to the other party in relation to this contract (including

under an indemnity) is reduced proportionately if the party incurring the loss

or suffering the damage has contributed to the loss or damage through:

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a) a breach of its obligations under this contract; and/or

b) a negligent or deliberately wrongful act or omission (including, in the

case of seller, an act or omission by seller’s personnel, and in the

case of buyer, an act or omission of buyer’s employees or officers).

14.2 Limitations of liability

14.2.1 If an amount is included at Item 38 of Schedule B, subject to clause 14.2.2,

the liability of each party to the other party in relation to this contract

(including under an indemnity) is limited to that amount.

14.2.2 The limitation of liability in clause 14.2.1 does not apply to liability for any of

the following:

a) personal injury (including sickness and death);

b) the loss of, or damage to, tangible property;

c) for an infringement of intellectual property rights;

d) for a breach of any obligation relating to confidentiality, privacy or

security (including any obligation on seller relating to the protection of

buyer’s data);

e) for breach of law;

f) a deliberately wrongful act or omission (including fraud and, in the

case of seller, repudiation of this contract).

14.2.3 Subject to clause 14.2.4, neither party is liable to the other party for loss or

damage of the following types:

a) loss of goodwill;

b) loss of business revenue, business opportunity or business profits.

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14.2.4 Clause 14.2.3 does not prevent a party recovering from the other party loss

or damage of the following type:

a) additional internal or project costs;

b) the cost of repairing or replacing deliverables;

c) the cost of having additional services performed by a third party;

d) legal fees.

14.2.5 Subject to clause 14.2.6, seller is not responsible for a failure to meet its

obligations under this contract to the extent that the failure is directly caused

by inaccurate or incomplete buyer’s data which is required by seller to

perform the contract.

14.2.6 seller is only entitled to the benefit of clause 14.2.5 in relation to inaccurate

or incomplete buyer’s data if seller notifies buyer immediately it becomes

aware that the relevant buyer’s data is inaccurate or incomplete or is

inconsistent with other buyer’s data.

14.3 Indemnities

14.3.1 seller indemnifies buyer and buyer’s employees, officers, agents and

contractors against losses reasonably sustained or incurred by any of them

as a result of any claim made or threatened by a third party (including a

subcontractor) in relation to any of the following:

a) a breach of this contract, including any breach of seller’s warranties in

this contract;

b) any claim that any deliverables provided by seller to buyer under this

contract infringe the intellectual property rights of a third party; and

c) any negligent or deliberately wrongful act or omission, or breach of

law, in relation to this contract.

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14.3.2 buyer holds the benefit of the indemnity in clause 14.3.1 on trust for

buyer’s employees, officers, agents and contractors.

14.3.3 For the purpose of clause 14.3.1, a claim by a third party that it is entitled

to payment from buyer in relation to its use of deliverables provided by

seller to buyer under this contract is taken to be a claim by the third party

that the deliverables infringe the third party’s intellectual property rights, despite statutory provisions providing protection to the

Commonwealth for infringement of intellectual property rights (for

example, section 183 of the Copyright Act 1968 (Cth)).

14.3.4 To enforce the indemnity in clause 14.3.1, buyer must:

a) notify seller;

b) subject to clause 14.3.5, permit seller, at seller’s expense, to manage

settlement negotiations and any litigation with the third party; and

c) if seller does manage settlement negotiations and any litigation with

the third party, to provide (at seller’s request in a notice) reasonable

assistance to seller in relation to the negotiations or litigation.

14.3.5 If seller handles settlement negotiations and any litigation with the third party under clause 14.3.4, seller must:

a) comply with law (including the legal services directions) and

government policy in relation to the negotiations and/or litigation as if

seller was an agency of the same type as buyer;

b) comply with any direction issued by the Commonwealth Attorney-

General to buyer (and notified to seller) in relation to the negotiations

and/or litigation; and

c) promptly provide buyer with any information reasonably requested by

buyer in a notice to seller in relation to the negotiations and/or

litigation (including all information required by buyer to comply with

reporting obligations under the legal services directions).

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14.3.6 The rights of buyer and its employees, officers, agents and contractors

under clause 14.3.1 are in addition to any other rights.

14.4 Insurance

14.4.1 seller must maintain the following insurance policies on ordinary terms with

no unusual exclusions:

a) workers compensation insurance, during the term, as required by law;

b) public liability insurance, in an amount of at least the value specified in

Item 39 of Schedule B;

c) if seller provides services under this contract, professional indemnity

insurance, in an amount of at least the value specified in Item 40 of

Schedule B;

d) if seller provides products under this contract, product liability

insurance, in an amount of at least the value specified in Item 41 of

Schedule B; and

e) any other insurance specified in Item 42 of Schedule B, in an amount

of at least the value specified in Item 42.

14.4.2 All amounts specified in clause 14.4.1 are per claim (or series of related

claims).

14.4.3 seller must maintain all insurance policies required under clause 14.4.1

during the term, other than “claims made” polices which must be maintained

for at least 2 years (or such longer period if any specified in Item 43 of

Schedule B) after the expiry or termination of this contract.

14.4.4 If requested by buyer in a notice, seller must provide buyer with

certificates of currency of all insurance policies required under clause 14.4.1

and details of the extent of cover.

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14.5 Guarantees and undertakings

14.5.1 If specified in Item 44 of Schedule B, seller must (at no cost to buyer) no

later than 5 business days after the commencement date, provide buyer with a guarantee:

a) in favour of buyer;

b) substantially in the form of Schedule M;

c) from a person specified in Item 44 of Schedule B (or if no person is

specified in that Item, a person reasonably satisfactory to buyer); and

d) that is properly executed by the guarantor under all applicable laws

and legally enforceable against the guarantor.

14.5.2 If:

a) seller provides a guarantee under clause 14.5.1; and

b) the guarantee was not executed in Australia, and/or the guarantor is

not an Australian company;

14.5.3 at the request of buyer in a notice to seller, seller must (at no cost to

buyer), within 5 business days of the notice, provide buyer with a legal

opinion from lawyers qualified to practise in the jurisdiction of incorporation

of the guarantor and the jurisdiction where the guarantee was executed,

addressed to buyer, that confirms that:

c) the guarantee was properly executed by guarantor; and

d) the guarantee is legal, valid and binding on the guarantor.

14.5.4 If specified in Item 45 of Schedule B, seller must (at no cost to buyer) no

later than 5 business days after the commencement date provide buyer with a “bank guarantee”:

a) in favour of buyer;

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b) with an expiry date no earlier than the end date;

c) given by an authorised deposit-taking institution, within the meaning of

that term in the Banking Act 1959 (Cth);

d) for an amount at least the amount specified in Item 45 of Schedule B;

e) that is an unconditional undertaking by the authorised deposit-taking

institution to pay buyer on demand, without reference to seller and

without making any inquiry in relation to buyer’s demand; and

f) that is governed by the laws of an Australian jurisdiction.

15. Management of performance issues

15.1 Defects

15.1.1 If seller delivers any deliverable to buyer for acceptance and buyer rejects the deliverable, on the basis of acceptance tests, because the

deliverable has a major defect, seller must (at no additional cost to buyer) remedy the major defect and resubmit the deliverable without defects to

buyer for acceptance.

15.1.2 If seller delivers any deliverable to buyer for acceptance and buyer accepts the deliverable but notifies seller that, on the basis of

acceptance tests, the deliverable has minor defects, seller must (at no

additional cost to buyer) remedy the minor defect within 10 business days.

15.1.3 If seller delivers any deliverable to buyer and buyer accepts the

deliverable but:

a) the deliverable has a defect; and

b) during the warranty period for that deliverable, buyer notifies seller that the deliverable has the defect,

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seller must (at no additional cost to buyer) remedy the defect within 10

business days of the date on which it was notified of the defect.

15.1.4 If seller does not comply with its obligations under clause 15.1.2 or clause

15.1.3 to remedy a defect in a deliverable within 10 business days of a

notice from buyer, buyer may remedy the defect and, by notice to seller, require seller to reimburse buyer for buyer’s reasonable costs of

remediation. If buyer issues a notice to seller under this clause, buyer’s

reasonable costs of remediation of the defect are a debt due to buyer by

seller.

15.1.5 buyer’s rights under this clause 15.1 are in addition to any rights buyer has

in relation to defects under clause 6.3 or clause 6.4.

15.2 Delay

15.2.1 seller must immediately notify buyer if seller becomes aware that there

will be, or is likely to be, a delay in relation to any deliverable or delivery milestone. This notice must include a full explanation (to the extent that is

reasonable practical at the time of the notice) of:

a) the nature and expected duration of the delay;

b) the likely impact of the delay on the delivery of other deliverables and

the achievement of other delivery milestones;

c) the causes of the delay;

d) the steps that seller is taking to minimise the delay; and

e) whether the delay was caused in whole or in part by buyer because

buyer has failed to meet buyer dependencies or because buyer has

otherwise failed to comply with its obligations under this contract.

15.2.2 If a notice given by seller under clause 15.2.1 does not include a full

explanation of all of the matters in clauses a) to clause e), seller must give

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buyer a further notice including a full explanation of all those matters as

soon as is reasonably practicable.

15.2.3 seller must use its best endeavours to minimise any delay in relation to any

deliverable or delivery milestone, and the impact of the delay on buyer, irrespective of the cause of the delay.

15.3 Liquidated damages

15.3.1 Subject to this clause 15.3, if Item 46 of Schedule B provides for the

payment of a daily liquidated damages amount for delay in relation to a

deliverable or a delivery milestone, seller must pay buyer that daily rate

(on a GST exclusive basis) for each day of the delay until the deliverable is

accepted or the delivery milestone is achieved.

15.3.2 seller is not required to pay liquidated damages for a delay in relation to a

deliverable or a delivery milestone in excess of the liquidated damages

liability cap specified in Item 46 of Schedule B.

15.3.3 seller has no obligation to pay liquidated damages under clause 15.3.1

unless buyer requires payment of the liquidated damages in a notice to

seller. If buyer gives such a notice, the liquidated damages become a debt

due to buyer, as they accrue on a daily basis.

15.3.4 The parties acknowledge that the liquidated damages provided for in Item

46 of Schedule B represent a genuine pre-estimate of buyer’s loss relating

to the delays to which they relate and are not a penalty.

15.3.5 If liquidated damages are payable under this clause 15.3.1 by seller for a

delay in relation to a deliverable or a delivery milestone, those liquidated

damages are buyer’s exclusive remedy in relation to the period of delay

covered by the damages. However, subject to clause 14.2.1, buyer may

recover general damages in the normal course for any period of the delay

not covered by liquidated damages because of the operation of clause

15.3.2.

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15.4 Extensions of time and delay costs

15.4.1 If seller becomes aware there will be, or is likely to be, a delay in relation to

any deliverable or delivery milestone, seller may by notice to buyer request an extension of time in relation to the deliverable or delivery milestone. Subject to clauses 15.4.2, 15.4.3 and 15.4.4, seller must grant

the request for an extension of time if the delay is caused by:

a) buyer failing to meet buyer dependencies or otherwise acting in

breach of its obligations under this contract (including by breaching its

obligations under clause 10); or

b) events beyond the reasonable control of seller or seller’s personnel.

15.4.2 seller is not entitled to an extension of time for a delay if:

a) seller has not fully complied with its obligations under clause 15.2.1 in

relation to the delay;

b) the delay is due to seller failing to prudently manage risks in

accordance with this contract and good industry practice; or

c) the cause of the delay is industrial action by seller’s employees or a

subcontractor’s employees or the inability of seller or a

subcontractor to engage or retain appropriate numbers of

appropriately qualified and experienced employees.

15.4.3 If buyer requests an extension of time in relation to a deliverable or a

delivery milestone because of buyer failing to meet buyer dependencies,

it may only seek an extension of time for the period it was unable to perform

its obligations because of buyer’s failure to meet buyer dependencies.

15.4.4 If a delay in relation to any deliverable or delivery milestone results in

buyer dependencies being required at a later time than indicated in the

contract:

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a) buyer is only required to meet buyer dependencies as soon as

reasonably practical (taking into consideration buyer’s business

operations and other projects);

b) buyer may take the period of time allowed in the contract to complete

buyer dependencies; and

c) seller may not seek an extension of time for the period of time buyer is permitted to take under this clause 15.4.4 to complete buyer dependencies.

15.4.5 If seller grants an extension of time under this clause 15.4, the parties must

agree a contract variation under clause 16.1 to change any applicable

delivery times to reflect the extension of time.

15.4.6 seller must take reasonable steps to mitigate its additional costs associated

with a delay. seller may only claim additional charges in relation to a delay in exceptional circumstances to compensate it for additional costs if an

extension of time is granted in relation to the delay and:

a) the delay resulting in the extension of time was caused by buyer failing to meet buyer dependencies or its other obligations under this

contract;

b) seller has complied with its obligations in relation to the delay; and

c) seller provides a notice to buyer that includes full substantiation of

seller’s additional costs caused by the delay and the steps taken by

seller to mitigate those additional costs.

16. Changing and ending the contract

16.1 Variation

16.1.1 Other than as expressly provided in this contract, this contract may only be

varied in writing, signed by the parties. buyer is not responsible for any

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additional charges or for any additional costs incurred by seller in relation

to a proposed variation until the variation is recorded in writing and is signed

by the parties.

16.1.2 If a party proposes a change to the contract, that party must complete

Schedule J in relation to the proposed change and include the completed

change order in a notice to the other party for that party’s consideration.

16.1.3 If a limitation of liability amount is included at Item 38 of Schedule B and

the risks relating to this contract for a party would increase or decrease as a

result of a proposed variation of this contract, the parties must negotiate in

good faith (as part of negotiations for the variation) to increase or decrease

the limitation of liability amount to reflect the changed risks.

16.1.4 Each party must meet its own costs of varying the contract under this

clause 16.1.

16.2 Buyer directions

16.2.1 If buyer (acting reasonably) considers that seller will not meet, or has not

met, its obligations under this contract, buyer may give seller a reasonable

direction in a notice to minimise the impact of seller’s actual or prospective

breach of this contract on buyer. seller must comply with any direction

given by buyer under this clause 16.2.1.

16.3 Pricing contract variations

16.3.1 seller may only propose increased charges for a contract variation when

completing Schedule J under clause 16.1.2 if the proposed variation would

involve seller incurring additional costs, compared to the costs of

performing the contract without the variation.

16.3.2 seller must ensure that such increased charges are reasonable, calculated

on the same basis as Schedule G and, if requested by buyer in a notice to

seller, substantiated.

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16.3.3 If Schedule G includes a pricing mechanism for contract variations, seller must apply that mechanism when proposing increased charges for a

contract variation when completing Schedule J under clause 16.1.2.

16.4 Termination and reduction for convenience

16.4.1 buyer may by notice to seller terminate or partially reduce the scope of this

contract with immediate effect for buyer’s convenience.

16.4.2 If buyer gives seller a notice under clause 16.4.1, seller must immediately:

a) in the case of a termination, stop the delivery of products and

services under this contract;

b) in the case of a partial reduction in scope, stop the delivery of

products and services under this contract covered by the reduction in

scope but continue the delivery of all other products and services

under this contract; and

c) in either case, take all practical steps to mitigate its loss arising from

the termination or partial reduction in scope.

16.4.3 If buyer exercises its right to terminate or partially reduce the scope of this

contract under this clause 16.4:

a) buyer has no liability to seller in relation to the termination or

reduction of scope other than as provided by this clause 16.4.3;

b) buyer has no liability to seller in relation to loss of future or

prospective charges or profits;

c) buyer has no liability to seller under this clause 16.4.3 for any amount,

when aggregated with other charges paid or payable by buyer, exceeds the maximum charges payable;

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d) seller may recover charges for any products or services properly

delivered in accordance with this contract up to the date of the

termination or reduction of scope;

e) seller may recover costs directly relating to the termination that were

unavoidably incurred in the proper performance of this contract, that

cannot be mitigated and that can be substantiated to the reasonable

satisfaction of buyer; and

f) in the case of a reduction of scope, buyer and seller will negotiate in

good faith on whether any ongoing charges of a recurring nature

should be reduced to reflect the reduced scope of the contract and, if

so, the amount of the reduction (such reduction to be agreed through

the variation process in clause 16.1).

16.5 Termination by buyer for default

16.5.1 buyer may by notice to seller terminate or partially reduce the scope of this

contract with immediate effect if any of the following apply:

a) seller is in breach of this contract and seller has not cured the breach

within 10 business days of being required to do so in a notice from

buyer to seller;

b) seller is in material breach of this contract and the breach cannot be

cured;

c) seller is in material breach of this contract and the breach results, or is

likely to result, in material damage to buyer’s reputation and/or the

Australian Government’s reputation;

d) seller is in breach of any of the following clauses: 3.4, 3.7, 3.11, 4.2,

4.3, 4.5, 4.6, 4.7 4.8, 4.9, 7.12, 7.13, 9.1, 9.2, 9.3, 9.4, 9.6, 12, 13,

14.4, 14.5, and the breach is not immaterial;

e) seller fails to give a notice under clause 3.4.3 in circumstances where

the notice was required to be given;

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f) seller gives a notice under clause 3.4.3; buyer (in its discretion)

considers that it has or may be adversely affected by the matters set

out in the notice; and buyer’s right to terminate on the basis of the

matters set out in the notice is not stayed by operation of law;

g) seller fails to notify buyer of a conflict of interest in breach of its

warranty in clause 3.9.1;

h) seller or any seller’s personnel have a conflict of interest that

cannot be managed to the reasonable satisfaction of buyer;

i) seller fails to comply with a direction by buyer under clause 3.9.2;

j) seller is in breach of the warranty in clause 9.4;

k) the improper or illegal conduct of seller or seller’s personnel (whether or not in connection with this contract) results in significant

damage to buyer’s reputation and/or the Australian Government’s

reputation in relation to this contract.

16.6 Termination by seller for default

16.6.1 seller may only terminate this contract in accordance with this clause 16.6.

16.6.2 If buyer fails to comply with its obligation to pay a correctly rendered invoice under clause 11 for more than 60 days after the due date, seller may demand immediate payment by sending a notice to buyer and also

providing a copy of the notice to the invoice address.

16.6.3 If a correctly rendered invoice remains unpaid for a period of 30 days

after the date of a notice from seller under clause 16.6.2 relating to the

invoice, buyer may make a further demand for immediate payment by

sending a notice to buyer and also providing a copy of the notice to the

invoice address. seller must ensure that the notice refers to seller’s right

to terminate this contract under this clause 16.6.

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16.6.4 Subject to clause 16.6.5, if a correctly rendered invoice remains unpaid

for a period of 30 days after the date of a notice from seller under clause

16.6.3, seller may terminate this contract with 5 business days’ notice by

giving a notice to buyer.

16.6.5 seller may not terminate this contract under this clause 16.6 because of

buyer’s failure to pay an invoice if buyer has paid all undisputed amounts

claimed by seller in the invoice and:

a) the issue of whether the disputed amounts are payable under this

contract is an issue or a dispute; and

b) the procedure in clauses 3.10.1 to clause 3.10.11 has commenced but

has not concluded in relation to the issue or dispute.

16.6.6 If buyer refuses to accept a deliverable in breach of this contract and:

a) the issue of whether buyer is required to accept the deliverable is a

dispute; and

b) the procedure in clauses 3.10.1 to clause 3.10.11 has concluded in

relation to the dispute without the dispute being resolved,

seller may notify buyer that it proposes to terminate this contract under

this clause 16.6 because the dispute remains unresolved.

16.6.7 If seller gives buyer a notice under clause 16.6.6 and the dispute remains

unresolved for a further 10 business days, seller may terminate this

contract by giving a notice to buyer. seller must give 5 business days’ notice of termination under this clause 16.6.7.

16.6.8 If seller terminates this contract under this clause 16.6, buyer has no

liability to seller in relation to loss of future or prospective charges or

profits.

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16.7 Consequences of termination

16.7.1 The termination of this contract does not affect any liability of a party to the

other party arising before termination.

16.7.2 In addition to the operation of clause 3.7.9, clause 12.4.1 and clause 14.4.3,

the following clauses have continuing operation and survive the expiry or

termination of this contract: 1.5, 1.6, 3.6, 3.7, 3.8, 3.10, 5.2, 7.6, 7.8, 7.9,

7.10, 7.11.1, 7.12, 7.13, 9, 11, 12, 13, 14, 16.8, 16.9.

16.8 Transition-out plan

16.8.1 This clause 16.8 applies if a transition-out plan is required by Item 47 of

Schedule B.

16.8.2 Within 60 business days of the commencement date (or within such

alternative timeframe as is specified in Item 47 of Schedule B) seller must

prepare a draft transition-out plan substantially in the form of Schedule I and provide the plan to buyer for approval.

16.8.3 Within 20 business days of receiving a draft transition-out plan from seller under clause 16.8.2, buyer must notify seller that:

a) buyer approves the draft transition-out plan; or

b) buyer (acting reasonably) requires changes to the draft transition-out

plan.

16.8.4 If buyer notifies seller under clause 16.8.3 that changes are required to

the draft transition-out plan, seller must amend the draft transition-out plan

in accordance with buyer’s requirements and resubmit the amended draft

transition-out plan to buyer under clause 16.8.2. Clause 16.8.3 applies to

the amended draft transition-out plan.

16.8.5 If buyer approves the transition-out plan under clause 16.8.3, if required by

buyer in a notice, seller must comply with the approved transition-out plan

for a period of 6 months commencing:

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a) 3 months prior to the expiry of this contract; or

b) if the contract is terminated under clause 16.4, clause 16.5 or clause

16.6, 6 months from the date of termination.

16.8.6 If buyer reduces the scope of this contract under clause 16.4 or clause

16.5, seller must, if required by buyer in a notice, comply with the

approved transition-out plan for a period of up to 6 months in relation to

those products and/or services that have been reduced in scope

commencing on the date of the reduction in scope.

16.8.7 During the term, but not more frequently than 4 times each calendar year,

buyer may notify seller that it must update the approved transition-out

plan. If buyer gives seller a notice under this clause 16.8.7, within 20

business days seller must update the approved transition-out plan and

submit the updated transition-out plan to buyer under clause 16.8.2. Clause

16.8.3 applies to the amended transition-out plan. If buyer approves the

amended transition-out plan, seller must comply with the approved

amended transition-out plan.

16.9 General termination assistance

16.9.1 Without limiting seller’s obligations under clause 16.8, following the

termination or expiry of this contract, at buyer’s request in a notice, seller must provide reasonable transition assistance to buyer, including by making

specified personnel and other seller’s personnel available for

discussions with buyer and providing any information relating to the

products or services that is reasonably requested by buyer.

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Executed by the parties as an agreement

Executed for and on behalf of the Commonwealth

of Australia, as represented by [insert name of

buyer] ABN [insert ABN of buyer]

(Signature)

(Name)

(Position)

Date of execution: XX/XX/20XX

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Executed by [insert name of seller] ABN [insert ABN of seller]

in accordance with section 127 of the Corporations Act 2001

(Signature)

(Name)

Director

(Signature)

(Name)

Director/Company Secretary (delete one)

Date of execution: XX/XX/20XX

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Schedule A – Glossary

Term Meaning

acceptance in relation to a deliverable, confirmation by buyer that acceptance tests demonstrate the deliverable meets the acceptance criteria and specifications for the deliverable and that no major defects are apparent in the deliverable

acceptance certificate in relation to a deliverable, a certificate substantially in the form of Schedule E, signed by buyer and seller, certifying that the deliverable complies with the acceptance criteria for the deliverable

acceptance criteria in relation to a deliverable:

(a) if there is an acceptance test plan that applies to the deliverable, the acceptance criteria for that deliverable in the acceptance test plan; or

(b) if there is no acceptance test plan applying to the deliverable, the acceptance criteria for the deliverable set out in Schedule C or, if no acceptance criteria are set out in Schedule C, the requirements for the deliverable set out in this contract

acceptance test plan a plan substantially in the form of Schedule D

acceptance tests in relation to a deliverable:

(a) if there is an acceptance test plan that applies to the deliverable, the acceptance tests for that deliverable in the acceptance test plan; or

(b) if there is no acceptance test plan applying to the deliverable, the acceptance tests for the deliverable set out in Schedule C or, if no acceptance tests are set out in Schedule C, such tests or other activities that buyer (acting reasonably) determines to assess whether the deliverable complies with the acceptance criteria for the deliverable

accountability body the Commonwealth Parliament (including Committees); a Commonwealth Minister; the Auditor-General (including the Australian National Audit Office); the Australian Privacy Commissioner; the Commonwealth Ombudsman; and any person (including a commission or inquiry) whose functions include reviewing, inquiring into, auditing or investigating buyer

accountability obligation any obligation under a law, requirement under Commonwealth policy or request by an accountability body for buyer to provide information relating to this contract

agency a corporate Commonwealth entity or a non-corporate Commonwealth entity (within the meaning of PGPA)

approval a confirmation by buyer given in a notice to seller that a document or action appears to meet the requirements of this contract but does not:

(a) limit seller’s responsibility to ensure the document or action meets the requirements of the contract; or

(b) waive any right buyer has under this contract if the document or action does not meet such requirements.

associated documentation

documentation which is owned by seller or in which seller has rights to sub-license and describes the characteristics of the developed software (including

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Term Meaning

technical, functional and performance characteristics) and/or allows buyer to make full use of the developed software

associated software any software required for the proper functioning and performance of developed software but does not include base software

associated tools tools, object libraries and methodologies owned by seller or in which seller has rights to sub-license that relate to developed software

audit includes investigate and/or review

base software software (including commercial-off-the-shelf (COTS) software) not developed under this contract that is owned by seller or a third party (including open source software) and is licensed on the terms in clause 5.2 and Schedule C

base software configuration services

the services required to create or vary the settings or preferences in base software without making any changes to or creating new source code, as specified in Schedule C

base software customisation services

the services required to change the source code of base software to extend or change the base software’s functionality or features, as specified in Schedule C

base software licence period

the period of the licence for base software as specified in Schedule C

business day any day other than a Saturday, a Sunday or a public holiday in the Australian Capital Territory

buyer the agency named as buyer on the first page of this contract or, if other agency commences performing the functions to which this contract relates because of a machinery of government change, that agency

buyer’s address the address of buyer noted on the first page of this contract

buyer’s confidential information

information in one or more of the following categories:

(a) information described in Item 32 of Schedule B;(b) information of buyer held or accessed by seller that is personal

information, security classified information (including with delimiting markers), information protected by statutory confidentiality provisions, information marked “confidential” (or marked in some other way that indicates it is confidential) and/or information that relates to buyer’s customers, commercial dealings, technology systems, finances, compliance programs and/or security systems and/or procedures;

(c) information developed by seller using information in one of the above categories,

but does not include information in either of the following categories:

(d) information in the public domain (otherwise than as a consequence of a breach of this contract);

(e) information independently held or developed by seller without reference or reliance on any information of buyer held or accessed by seller

buyer’s data any of the following held or accessed by seller in relation to this contract:

(a) buyer’s confidential information;

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Term Meaning

(b) other information or document provided by buyer to seller;(c) information developed by seller that incorporates, modifies or supplements

buyer’s confidential information or other information or document provided by buyer to seller

buyer dependency any action by buyer specified in Schedule C required to enable seller to achieve acceptance of deliverables or the achievement of delivery milestones and includes acceptance testing

buyer’s representative the person named as buyer’s representative in Item 7 of Schedule B, as updated in accordance with clause 3.1.4

buyer’s personnel employees, contractors, customers and visitors of buyer and other persons providing services to buyer at buyer’s premises

buyer’s premises any business or office premises occupied by buyer to carry out its functions

buyer’s systems any computer system used by buyer (including cloud systems) to carry out its functions

charges the charges payable by buyer for seller’s provision of deliverables under this contract, as specified in Schedule G

commencement date the date in Item 4 of Schedule B; or if no date is specified, the date this contract is signed by both parties

commercial exploitation any commercial exploitation, but does not include any use, support, maintenance, modification, enhancement or other activity in relation to the material, where such activities are conducted by a service provider engaged by buyer or another agency to provide services to buyer or another agency on commercial terms

confidential information buyer’s confidential information or seller’s confidential information

conflict of interest any circumstance where seller or one or more seller personnel:

(a) currently has;

(b) is likely in the future to have; or

(c) is likely to be perceived by a reasonable fair-minded third party to have now or in the future,

a personal interest or a duty to a third party that conflicts with the diligent and proper performance of this contract for buyer’s benefit

consultancy services the consultancy services specified in Schedule C

contract delivery licence a world-wide, royalty-free, non-exclusive, non-transferable licence for the term (including the right to sub-license) to use, reproduce, adapt, modify and communicate the material solely for the purpose of performing this contract

contract material material that is delivered or required to be delivered to buyer for the purpose of or as a result of performing its obligations under this contract and includes existing material and new material

contract representative buyer’s representative and seller’s representative

correctly rendered an invoice that:

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Term Meaning

invoice (a) is correctly addressed in accordance with Item 30 of Schedule B;(b) contains amounts calculated in accordance with Schedule G;

(c) relates only to the products and/or services that have been delivered to buyer in accordance with this contract;

(d) contains sufficient detail to enable buyer to identify:

(i) the applicable deliverable or delivery milestone;

(ii) when the deliverable was supplied;

(iii) the amount payable in respect of each item;

(e) if submitted in relation to a deliverable that requires acceptance, is accompanied by all relevant acceptance certificates;

(f) sets out the amount paid by buyer as GST for taxable supplies made under this contract;

(g) is a valid tax invoice in accordance with the GST Act; and

(h) meets any other requirement specified in Schedule G, or as otherwise agreed by the parties in writing

cyber attack any action taken through the use of computer networks or any unauthorised access to or use of a computer system that is intended to have, is likely to have or does have an adverse effect on the security or reliability of data on the system or the accessibility of the system, and includes denial of service attacks

defect a deliverable, or any part of a deliverable, where one or more of the following apply:

(a) it does not conform to specifications;

(b) it has an error;

(c) it is damaged or lost;

(d) it is not fit for buyer’s purposes, as described in this contract;

(e) it adversely affects buyer’s systems;

(f) it otherwise does not comply with the requirements of this contract

delay acceptance of a deliverable or achievement of a delivery milestone later than the due date

deliverable any product, service or other material required to be provided by seller under this contract

delivery time the time by which seller must deliver a deliverable, as specified in Schedule C

delivery location the location to which seller must deliver a deliverable, as specified in Schedule C

delivery milestone a milestone for acceptance of one or more deliverables and/or completion of other activities as specified in Schedule C

developed software base software customisations and/or new software and includes the source code associated with that software

developed software package

developed software, associated documentation and associated tools

documentation the documentation (including publications and aids) required to be provided by

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Term Meaning

seller under this contract, including that information specified in Schedule C

dispute an issue that has been the subject of a notice under clause 3.10.7

due date in relation to a deliverable or a delivery milestone, the date by which the deliverable must be accepted, or the delivery milestone must be achieved, as specified in Schedule C

end date the date in Item 5 of Schedule B or if no date is specified, but a time period is specified, the date that is the last day of that time period, commencing on the commencement date

environmental management system

has the meaning given to the term in the ICT sustainability plan

existing material any material, other than new material, in which a party or a third party holds intellectual property rights, and which is made available by a party for the purpose of this contract

general interest charge rate

the general interest charge rate determined under section 8AAD of the Taxation Administration Act 1953 (Cth) on the day the payment is due, expressed as a decimal rate per day

government purposes any purpose for which the Commonwealth of Australia may make laws or take executive action, including the provision of shared services, but does not include commercial exploitation

GST Act the A New Tax System (Goods and Services Tax Act) 1999 (Cth)

hardware hardware required to be provided by seller to buyer under this contract

hardware support period the period for provision of hardware support services, as specified in Schedule C

hardware support services

the hardware support services specified in Schedule C

harmful code any virus, denial of service, disabling or malicious device or code, ‘worm’, ‘trojan’, ‘time bomb’, or other harmful or destructive code, but does not include any ‘software lock’ or other technical mechanism that is included to manage the proper use of any software

ICT information and communications technology

ICT sustainability plan the Australian Government’s ICT sustainability plan 2010-2015 or any successor plan

Indigenous enterprise an organisation that is 50 per cent or more Indigenous owned that is operating a business

individual contractor (a) an individual engaged by seller who is managed and performs duties in a similar way to seller’s employees

(b) an individual engaged by a seller group company who is managed and performs duties in a similar way to seller group company’s employees

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Term Meaning

invoice address the address for invoices specified in Item 30 of Schedule B, or any substitute address notified by buyer to seller at any time

installation services the services required to install hardware or software by seller so the software and/or hardware is operable in accordance with the specifications, as set out in Schedule C

integration services the integration services required to be provided by seller to buyer as set out in Schedule C

intellectual property rights

all intellectual property rights, whether or not such rights are registered or capable of being registered, including but not limited to, the following:

(a) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks), and domain names;

(b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and

(c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere

issue (a) a disagreement between the parties about the correct interpretation of this contract; and/or

(b) a failure by a party to comply with its obligations under this contract; and/or

(c) a breach of a warranty given by a party under this contract

law the statute law of the Commonwealth and of Australian States and Territories in force from time to time (including regulations and instruments of a legislative character and court rules)

legal services directions the Legal Services Directions made under section 55ZF of the Judiciary Act 1903 (Cth)

licence a world-wide, royalty free, non-exclusive licence including the right to sub-license

licence metrics the licence metrics that apply to base software (e.g. number named or concurrent users etc), as specified in Section 1 of Schedule C

major defect any defect that is not a minor defect

managed services the managed services specified in Schedule C

material any software, firmware, data, documented methodology or process, tools, object libraries, documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any intellectual property rights

maximum charges payable

the GST inclusive amount specified as the maximum charges payable in ScheduleG

minor defects the defects (if any) categorised as minor defects in the acceptance test plan

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Term Meaning

moral rights (a) a right of attribution of authorship;

(b) a right not to have authorship falsely attributed; or

(c) a right of integrity of authorship

new material any material created by seller that is delivered or required to be delivered to buyer for the purpose of or as a result of performing its obligations under this contract

new release software produced primarily to extend, alter or improve the software by providing additional functionality or performance enhancement (whether or not defects in the software are also corrected) while still retaining its original designated purpose

new software new software features (including source code) to meet the specifications

new software development services

the services required to develop new software specified in Schedule C

notice a communication that meets the requirements of clause 3.2.1

notify to send a notice

open source software software available under a licence which meets the criteria of the Open Source Definition published by the Open Source Initiative at http://www.opensource.org, and includes the forms of creative commons licences published as the Creative Commons Legal Code for Australia at http://www.creativecommons.org

option period the period (if any) specified in Item 6 of Schedule B

party buyer or seller

payment milestone a payment milestone specified in Schedule G that is payable when the applicable payment milestone has been achieved

perpetual in relation to base software, means the licence extends beyond the termination or expiry of this contract and is not dependent or conditional on buyer contracting with seller after the expiry or termination of this contract for further provision of the base software or software support or payment by buyer of any additional fees.

personal information the same meaning as in the Privacy Act 1988 (Cth)

PGPA Public Governance, Performance and Accountability Act 2013 (Cth)

preventative maintenance services

the preventative maintenance services specified in Section 5 of Schedule C

product a software or hardware product to be sold by seller to buyer under this contract, as specified Schedule C

resource augmentation services

the resource augmentation services specified in Schedule C

seller the person named as seller on the first page of this contract

seller group company a “related body corporate” of seller (within the meaning of that term in the Corporations Act 2001 (Cth))

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Term Meaning

seller’s confidential information

information described in Item 33 of Schedule B, any information provided by buyer to seller under this contract in relation to seller’s security systems and processes and the information in Schedule F but not the total value of this contract or any other information relating to this contract to which an accountability obligation applies

seller’s personnel a subcontractor and officers, employees or independent contractors of seller, a seller group company or subcontractors who:

(a) are involved in the delivery of services under this contract and/or the performance of seller’s obligations under this contract; and/or

(b) have access to buyer’s premises, buyer’s systems or buyer’s data in relation to the performance of this contract

seller’s premises any premises of seller (including the premises of seller’s personnel) where buyer’s data is stored or where components of seller’s systems are located

seller’s records any records that seller is required to maintain under this contract

seller’s representative the person named as seller’s representative in Item 7 of Schedule B, as updated in accordance with clause 3.1.4

seller’s systems any system of seller (including the systems of seller’s personnel) that accesses, transmits or stores buyer’s data

service a service to be sold by seller to buyer under this contract, as specified in Schedule C

shared services the provision of products and/or services by an agency to another agency (whether or not a payment is made in relation to the provision of the products and/or services)

software software (including relevant material to support that software) required to be provided by seller to buyer under this contract, and includes developed software (and associated software) and base software

software support period the period for provision of software support services, as specified in Section 4 of Schedule C

software support services

the software support services specified in Schedule C

specifications the technical, functional, non-functional and other operational or performance characteristics required of a deliverable, as specified in Schedule C and includes any requirements for a system

specified personnel seller’s personnel who are named at Item 12 of Schedule B, as amended in accordance with clause 4.2.5

specified personnel unavailability period

10 business days or a longer period specified in Item 15 of Schedule B

start date the date for commencement of a particular service, as specified in Schedule C

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Term Meaning

subcontract a contract or arrangement between seller and a third party for the delivery of products or services to buyer under this contract, but does not include a contract or arrangement between seller and a seller group company or between seller and an independent contractor

subcontractor a party to a subcontract, other than seller

sub-license the right to allow any person to exercise any of the rights including do any of the activities authorised under the licence and, in relation to buyer, includes the right to engage any person including outsource suppliers to do any such activities on behalf of buyer without consent and without any financial consequences for any person

system the combination of one of more products and system implementation services to be supplied by seller that when installed and implemented forms an ICT system that meets the specifications for the system specified in Schedule C

system implementation services

the services required to be provided by seller to implement a system, as specified in clause 6.2 and Schedule C

taxes all taxes, duties and government charges

term defined in clause 2.1.1; subject to modification in accordance with clause 2.1.2

third party any person other than buyer or seller

training services the training services specified in Schedule C

update software which has been produced primarily to overcome defects in, or to improve the operation of, the software without significantly altering the software specifications, whether or not the software has also been extended, altered or improved by providing additional functionality or performance enhancement

use [base software] in relation to base software and associated documentation, includes, buyer:(a) integrating, loading, installing, compiling, configuring or running the software;

(b) making backups of the software;

(c) using, copying, amending or adapting any documentation relating to the software

[existing material] in relation to existing material (other than base software, associated software or buyer’s existing material) includes buyer using, reproducing, adapting, modifying, communicating that material

[associated software] in relation to associated software and associated documentation, includes buyer:

(a) using, supporting, maintaining, modifying and enhancing that associated software; and

(b) using, reproducing, revising, adapting and modifying the technical or user documentation about that associated software.

warranty period in relation to a deliverable, the warranty period for that deliverable specified in Schedule C

WGEA Workplace Gender Equality Act 2012 (Cth)

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Schedule B– Contract Details

ItemNumber

Related clause

Subject Description

Purpose, interpretation and technical contract issues

1 1.4 agency access [if other agencies are not able to access this contract insert “no agency access, clause 1.4 does not apply” otherwise insert “clause 1.4 applies”]

2 1.6 seller as trustee [“not applicable” or “seller is entering this contract in its capacity as trustee of the [insert name] trust”]

3 1.7.2 seller to purchase products and services on behalf of buyer

[“not applicable” or “seller is authorised to purchase the following products and services on behalf of buyer on the following conditions [insert detailed conditions]”]

Contract term

4 2.1.1 commencement date [insert commencement date or “the date that this contract is signed by both parties”]

5 2.1.1 end date [insert end date, or if the contract has a particular term (for example, 3 years) insert that time period]

6 2.1.3 option period [insert “not applicable” or the total option period]

Contract governance

7 3.2.1 contract representatives

buyer’s representativename:

position:

address:

email:cc email:

seller’s representativename:

position:

address:

email:

8 3.3 meetings [insert “in accordance with clause 3.3” or insert requirements for meetings]

9 3.6.3 prohibition on seller referencing contract

[“not applicable” or “clause 3.6.3 does not apply – buyer may not publish contract details”]

10 3.10.8 mediation [“not applicable” or specify what disputes must be referred to mediation if required by a party and the full process for the mediation]

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ItemNumber

Related clause

Subject Description

11 3.10.9 expert determination [“not applicable” or specify what disputes must be referred for expert determination if required by a party and the full process for the expert determination]

Personnel

12 Glossary and 4.2.1

specified personnel Name Level Role

15 Glossary and b)

specified personnel unavailability period

[insert “10 business days” or a longer period of time]

16 4.3.1 approved subcontractors

Name ABN Role

19 4.5.1 security clearances and other clearances

[“not applicable” or specify requirements for security clearances and any other clearance processes that must be completed by seller’s personnel such as ESC]

General delivery requirements and warranties

20 7.4 seller provided facilities

[insert details if seller is not required to establish and maintain all facilities necessary for its performance of the contract]

21 7.7 transition-in plan [insert “not applicable” or “transition-in plan required with 10 business days of the commencement date”]

Acceptance

22 8.2 acceptance test plan [“not applicable” or “plan to be provided to buyer for approval no later than [insert] business days after the commencement date”]

Intellectual property and moral rights

23 9.2.2 IP ownership model for a developed software package

Model A (seller ownership) ☐Model B (buyer ownership) ☐

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ItemNumber

Related clause

Subject Description

24 9.3.4 IP ownership model for new material (other than a developed software package)

Model A (buyer ownership) ☐Model B (seller ownership) ☐

Buyer assistance to seller

25 10.1.1 Access to buyer material

[insert “not applicable” or insert details of buyer material to be provided to seller]

26 10.2.1 Access to buyer personnel

[insert “not applicable” or insert details of buyer personnel to be made available to seller]

27 10.3.1 Use of buyer facilities [insert “not applicable” or insert details of buyer facilities that can be used by seller]

28 10.4.1 Access to buyer facilities

[insert “not applicable” or insert details of buyer facilities that seller can access]

29 10.5 buyer site preparation [insert “not applicable” or details of the site specifications that buyer must meet in preparing the site]

Charges and payment

30 11.2.1 invoice address name:

position:

address:

email:cc email:

Information management

31 12.1.2 privacy policies and guidelines

[insert “not applicable” or specify any privacy policies and/or guidelines that seller must comply with]

32 12.2 and Glossary

buyer’s confidential information

[insert “In accordance with definition of buyer’s confidential information and the following: [insert any specific information to come within the definition of buyer’s confidential information] OR insert “in accordance with definition of buyer’s confidential information”]

33 12.2 and Glossary

seller’s confidential information

[insert “In accordance with definition of seller’s confidential information and the following: [insert any specific information to come within the definition of seller’s confidential information] OR insert “in accordance with definition of seller’s confidential information”]

34 12.3.1 requirements for holding buyer’s data

[insert any additional requirements on seller for holding buyer’s data, or insert “no additional requirements’]

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ItemNumber

Related clause

Subject Description

35 12.3.8 deletion of buyer’s data

[insert “not applicable” unless seller is permitted to retain buyer’s data after the expiry or termination of this contract – in which case specify what is permitted and any conditions]

36 12.5 accessing buyer’s confidential information outside Australia

[insert “not applicable” unless seller is permitted to transfer, store or access buyer’s confidential information outside Australia – in which case specify what is permitted and any conditions]

Security

37 13.1.1 and 13.1.2

buyer’s security policies

[insert “not applicable” or specify any security policies that seller must comply with]

Liability

38 14.2.1 and 16.1.3

limitation of liability [insert “not applicable” or if liability of the parties is limited, specify the amount of the limitation]

39 b) public liability insurance

[specify value]

40 c) professional indemnity insurance

[specify if required and, if so, the value]

41 d) product liability insurance

[specify if required and, if so, the value]

42 e) other insurance [specify if any other insurance required and, if so, type and the value]

43 14.4.3 period of insurance [specify a period between 2 years and years after the expiry or termination of this contract or state: ‘in accordance with clause 14.4.3]

44 14.5.1 guarantee [insert “not applicable” or “guarantee required” [and the name of the guarantor if known]]

45 14.5.4 bank guarantee [insert “not applicable” or “bank guarantee required in the amount of $xx”]

Management and performance issues

46 15.3 liquidated damages [insert “not applicable” or if liquidated damages are payable for delay in acceptance of a deliverable or the achievement of a delivery milestone, specify for each such deliverable or delivery milestone the daily liquidated damages and the liquidated damages cap for that deliverable or delivery milestone]

Changing and ending the contract

47 16.8.1 transition-out plan [insert “not applicable” or “transition-out plan required’ and

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ItemNumber

Related clause

Subject Description

specify any period for providing the plan that is different to that in clause 16.8.1]

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Schedule C – Requirements

Products [select if required]

☐ base software supply

☐ hardware supply

Services [select if required]

☐ system implementation services

☐ software support services

☐ hardware support services

☐ managed services

☐ consultancy services

☐ resource augmentation services

☐ training services

Other [select if required]

☐ design

☐ project plan

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Products

Section 1 Base software supply (clause 5.2)

description of software – [list all base software being supplied including name, version number, owner of software, whether open source etc)]

software specifications – [insert the specifications for the software that seller must meet or state: ‘in accordance with Attachment 1’]

documentation – [insert details of the documentation to be provided with the

base software]

base software licence period – [insert licence period or state ‘perpetual’]

licence terms – [insert ‘as per clause 5.2’ (which is the default) or specify alternative terms]

licence metrics – [insert licence metrics for the base software]

processor restrictions – [insert details of any processor to which the software is restricted or state ‘no restrictions’]

assignment of licence to other agency – [see clause 5.2.2 and insert yes/no]

warranty period – [insert warranty period for the base software]

delivery location – [insert details of the delivery location]

delivery time – [insert the delivery time or state ‘in accordance with Attachment

2’]

acceptance criteria – [insert details of acceptance criteria or state: ‘in accordance with acceptance test plan’]

acceptance testing – [insert details of acceptance testing or state ‘in accordance with acceptance test plan’]

buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4]

due date(s) – [insert due date(s) for seller achieving acceptance of the deliverable(s) or state ‘in accordance with Attachment 2’]

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escrow – [As per clause 7.13, insert details of any escrow agreement required including escrow agent details or insert ‘not applicable’]

Section 2 Hardware supply (clause 5.3)

Description of hardware – [list all hardware being supplied including name, version number, manufacturer of hardware etc]

hardware specifications – [insert the specifications for the hardware that seller must meet or state ‘in accordance with Attachment 1’]

documentation – [insert details of the documentation to be provided with the hardware]

warranty period – [insert warranty period for the hardware]

delivery location – [insert details of the delivery location]

delivery time – [insert the delivery time or state ‘in accordance with Attachment 2’]

acceptance criteria – [insert details of acceptance criteria or state: ‘in accordance with acceptance test plan’]

acceptance testing – [insert details of acceptance testing or state ‘in accordance with acceptance test plan’]

buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4]

due date(s) – [insert due date(s) for seller achieving acceptance of the deliverable(s) or state ‘in accordance with Attachment 2’]

time for transfer of title to buyer – [insert either ‘upon acceptance’ or ‘upon full payment’]

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Services

Section 3 System implementation services (clause 6.2)

start date – [insert start date for services]

specifications for the system – [insert the specifications for the system that seller must meet or state ‘in accordance with Attachment 1’. The specifications for the system may include the specifications for the software and/or hardware (as applicable) as well as integration requirements]

design approval date – [insert date by which seller must obtain buyer approval of the design or state ‘in accordance with Attachment 2’]

installation services – [insert details of required installation services for the software and/or hardware or refer to an Attachment]

integration services – [insert details of required integration services for the software and/or hardware or refer to an Attachment. This may include integration with software and/or hardware supplied under this contract or another contract]

base software configuration services – As required to meet the specifications for the system including [insert details of services]

base software customisation services – As required to meet the

specifications for the system including [insert details of services]

new software development services – As required to meet the specifications

for the system including [insert details of services]

developed software documentation – Without limiting clause c), seller must

provide [insert details of documentation that must be supplied by seller]

developed software package and associated software – As per clause b),

seller must provide the following associated documentation, associated tools

and existing material [insert details]. Also specify any associated software.

escrow of developed software – [As per clause 7.13, insert details of any escrow agreement required including escrow agent details or insert ‘not applicable’]

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delivery of developed software source code – [As per clause 6.2.7, insert details of requirements for delivery of source code to buyer]

warranty period – [insert warranty period for the system if different to that stated in clause 6.2.5, otherwise state: ’90 days as per clause 6.2.5]

delivery location – [insert details of the delivery location]

delivery time – [if only installation services are required, specify the delivery time. If any other system implementation services are required state: ‘in accordance with Attachment 2’]

acceptance criteria – [insert details of acceptance criteria or state: ‘in accordance with acceptance test plan’]

acceptance testing – [insert details of acceptance testing or state ‘in accordance with acceptance test plan’]

buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4]

due date(s) – [insert due date(s) for seller achieving acceptance of the deliverables or state ‘in accordance with Attachment 2’]

Section 4 Software support services (clause 6.3)

start date – [insert start date for services]

specifications – [insert details of software support services including requirements for updates and new releases and help desk services]

updates and new releases –[insert terms for the provision of updates and new releases] [As per clause a)(ii), if maximum support period for non-current software is different to 18 months, specify that period here]

service levels – [insert details of service levels including response times, defect resolution times etc]

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Section 5 Hardware support services (clause 6.4)

start date – [insert start date for services]

specifications for preventative maintenance services – [insert details of preventative maintenance service requirements including the times or frequency of services]

specifications for defect correction services – [insert details of defect correction service requirements including the times or frequency of services]

Specifications for helpdesk service – [insert details of any helpdesk services]

storage of seller materials – [if materials cannot be stored on buyer site (see clause 6.4.8), specify details here. Otherwise state: ‘no change to clause 6.4.8]

maintenance records – [if seller must keep full records of services, specify details here or insert: ‘no change to clause 6.4.9]

service levels –[insert details of service levels including response times, defect

resolution times etc]

Section 6 Managed services (clause 6.5)

Managed service arrangements are complex and additional terms and conditions will

need to be included in this Section 6 to reflect the specific managed services

required by buyer and to manage the risks of these services

start date – [insert start date for services]

specifications – [insert the details of services including any documentary deliverables]

additional terms and conditions – [insert additional terms and conditions to reflect

the specific managed services required by buyer and to manage the risks of

these services]

service levels – [insert details of any service levels]

buyer assistance – [insert details of any buyer assistance that will be provided]

warranty period – [insert warranty period for the services]

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delivery location – [insert details of the delivery location]

delivery time – [specify the delivery time or state ‘in accordance with Attachment 2’]

acceptance criteria – [insert details of acceptance criteria or state: ‘in accordance with acceptance test plan’]

acceptance testing – [insert details of acceptance testing or state ‘in accordance with acceptance test plan’]

buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4]

due date(s) – [insert due date(s) for seller achieving acceptance of the deliverables or state ‘in accordance with Attachment 2’]

Section 7 Consultancy services (clause 6.6)

start date – [insert start date for services]

specifications – [insert the details of services including any documentary deliverables]

service levels – [insert details of any service levels]

warranty period – [insert warranty period for the services]

buyer assistance – [insert details of any buyer assistance that will be provided]

delivery location – [insert details of the delivery location]

delivery time – [specify the delivery time or state ‘in accordance with Attachment 2’]

acceptance criteria – [insert details of acceptance criteria or state: ‘in accordance with acceptance test plan’]

acceptance testing – [insert details of acceptance testing or state ‘in accordance with acceptance test plan’]

buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4]

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due date(s) – [insert due date(s) for seller achieving acceptance of the deliverables or state ‘in accordance with Attachment 2’]

Section 8 Resource augmentation services (clause 6.7)

start date – [insert start date and finish date for services]

specifications – [insert details of services and the skills, experience and

qualifications of personnel]

delivery details – [insert details of the delivery location]

buyer organisational framework – [insert details of buyer’s organisational and

service management arrangements as per clause b) (including requirements for

how seller’s personnel will fit into buyer’s organisational structure and which

buyer personnel will direct and/or supervise them]

Section 9 Training services (clause 6.8)

start date – [insert start date for services]

specifications – [insert the details of services including any documentary deliverables]

service levels – [insert details of any service levels]

warranty period – [insert warranty period for the services]

buyer assistance – [insert details of any buyer assistance that will be provided]

delivery location – [insert details of the delivery location]

delivery time – [specify the delivery time or state ‘in accordance with Attachment 2’]

acceptance criteria – [insert details of acceptance criteria]

acceptance testing – [insert details of acceptance testing]

buyer acceptance period – [insert alternative period to that in clause 8.1.4 or state: “as per clause 8.1.4]

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due date(s) – [insert due date(s) for seller achieving acceptance of the deliverables or state ‘in accordance with Attachment 2’]

Section 10 Other items (clauses 7.2 and 7.3)

Other items delivery date date by which must be approved

Project Plan [insert] [insert]

Design [insert] [insert]

Attachment 1 (Specifications)

[if there are detailed specifications, including if there are specifications for a system, include details here]

Attachment 2 (Schedule)

[if there are a significant number of deliverables and delivery milestones, include details here. Below is an example of tables that could be used]

Deliverables

deliverable reference # deliverable description delivery date due date for acceptance

delivery milestone reference #

delivery milestone description

conditions for achieving the delivery milestone

delivery milestone due date

[generally the conditions for achieving a delivery milestone would be achieving acceptance of one or more deliverables e.g. acceptance of deliverables 2,3 and 5]

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Schedule D– Form of Acceptance Test Plan

Part A – General

Scope of plan [describe what deliverables or delivery milestones are covered by this plan]

Testing methodology

seller tests

Test environment – seller tests

Test data for seller tests

buyer’s right to observe and receive test reports for seller tests

[if buyer has the right to observe and review test reports for seller’s tests, specify those rights here]

seller’s obligation to give buyer notice of seller tests

[insert period of notice that seller has to provide to buyer before seller conducts acceptance testing]

Timetable for seller tests

buyer tests

Test environment – buyer tests

Test data for buyer tests

Timetable for buyer tests

Resources required for buyer tests

[specify if a particular minimum number of buyer resources or particular skillsets are required for buyer tests]

Minimum time required in schedule for buyer tests

[if buyer requires a minimum period for testing, specify that period here]

Periods when buyer testing cannot be undertaken

Defects defined as “minor defects”

[if buyer will accept deliverables with defects of low severity, specify that here – i.e. “minor defects are defects categorised by buyer (acting reasonably) as S3 or S4”]

Documentation requirements for testing and logging requirements for defects

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Part B – Deliverables/Delivery Milestones

[complete a table in the form below for each deliverable or delivery milestone]

deliverable/delivery milestone name and identification number

acceptance criteria

specifications

Prerequisites for seller testing [this could include the submission of documentation by buyer to seller]

Prerequisites for buyer user acceptance testing

[this would normally include the successful completion of buyer testing, the resolution of defects and the provision of seller’s test reports to buyer]

Prerequisites for acceptance into production

Post production validation testing

[specify whether this is required and seller’s obligations if this testing identifies defects]

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Schedule E – Form of Acceptance Certificate

Acceptance Certificate

This is an acceptance certificate for the deliverable(s)/delivery milestone(s) identified below. The certificate is issued under the contract between [name of buyer] ABN [ABN of buyer] (buyer) and [name of seller] ABN [ABN of seller] (seller) dated

[date of contract] reference [insert buyer’s reference number for contract] (contract).

In this certificate, terms in bold italic have the same meaning as in the contract, unless otherwise defined in this certificate.

Deliverable/delivery milestone

deliverable/delivery milestone description reference number

seller certification

certification signed on behalf of buyer date

seller certifies that, having conducted appropriate testing, the deliverable(s)/delivery milestone(s) identified above meet the requirements of the contract

[signature, name and position]

buyer acceptance

acceptance signed on behalf of seller date

buyer accepts the deliverable(s)/delivery milestone(s) identified above

[signature, name and position]

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Schedule F – Project Plan[insert the agreed project plan that complies with the requirements in clause 7.2]

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Schedule G – Charges [Insert details of all relevant charges, costs or fees for the performance of the products and/or services and when each item is payable. All charges specified in this schedule are exclusive of GST unless otherwise specified]

Maximum Charges Payable

Clause references

11.6.1, 16.4.3 – The maximum value of this contract is $[insert] (inclusive of GST)

Time based charges

Applicable services

[specify the services subject to time based charges e.g. consultancy services]

Time based pricing

[insert either “not applicable” or “seller may invoice on a time basis up to a total

maximum amount of [insert] ex GST]

Rates

The following rates apply for seller’s personnel:

Level/position Daily rate (GST exclusive) Hourly rate (ex GST)

Expenses

[set out any permitted expenses or insert ‘seller is not entitled to be reimbursed for expenses]

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Invoicing frequency

seller may invoice [insert frequency]

Variation to pricing

[if charges are subject to an adjustment mechanism, for example, the consumer price index, set out the mechanism or insert “not applicable”]

Charges for products

Applicable products

[specify the products to which the charges apply e.g. hardware and/or base software]

Charges

product description unit charge (GST exclusive) number of units

Total charges [insert $ ex GST]

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Charges for payment milestones

Applicable products and/or services

[specify the products and/or services that will be charged using payment milestones]

payment milestone reference number

payment milestone description

conditions for achieving the payment milestone

payment milestone amount (ex GST)

[e.g. #1] [e.g. achievement of delivery milestone 1]

Total charges [insert $ ex GST]

charges variation formula

charge variation formula (clause 16.3.2)

[if there is pricing mechanism for contract variations insert here or state “not applicable”]

service rebates

Applicable services –

[insert details of the service rebates payable for failure to meet the service levels in Schedule C, including the method of calculating the service rebates and any caps on the service rebates]

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Schedule H – Form of Transition-in Plan This is a transition-in plan under the contract between [name of buyer] ABN [ABN of

buyer] and [name of seller] ABN [ABN of seller] dated [date of contract] reference

[insert buyer’s reference number for contract] (contract).

In this plan, terms in bold italic have the same meaning as in the contract, unless

otherwise defined in this plan.

seller must comply with this plan once the plan is approved by buyer.

Period of operation

This plan applies from the date of approval by buyer until the earlier of:

the date that seller complies with all obligations under this plan; and

the date that buyer notifies seller that no further action is required under this

plan.

[insert appropriate topics in the context of the project – the topics below are examples and do not form part of the template]

Personnel related obligations

Topic seller’s obligations Date that obligations must be completed

seller personnel briefings

clearances

confidentiality deeds

buyer policies and procedures

flow down of obligations to subcontractors

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Topic seller’s obligations Date that obligations must be completed

secure storage for buyer’s data

Governance related obligations

Topic seller’s obligations Date that obligations must be completed

risk management plan

project reporting obligations

project documentation requirements

governance meetings

operational meetings

stakeholder meetings

Delivery related obligations

Topic seller’s obligations Date that obligations must be completed

outgoing vendors

clarification of requirements

acceptance test plan

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Schedule I – Form of Transition-out PlanThis is a transition-in plan under the contract between [name of buyer] ABN [ABN of

buyer] and [name of seller] ABN [ABN of seller] dated [date of contract] reference

[insert buyer’s reference number for contract] (contract).

In this plan, terms in bold italic have the same meaning as in the contract, unless

otherwise defined in this plan.

seller must comply with this plan once the plan is approved by buyer.

[insert appropriate topics in the context of the project – the topics below are examples and do not form part of the template]

Topic seller’s obligations Date that obligations must be completed

reasonable assistance to prevent interruption or disruption

return of buyer’s data

training of buyer’s personnel

knowledge transfer

access to seller’s personnel

data migration

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Schedule J – Form of Change OrderThis is a change order to the contract between [name of buyer] ABN [ABN of buyer] and [name of seller] ABN [ABN of seller] dated [date of contract] reference [insert

buyer’s reference number for contract] (contract).

In this change order, terms in bold italic have the same meaning as in the contract, unless otherwise defined in this change order.

Part A

[to be completed by party proposing change]

Change order number [insert reference number]

Date proposed

Description of proposed change

Reason for proposed change

Effect on delivery times, risk, implementation, documentation and users of the system

Effect on charges

Changes to buyer dependencies

Effect on service levels

Part B

Contract clauses affected

Marked up clauses showing proposed changes

Date of effect of changes

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Agreed by the parties

Signed in behalf of buyer

(Signature)

(Name and position)

Date:

signed on behalf of seller

(Signature)

(Name and position)

Date:

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Schedule K – Form of Agency OrderTo: [name of seller’s representative],

[name of seller] ABN [ABN of seller] (seller)

This is an agency order under clause 1.4 of the contract between seller and [name of

buyer] ABN [ABN of buyer] dated [date of contract] reference number [buyer’s

reference number] (principal contract).

[name of ordering agency] ABN [ABN of ordering agency] (ordering agency) orders

the following products and services from seller, on the terms of the principal contract unless otherwise agreed by seller and ordering agency:

[specify products and/or services ordered].

seller and ordering agency must enter into a separate contract for the provision of

the products and/or services that have been ordered.

All communications regarding this order should be sent to [insert name and contact

details for ordering agency’s representative].

Executed on behalf of the Commonwealth

of Australia, as represented by [insert name

of ordering agency] ABN [insert ABN of

ordering agency]

Signature:

Name and position:

Date:

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Schedule L – Form of Deed of ConfidentialityTHIS DEED POLL is made on [date]

for the benefit of the Commonwealth of Australia represented by [name of buyer] ABN [buyer’s ABN], of [buyer’s address] (buyer)

by

[name of person signing deed] of [address of person signing deed] (confidant)

as an employee of

[name of seller] ABN [seller’s ABN] (seller)

Background

A seller is providing products and/or services to buyer under a contract dated [date of contract] relating to [subject of contract] reference number [add buyer’s reference number for contract] (principal contract).

B seller has confidentiality obligations under the principal contract in relation to buyer’s confidential information.

C As an employee of seller involved in the performance of the principal contract, confidant may become aware of buyer’s confidential information.

D To ensure buyer’s confidential information remains confidential, confidant has agreed to sign this deed poll for the benefit of buyer.

Operative part

3 Definitions

3.1 In this deed poll, terms in bold italics not otherwise defined have the

following meanings:

(a) buyer’s confidential information means information:

i. of buyer that is personal information, security classified information

(including with delimiting markers), information protected by statutory

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confidentiality provisions, information marked “confidential” (or

marked in some other way that indicates it is confidential) and/or

information that relates to buyer’s customers, commercial dealings,

technology systems, finances, compliance programs and/or security

systems and/or procedures; and

ii. within the definition of the term “buyer confidential information” in the

principal contract,

that is or was held or accessed by confidant, but does not include

information:

i. in the public domain (otherwise than as a breach of this deed poll or

the principal contract); or

ii. independently held or developed by confidant without reference or

reliance on any information of buyer.

(b) personal information has the same meaning as in the Privacy Act 1988 (Cth).

4 Confidant obligations

4.1 Unless otherwise required by law, confidant must:

(a) keep buyer’s confidential information confidential;

(b) not use or disclose buyer’s confidential information for any purpose other than the performance of the principal contract;

(c) not publicly disclose buyer’s confidential Information except with the express written consent of buyer; and

(d) if requested by buyer, immediately return all buyer’s confidential Information in confidant’s possession to buyer or destroy or delete such buyer’s confidential information (and provide a statutory declaration to buyer that this has been done).

4.2 confidant must keep buyer’s confidential Information secure.

4.3 confidant must notify buyer in writing immediately if he or she is required

by law to disclose any of buyer’s confidential Information or and of

buyer’s confidential Information is lost, stolen or accessed by an

unauthorised person.

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4.4 confidant acknowledges that damages may not be an adequate remedy for

a breach of this deed poll and that buyer may be entitled to injunctive relief.

5 Conflict of interest

5.1 confidant warrants that he or she has no conflict of interest in relation to the

performance of the principal contract, other than as notified in writing to

buyer.

6 Governing law

6.1 This deed poll is governed by the law of the Australian Capital Territory and

confidant agrees to submit to the non-exclusive jurisdiction of the Courts of

the Australian Capital Territory in respect of all matters relating to this deed

poll.

Executed as a Deed Poll

Signed, Sealed and Delivered by

[name of confident] in the presence of:

Signature of witness

Name of witness

Signature of confidant

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Schedule M – Form of Guarantee

Deed of Guarantee

Date

Buyer

Name: The Commonwealth of Australia represented by [insert agency name]

ABN: [insert buyer’s ABN]

Address: [insert buyer’s address]

Short form name: buyer

Seller

Name: [insert seller’s full legal name]

ABN: [insert seller’s ABN]

Address: [insert seller’s address]

Short form name: seller

Guarantor

Name [insert guarantor’s name]

ABN/company number [insert guarantor’s ABN, or company number if it is not

incorporated in Australia and has no ABN]

Address [insert guarantor’s address]

Short form name guarantor

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BackgroundA: buyer and seller have entered into a contract dated [insert date] (contract)

under which seller will provide products and/or services to buyer.

B: Under the contract, seller has agreed to procure this guarantee from guarantor for buyer’s benefit.

C: guarantor is the [ultimate parent company] of seller and has agreed to provide this guarantee for buyer’s benefit.

D: guarantor has reviewed the contract.

The parties agree as follows:

1 Interpretation

1.1 Words in this deed in bold italics not otherwise defined have the have the

following meanings:

(a) business day means any day other than a Saturday, Sunday or a public holiday in the Australian Capital Territory, Australia;

(b) deed representative means, in relation to a party, the deed representative of that party specified or determined in accordance with clause7;

(c) deed representative’s address means the address of a deed representative specified or determined in accordance with clause7;

(d) notice means a written communication that complies with clause 6; and

(e) party means any of buyer, seller and guarantor and parties means all them.

1.2 In this deed, unless otherwise required by the context:

(a) words in the singular include the plural and vice versa;

(b) “person” includes a corporate or non-corporate Commonwealth entity, a company, a partnership and an unincorporated organisation; and

(c) a reference to a clause means a clause of this deed.

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2 Expiration

2.1 This deed expires when seller has complied with all of its obligations under

the contract. guarantor will then be released from liability under this deed.

3 Guarantee

3.1 guarantor unconditionally and irrevocably guarantees to buyer the full

performance by seller of all of its obligations under the contract, including

obligations to pay money to buyer.

3.2 If seller does not perform its obligations under the contract in a timely

manner, buyer may by notice demand that guarantor performs those

obligations, provided that buyer has first notified seller that it proposes to

make a demand on guarantor under this clause. If buyer makes a demand

under this clause 3.1, guarantor must promptly comply with that demand.

3.3 buyer is not required to enforce its rights against seller or any other person

before enforcing its rights against guarantor under this deed.

3.4 guarantor’s guarantee under this clause 3:

(a) is a continuing obligation despite any intervening payment, settlement or judgment;

(b) applies in relation to seller’s obligations under the contract, even if the contract is varied without notice to, or the consent of, guarantor;

(c) applies even if seller becomes insolvent, is wound up or placed under any form of external administration; and

(d) applies even if buyer grants seller additional time, waives any right it has against seller, releases any other guarantee or does any other act that would otherwise affect its rights against guarantor under this deed.

3.5 guarantor is entitled to the benefit of all defences and limitations on liability

that seller has under the contract and guarantor’s liability to buyer under

this clause will not exceed seller’s liability to buyer.

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4 Indemnity

4.1 guarantor indemnifies buyer against buyer’s costs (including legal costs

on a full indemnity basis) of enforcing its rights under this deed.

5 Assignment

5.1 buyer may assign its rights under this deed.

6 Notices

6.1 Subject to clause 7.3, a communication from one party to another party

relating to this deed must be:

(a) in writing;

(b) sent in hard-copy or by email;

(c) (in the case of a hard-copy communication) signed by, or (in the case of an email communication) sent by, the sending party’s deed representative;

(d) addressed to the other party’s deed representative;

(e) in the case of a hard-copy communication, sent by express mail or courier or hand delivered to the receiving party’s deed representative’s address; and

(f) in the case of an email communication, sent by email to the receiving party’s deed representative’s address.

6.2 A hard-copy communication under this clause 6 is taken to be received

when it is delivered by hand or courier or, if it is posted, 3 business days

after the date of posting (for within country post) or 10 business days after

the date of posting (for international post).

6.3 An email communication is taken to be received when it reaches the

receiving party’s email server, unless the sending party receives an error

message indicating that the receiving party’s deed representative has not

received the message.

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7 Contract Representative Addresses

7.1 Subject to clauses 7.2 and 7.3, the name and address of the deed representative of each party is as follows:

7.2 buyer’s deed representative

Name:

Title:

Address:

Email:

seller’s deed representative

Name:

Title:

Address:

Email:

guarantor’s deed representative

Name:

Title:

Address:

Email:

7.3 A party may update its deed representative or its deed representatives’

address by notifying the other parties.

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7.4 If a notice relating to this deed to buyer or seller is:

(a) sent by buyer or seller in accordance with the contract; and

(b) is addressed to and sent to “seller’s contract representative” or “buyer’s contract representative” as defined in the contract, it is taken to be a notice.

8 Governing law

8.1 This deed is governed by the laws of the Australian Capital Territory and the

parties submit to the non-exclusive jurisdiction of the courts of the

Australian Capital Territory in respect of all matters relating to this deed.

9 Counterparts

9.1 This deed may be executed in any number of counterparts. All counterparts

constitute the same deed.

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Executed as a deed

Executed for and on behalf of the Commonwealth

of Australia, as represented by [insert name of

buyer] ABN [insert ABN of buyer] in the

presence of:

(Signature of witness)

(Name of witness)

Position

(Signature)

(Name)

Position

Date of execution: XX/XX/20XX

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Executed by [insert name of seller] ABN [insert

ABN of seller] in accordance with section 127 of

the Corporations Act 2001

(Signature)

(Name)

Director/Company Secretary (delete one)

(Signature)

(Name)

Director

Date of execution: XX/XX/20XX

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[if guarantor is incorporated in Australia]

Executed by [insert name of guarantor] ABN

[insert ABN of guarantor] in accordance with

section 127 of the Corporations Act 2001 (Cth)

(Signature)

(Name)

Director/Company Secretary (delete one)

(Signature)

(Name)

Director

Date of execution: XX/XX/20XX

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