Supply and Services Agreement...8 Service Levels 11 8.1 Service Levels 11 ... Address Level 22, 230...

ANNEXURE [ ] - CONTRACT TO BE EXECUTED

Supply and Services Agreement

Dated

Australian Energy Market Operator (“AEMO”)

[insert party name] (“Supplier”)

Supply and Services Agreement Contents

Supply and Services Agreement 18 February 2016

i

Details 1

General terms 3

1 Scope 3

1.1 System and Services 3 1.2 Compliance with reasonable directions 3 1.3 AEMO Inputs 3

2 Project Plan and delay management 3

2.1 Project Plan 3 2.2 Adherence to Project Plan 3 2.3 Suspension of work 4 2.4 Notice of delay 4 2.5 Extension of Timetable 4 2.6 Failure to notify delay 4 2.7 Liquidated damages 4 2.8 AEMO may grant extensions 4

3 Provision of Services 5

3.1 Time for provision of Services 5 3.2 Maintenance Services 5

4 System Integration 5

4.1 Integration with AEMO Systems 5 4.2 End-to-end integration 5 4.3 Specific responsibilities 5

5 Equipment 6

5.1 Equipment must be new 6 5.2 Design and standard 6 5.3 Title and Risk 6 5.4 Delivery 6

6 Acceptance Testing 7

6.1 Acceptance Test Plan 7 6.2 Acceptance Tests 7 6.3 Defects 7 6.4 Re-performance of Acceptance Tests 8 6.5 Failure to agree a reduction in price 8 6.6 No deemed Acceptance 8 6.7 No waiver 8 6.8 Reliance on Supplier 8

7 Warranties 9

7.1 Mutual warranties 9 7.2 General warranties 9 7.3 Software and Equipment warranties 10 7.4 Defect warranty 10


ii

7.5 Defect rectification 10 7.6 Failure to rectify 10 7.7 OEM Warranties 11 7.8 No other representations or warranties 11

8 Service Levels 11

8.1 Service Levels 11 8.2 Failure to meet a Service Level 11 8.3 Documentation to be updated 12

9 Variations to the Services 12

9.1 Request for variation 12 9.2 Proposal 12 9.3 Agreement to proposal 12

10 Additional Services 12

10.1 AEMO may request additional services 12 10.2 Supplier Proposal 12 10.3 Receipt of Supplier Proposal 13 10.4 Accepted Supplier Proposal 13 10.5 Extended System warranty 13 10.6 Third party suppliers 13 10.7 No unauthorised changes 13

11 Personnel 14

11.1 Supplier Personnel 14 11.2 Supplier Personnel to perform Services 14 11.3 Key Personnel 14 11.4 Removal and replacement of Key Personnel 14 11.5 Contacts 15

12 Compliance with laws 15

12.1 Laws 15 12.2 AEMO premises 16

13 Intellectual Property Rights 16

13.1 Licence 16 13.2 Third party software 16 13.3 Intellectual Property warranties 17 13.4 Intellectual Property indemnity 17 13.5 Third Party Claims 17 13.6 Handling of claims 18

14 Fees, Invoices and Payment 18

14.1 Fees 18 14.2 Rendering invoices 18 14.3 Valid invoices 18 14.4 Set-off 19 14.5 Payment 19 14.6 No change to Fees and charges 19

15 Taxes 19

15.1 Taxes 19 15.2 Evidence of payment 19


iii

15.3 GST 20 15.4 Withholding tax 20 15.5 No other amounts payable 20

16 Confidentiality, Privacy and Security 20

16.1 Disclosure of Confidential Information 20 16.2 Disclosure by Recipient of Confidential Information 21 16.3 Use of Confidential Information 21 16.4 Excluded Information 21 16.5 Return of Confidential Information 21 16.6 Announcements or releases 21 16.7 No disclosure of terms of this agreement 22 16.8 Survival 22 16.9 Security 22

17 Indemnities 22

17.1 Indemnity 22 17.2 Nature of indemnities 22 17.3 Reduced indemnity 22

18 Liability 23

18.1 Limit of Supplier’s liability 23 18.2 Unlimited liability 23 18.3 AEMO’s liability 23 18.4 Excluded liability 23

19 Term and Termination 23

19.1 Term 23 19.2 Termination by Supplier for cause 24 19.3 Termination for insolvency 24 19.4 Cancellation of Maintenance Services 24 19.5 Termination for cause by AEMO 24 19.6 Termination by AEMO 24 19.7 Non-exclusive remedies of AEMO 24 19.8 Partial termination 25 19.9 Disengagement 25 19.10 Term of the Licence 25

20 Force majeure 26

20.1 Force Majeure Event 26 20.2 Reasonable mitigation by Supplier 26 20.3 Procedure for Force Majeure Events 26 20.4 Effect on Fees 26 20.5 Termination 26

21 Insurance 26

21.1 Public Liability Insurance 26 21.2 Worker’s Compensation Insurance 27 21.3 Evidence of currency 27

22 Novation, assignment and subcontracting 27

22.1 Novation and assignment 27 22.2 Subcontracting 27


iv

23 Governance 27

23.1 Meetings and reports 27 23.2 Form of Reports 27 23.3 Retention of Records 28 23.4 Disputes 28

24 Notices 28

24.1 Form 28 24.2 Delivery 28 24.3 When effective 28 24.4 Receipt 28

25 General 29

25.1 Independent contractor 29 25.2 Entire agreement 29 25.3 Variation and waiver 29 25.4 Discretion in exercising rights 29 25.5 Partial exercise of rights 29 25.6 Approvals and consents 29 25.7 Remedies cumulative 29 25.8 No merger 29 25.9 Rights and obligations are unaffected 29 25.10 Construction 30 25.11 Counterparts 30 25.12 Survival 30

26 Governing Law 30

27 Interpretation 30

27.1 Definitions 30 27.2 References to certain general terms 38 27.3 Headings 39 27.4 Inconsistency 39

Schedule 1 - Specifications 40

Schedule 2 - Services 42

Schedule 3 - Service Levels 48

Schedule 4 - Fees 50

Schedule 5 - Project Plan 53

Schedule 6 - Software and Equipment 54

Schedule 7 - Dispute Resolution Process 55

Schedule 8 - AEMO Inputs 57

Schedule 9 - Original Equipment Manufacturer (OEM) warranties 57

Signing page 58



1

Details

Interpretation – definitions are at the end of the General terms

Parties AEMO and Supplier

AEMO Name Australian Energy Market Operator Ltd

ABN ABN 94 072 010 327

Address Level 22, 230 Collins Street, Melbourne Vic

3000

Telephone +61 7 3347 3004

Email

Fax

Attention Terry Day

AEMO Contact Manager - IT Grid Systems, Operations

Supplier1 Name [insert name]

ABN [insert ABN]

Address [insert address]

Telephone [insert telephone number]

Email [insert email address]

Fax [insert fax number]

Attention [insert title]

Supplier Contact [insert title]

1 Note to respondents: depending on the respondent’s corporate group structure, AEMO may require the successful respondent’s holding or parent company to provide financial and performance guarantees in a form satisfactory to AEMO. Respondents must indicate their compliance with this requirement in their completed Proposed Contract Changes.


2

Recitals A AEMO wishes to:

acquire two computer room air conditioning

(CRAC) units;

have that CRAC units installed (including

removal and disposal of current UPS air-

conditioning systems and associated materials),

commissioned and integrated with certain existing

systems; and

have the new system maintained; and

acquire training services in relation to the new

CRAC units.

B Following a tender process AEMO has selected the

Supplier to supply, install and integrate the CRAC units

and to provide the required maintenance and training

services, as further described in, and on the terms of, this

agreement.

C The Supplier has represented to AEMO that it is an

experienced provider of such units and services.

D The Supplier has agreed to provide the units and related

services as further described in, and on the terms of, this

agreement.

Governing law Victoria

Date of

agreement

See signing page

Public Liability

Insurance

$20 million per occurrence



3

General terms

1 Scope

1.1 System and Services

Supplier will provide AEMO with:

(a) the System;

(b) the Deliverables; and

(c) the Services,

in accordance with this agreement.

1.2 Compliance with reasonable directions

The Supplier will, in carrying out its obligations under this agreement,

comply with all reasonable directions of AEMO.

1.3 AEMO Inputs

AEMO will provide the Supplier with the inputs described in Schedule 8.

The provision of those inputs (“AEMO Inputs”), together with the

performance of its other express obligations under this agreement, constitutes

AEMO’s entire responsibilities in relation to the performance of this

agreement.

2 Project Plan and delay management

2.1 Project Plan

The High Level Project Plan is set out in paragraph 1.1 of Schedule 5. Within

30 days of the Commencement Date, the Supplier must deliver a Detailed

Project Plan including Payment Milestones and other key dates consistent

with the High Level Project Plan.

2.2 Adherence to Project Plan

The Supplier must meet its obligations under the Project Plan2 by the times

set out in that plan.

2 Note to respondents: AEMO will require a satisfactorily detailed Project Plan to be agreed before signing and attached as Schedule 5.


4

2.3 Suspension of work

From time to time AEMO may, for operational or other reasons, require the

Supplier to suspend work at the AEMO Site. The Supplier will comply with

any such requirement notified to it by AEMO. If the Supplier requires an

extension of time as a result of such suspension, the Supplier must notify

AEMO in accordance with clause 2.4.

2.4 Notice of delay

As soon as it becomes apparent that any obligation under this agreement

might not be met by the date required under the Project Plan, the Supplier

must promptly notify AEMO. The notice must include:

(a) the cause of the delay;

(b) the steps the Supplier is taking to minimise the delay; and

(c) any extension of time requested to meet the affected milestones or

obligations under clause 2.5.

2.5 Extension of Timetable

To the extent to that any delay notified under clause 2.4 is attributable to a

cause beyond the reasonable control of the Supplier (including a suspension

of work under clause 2.3), AEMO will extend the time for meeting any

affected milestone or obligation by a period reasonably necessary to

overcome the effects of the delay. The Project Plan will be revised to reflect

any such extension.

2.6 Failure to notify delay

If the Supplier fails to notify AEMO of a delay in accordance with clause 2.4:

(a) AEMO is not obliged to grant an extension of time for completion of

any affected milestone or obligation;

(b) the Supplier must perform its obligations according to the Project

Plan; and

(c) any principle of law or equity that might otherwise make the date for

achievement of an obligation uncertain will not apply.

2.7 Liquidated damages

If the System does not achieve Acceptance by the Practical Completion Date,

the Supplier will pay liquidated damages to AEMO in accordance with

paragraph 4 of Schedule 4.

2.8 AEMO may grant extensions

Notwithstanding anything in this agreement, AEMO may at any time grant an

extension of time to the Supplier for the performance of obligations.


5

3 Provision of Services

3.1 Time for provision of Services

The Supplier will provide the Services in accordance with the dates specified

in the Project Plan.

3.2 Maintenance Services

(a) If requested to do so in writing by AEMO, the Supplier will provide

Maintenance Services for 12 months from the Practical Completion

Date.

(b) AEMO will pay Supplier Maintenance Services Fee for provision of

the Maintenance Services (subject to any AEMO entitlement to

receive Service Level Rebates).

4 System Integration

4.1 Integration with AEMO Systems

The Supplier will integrate the System with AEMO Systems in a manner that:

(a) allows continuous, efficient and transparent operation of the System

and AEMO Systems;

(b) avoids any adverse effect on the functionality or performance of

AEMO Systems (other than effects disclosed in the integration

specifications); and

(c) avoids adverse end-user impact.

4.2 End-to-end integration

The Supplier will undertake full end-to-end integration of the System with

AEMO Systems, including the development of any necessary interfaces

between the relevant systems.

4.3 Specific responsibilities

Without limiting the generality of clauses 4.1 and 4.2, the Supplier must:

(a) undertake all integration activities as required to achieve the goals set

out in clauses 4.1 and 4.2;

(b) develop integration strategies and specifications acceptable to

AEMO;

(c) work collaboratively with other parties whose equipment, software or

systems interface with the System;

(d) provide support (including relevant interface specifications and other

information relevant to the integration activities) to third party

suppliers who supply AEMO Systems or any other systems,

networks, equipment or services which interface with the System;


6

(e) interface the System with AEMO Systems;

(f) ensure end-to-end interworking and system performance between the

System and those components with which the System interfaces; and

(g) notify AEMO as soon as practicable of any problems the Supplier

becomes aware of concerning the integration of AEMO Systems with

the System.

5 Equipment

5.1 Equipment must be new

All Equipment that forms part of the System must be new on delivery.

5.2 Design and standard

All Equipment that forms part of the System must be of first grade design and

manufacture and must comply with the relevant Australian Standards

Association specifications.

5.3 Title and Risk

(a) Title in any Equipment or Deliverables passes to AEMO on payment

of the Payment Milestone relating to the Equipment or Deliverable.

(b) Subject to the Supplier’s obligations to indemnify AEMO under

clause 17.1, risk of loss of, or damage to, any Equipment or

Deliverables passes to AEMO on delivery of the relevant item of

Equipment or Deliverable to AEMO.

5.4 Delivery

(a) The Supplier will prepare equipment and materials for transportation

in a manner that will protect them from damage during transit. The

Supplier will obtain and maintain appropriate insurance on

deliverables during transportation, unloading, placement, and

installation at the AEMO Site.

(b) Delivery shall take place Monday through Friday between 8:00 am

and 4:00 pm. No deliveries shall be made on public holidays

applicable at the delivery site. The Supplier shall notify AEMO

representative at least 48 hours prior to the delivery time to arrange

for AEMO representative to be on site at the time of delivery.

(c) The Supplier shall be responsible for site inspection and determining

the best route for moving the Equipment at the AEMO Site. The

Supplier shall identify to AEMO representative any problem areas

along the route and work to resolve the problem to mutual

satisfaction. The Supplier shall provide floor, wall, and ceiling

protection to prevent damage to elevators, doorways, flooring, and

corridors.


7

6 Acceptance Testing

6.1 Acceptance Test Plan

(a) The Acceptance Test Plan is provided in Appendix 2, or as otherwise

agreed by the parties.

6.2 Acceptance Tests

(a) Supplier will perform Acceptance Tests within the Acceptance Test

Period.

(b) Where a Deliverable passes Acceptance Tests, the Supplier will issue

a certificate to AEMO Accepting the Deliverable (“Acceptance

Certificate”).

(c) When the System passes its final Acceptance Tests required for the

Practical Completion Date, the Supplier will issue a final notice to

AEMO Accepting the System (“Final Acceptance Certificate”).

(d) If a Deliverable or the System does not pass Acceptance Tests,

AEMO:

(i) will issue a notice to the Supplier rejecting the Deliverable or

the System (as relevant) (“Rejection Notice”), which

includes a list of Defects; and

(ii) within 5 Business Days of receiving the Rejection Notice, the

Supplier must correct the Defects (or, at AEMO’s election,

provide substitute Deliverables or a substitute System), and

the Acceptance Tests will then be repeated for the corrected

(or substituted) System or Deliverable.

6.3 Defects

If any Defects remain in the System or in a Deliverable following Acceptance

Tests or otherwise at the end of an Acceptance Test Period, without limiting

any other right or remedy, AEMO may:

(a) provide the Supplier with a list of Defects and the Supplier must,

within 5 days of receiving the list, correct the Defects and repeat the

Acceptance Tests;

(b) Accept the Deliverable or the System at a reduced price;

(c) rectify, or have rectified, any Defect in the Deliverable or the System

at the Supplier’s expense and set off such expenses against any

amount due to Supplier (or otherwise recover that amount as a debt

due and payable by Supplier); or

(d) by notice, terminate this agreement.


8

6.4 Re-performance of Acceptance Tests

If AEMO exercises its right under clause 6.3(a), the Supplier will repeat the

relevant Acceptance Tests. The Acceptance Test Period for the repeated

Acceptance Tests will be the same duration as the original Acceptance Test

Period and testing will begin no later than 7 days after the date on which

Supplier corrects the Defects in accordance with clause 6.3(a).

6.5 Failure to agree a reduction in price

If AEMO intends to exercise its right under clause 6.3(b) and the parties do

not agree on a reduced price within 7 days of AEMO notifying the Supplier

that it intends exercising such right, AEMO may, without limiting any of its

rights or remedies, terminate this agreement immediately by giving notice.

6.6 No deemed Acceptance

Neither the System, nor any Deliverable, will be taken as having been

Accepted, and AEMO does not waive any rights under clause 6 or otherwise

under this agreement if:

(a) AEMO fails to provide a list of Defects under clause 6.3; or

(b) AEMO uses the Deliverable or the System.

6.7 No waiver

The Supplier agrees that Acceptance of a Deliverable or the System by

AEMO is without prejudice to any of AEMO’s rights or remedies under this

agreement and does not affect the Supplier’s obligations to:

(a) supply Deliverables and a System that conform to the requirements of

this agreement; or

(b) to correct Defects.

6.8 Reliance on Supplier

The Supplier acknowledges and agrees that:

(a) AEMO has engaged the Supplier in reliance on the Supplier’s

representations that it has the necessary skills and expertise to deliver

the System, the Deliverables and the Services as contemplated by and

on the terms of this agreement;

(b) Acceptance or approval by AEMO of any Deliverable or

Documentation prepared by the Supplier does not in any way

diminish or reduce AEMO’s reliance on the Supplier, or the

Supplier’s obligations under this agreement to deliver a System,

Deliverables and Services that conform to the requirements of this

agreement.


9

7 Warranties

7.1 Mutual warranties

Each party warrants that:

(a) it has full capacity and authority to enter into and to perform this

agreement;

(b) this agreement is executed by a duly authorised representative; and

(c) once duly signed this agreement will constitute legal, valid and

binding obligations.

7.2 General warranties

The Supplier represents, warrants and undertakes to AEMO that:

(a) it will perform its obligations under this agreement in accordance

with industry best practice;

(b) it has been given adequate opportunity and access to undertake (and

has undertaken) appropriate due diligence to investigate what is

required by it to deliver the Deliverables effectively and efficiently,

deliver and integrate the System and perform the Services as required

under this agreement;

(c) AEMO Inputs are an exhaustive list of the only inputs to be provided

by AEMO to enable the Supplier to perform its obligations under this

agreement;

(d) all of the Supplier’s representations and statements as set out in this

agreement are true and correct and are not misleading or deceptive;

(e) it will comply with all laws, and any mandatory codes of conduct

applicable to it that are related in any way to the System or the

Services.


10

7.3 Software and Equipment warranties3

Supplier warrants that there is, or will be, no software in the System other

than the Licensed Software and the Third Party Software listed in Schedule 6

and that such Licensed Software and Third Party Software is all that is

required for AEMO to use and enjoy all of the benefits of Services and

Deliverables and the System, as contemplated by this agreement.

7.4 Defect warranty

Supplier represents, warrants and undertakes to AEMO that:

(a) the Deliverables and the System:

(i) will conform to all of the requirements set out in this

agreement;

(ii) will be fit for the purposes stated in and contemplated by this

agreement;

(iii) will comply with all applicable laws; and

(iv) will be free from any Defects;

(b) the Services will be provided with due care and skill; and

(c) the System:

(i) will be integrated successfully and will function correctly

with AEMO Systems; and

(ii) will meet the functionality and performance requirements set

out in Schedule 1.

7.5 Defect rectification

Without limiting any of its other obligations under this agreement, the

Supplier will correct all Defects occurring in any Deliverable or in the System

(or, at AEMO’s sole option, replace any Deliverable that demonstrates any

Defect) during the Warranty Period, at no additional cost to AEMO. In

performing Defect rectification, the Supplier will meet or exceed the Service

Levels set out in paragraph 1 of Schedule 3.

7.6 Failure to rectify

If the Supplier fails to correct any Defect (or, at AEMO’s sole option, replace

any defective or non-conforming Deliverable as required under clause 7.5),

AEMO may itself correct the Defect (or replace the defective or non-

conforming Deliverable), or have a third party correct the Defect or replace

3 Note to respondents: Respondents must clearly indicate whether any software is required for the continued operation of the air-conditioning units or associated equipment including any third party software or software which the supplier will develop as part of the services. If software is not required for the units or associated equipment, clauses and references related to software in the agreement will not be required.


11

the defective or non-conforming Deliverable. The Supplier will pay AEMO’s

costs and expenses incurred in correcting Defects or replacing Deliverables,

or in procuring Defect correction or replacement of Deliverables, under this

clause 7.6.

7.7 OEM Warranties

The System and certain components of the System will be covered by

warranties offered by the original equipment manufacturer or their authorised

reseller (“OEM Warranty”) as specified in Schedule 9. Supplier will ensure

the OEM Warranties are either in the name of, or are directly enforceable by,

AEMO. The Supplier will provide all necessary assistance to assist AEMO in

making any claim under an OEM Warranty. OEM Warranties are in addition

to, and in no way diminish or derogate from, the Supplier’s warranty

obligations under clauses 7.2 to 7.6 or otherwise under or in connection with

this agreement.

7.8 No other representations or warranties

The Supplier acknowledges that, in entering into this agreement, it has not

relied on any representations or warranties about its subject matter except as

expressly provided by the terms of this agreement.

8 Service Levels

8.1 Service Levels

The Supplier must provide the Services so as to meet or exceed the Service

Levels.

8.2 Failure to meet a Service Level

If during any Maintenance Services Term the Supplier:

(a) fails to meet a Service Level on two or more occasions in any month

then, without limiting any other right or remedy, AEMO will be

entitled to a Service Level Rebate of [insert rebate];4

(b) fails to meet a Service Level Target on four or more occasions in any

month, without limiting any other right or remedy, AEMO will be

entitled to a Service Level Rebate of [insert rebate];

4 Note to respondents: an appropriate Service Level Rebate regime will be negotiated with the successful respondent. As a guide, AEMO expects that where the respondent is engaged to provide the Maintenance Services and AEMO pays Maintenance Services Fees, Service Level Rebates will consist of a 10% per cent reduction in the monthly fees in the relevant month for each breach of a Service Level, up to a maximum rebate of 100% of the monthly fees in that month for repeated Service Level failures. Respondents should therefore, in their compliance statement against this clause, respond specifically to these requirements.


12

(c) fails to meet a Service Level on 5 or more occasions in any month; or

(d) correct a Severity Level 1 Defect (as described in Schedule 3) within

the time provided for in Schedule 3 on more than two occasions in

any month

without limiting any other right or remedy, AEMO may terminate this

agreement immediately by giving notice.

8.3 Documentation to be updated

If any change is made to the System or to any Software or other Deliverable

that results in the Documentation not correctly reflecting the functionality of

the System, the Software or the Deliverable, the Supplier must, within 7 days

of the change being made, update the Documentation so that it correctly

reflects current functionality.

9 Variations to the Services

9.1 Request for variation

Either party may request a variation in the nature, scope or timing of the

Services.

9.2 Proposal

Upon the issue of a request under clause 9.1, the Supplier must prepare a

proposal detailing the impact of the request on the Services, Service Levels,

Fees, Practical Completion Date and any other relevant issues.

9.3 Agreement to proposal

The Supplier must not commence to deliver any work other than the Services

until AEMO has agreed to the proposal.

10 Additional Services

10.1 AEMO may request additional services

AEMO may request the Supplier to perform additional services (“Additional

Services”) by giving notice to the Supplier specifying the proposed new

services (“Services Request”).

10.2 Supplier Proposal

The Supplier will submit a proposal (“Supplier Proposal”) in response to the

Services Request within 10 Business Days (or other agreed period) of receipt

of the Services Request that includes:

(a) a quote for the cost of implementing the Services Request based on

the time and materials rates set out in Schedule 4, including any costs

savings arising out of the change;

(b) an impact analysis of the Additional Services on the System and its

ability to meet the Specifications;


13

(c) a proposed project plan and timetable for implementation of the

Services Request, including any impact on the Project Plan; and

(d) any other information reasonably requested by AEMO relevant to the

Services Request.

10.3 Receipt of Supplier Proposal

Within 20 Business Days of receipt of a Supplier Proposal, AEMO must

notify the Supplier that it:

(a) accepts the Supplier Proposal, in which case the parties must execute

and date the Supplier Proposal;

(b) wishes to negotiate with the Supplier, in which case the parties will

use their best endeavours to negotiate in good faith changes to the

Supplier Proposal; or

(c) rejects the Supplier Proposal.

10.4 Accepted Supplier Proposal

If a Supplier Proposal has been accepted by AEMO in accordance with

clause 10.3(a), the services and fees set out in the Supplier Proposal will form

part of this agreement and the Additional Services described in the Supplier

Proposal will be Services provided on the terms of this agreement.

10.5 Extended System warranty

Where Additional Services involving any change to the System (including

integration of the System with any AEMO Systems) are Accepted by AEMO:

(a) during the System Warranty Period, the System Warranty Period will

be extended to apply for the period ending 12 months after the date of

issue by AEMO of the final Acceptance Certificate for those

Additional Services;

(b) after any System Warranty Period has expired, the applicable

Warranty Period is twelve months from the date of Acceptance.

10.6 Third party suppliers

Nothing in this agreement prevents AEMO from procuring any Deliverables,

Software or Additional Services from third party suppliers.

10.7 No unauthorised changes

Notwithstanding anything in this agreement, the Supplier is not entitled to be

paid for any work performed by it beyond the current scope of this agreement

unless clause 10 is complied with.


14

11 Personnel

11.1 Supplier Personnel

(a) The Supplier will provide sufficient resources, including personnel,

equipment and facilities, and will continue a program of management

and maintenance of those resources, to enable it to fulfil its

obligations under this agreement.

(b) Until at least the expiry of the Warranty Period, the Supplier will

ensure that the Supplier Contact, (or another senior member of

Supplier’s staff who has been involved in implementation of the

System and the Services who is acceptable to AEMO) continues to

act as a dedicated account manager available to respond to Defects

and to other questions AEMO may have about the System, the

Services and this agreement.

11.2 Supplier Personnel to perform Services

The Supplier must:

(a) ensure that Supplier Personnel do not represent themselves as being,

or allow another person, by act or omission, to be under the

misapprehension that any of them are, an employee, partner or agent

of AEMO;

(b) ensure that Supplier Personnel comply with this agreement;

(c) after receiving notice from AEMO requiring the Supplier to remove

any Supplier Personnel (which may be given in AEMO’s absolute

discretion), immediately cease the involvement of those Supplier

Personnel in the performance of the Services and promptly provide

replacements suitable to AEMO; and

(d) provide prompt notice to AEMO if any Supplier Personnel are unable

to undertake work in respect of the Services or comply with any

reasonable direction by AEMO, including promptly providing a

replacement suitable to AEMO.

11.3 Key Personnel

Supplier will use the Key Personnel to perform the roles described in

paragraph 4 of Schedule 2 in the performance of this agreement.

11.4 Removal and replacement of Key Personnel

The Supplier must not remove or replace Key Personnel without AEMO’s

consent. AEMO may require the removal and prompt replacement of Key

Personnel who are not performing their roles to AEMO’s reasonable

satisfaction. Any person who replaces Key Personnel must have comparable

qualifications and experience and be reasonably acceptable to AEMO.


15

11.5 Contacts

(a) The parties will each nominate a person to act as their primary points

of contact with each other in relation to the day-to-day management

and administration of this agreement (“Contact”).

(b) Each party’s Contact as at the Commencement Date is as specified in

the Details. Each party will notify the other of any changes to their

respective Contacts.

(c) The Supplier Contact must:

(i) represent Supplier in all matters relating to the supply of the

System, the Deliverables and the Services;

(ii) be responsible for overseeing the supply of the System, the

Deliverables and the Services;

(iii) act as agent for the Supplier and have authority to give or

receive communications, grant consents and issue instructions

on behalf of the Supplier;

(iv) be available at all reasonable times for consultation with the

AEMO Contact or any officer of AEMO in relation to the

supply of the System, the Deliverables and the Services, and

any other matter relating to this agreement; and

(v) communicate with AEMO through the AEMO Contact.

(d) The Supplier must fully inform itself of AEMO’s requirements from

time to time.

(e) The Supplier must keep the AEMO Contact fully informed as to

matters affecting the cost, timing, quality or ability of the Supplier to

provide the Deliverables, the System and the Services, and as to any

additional matters on which AEMO specifically requests that the

Supplier reports.

(f) The Supplier acknowledges that the AEMO Contact is not an

authorised officer of AEMO for the purposes of clause 25.3 and is

not authorised to give consents under clause 13.6.

12 Compliance with laws

12.1 Laws

In performing its obligations under this agreement the Supplier will comply

with all applicable laws including occupational health, safety and

environmental laws.


16

12.2 AEMO premises

(a) When the Supplier is required to be present at any AEMO premises or

facilities in connection with the provision of Services under this

agreement, the Supplier will at all times comply with:

(i) AEMO’s policies and procedures applicable to the use of and

access to such premises or facilities, including (without

limiting its obligations under clause 12.1) all applicable

occupational health, safety and environmental laws; and

(ii) any reasonable direction of any authorised AEMO person in

relation to such policies.

(b) The Supplier must ensure that it does not cause, that none of its

Representatives causes, and that none of the Equipment, System, the

Deliverables or the Services in any way causes, any personal injury,

death or loss of or damage to real or tangible personal property under

or in connection with this agreement.

(c) The Supplier must, where appropriate, supply adequate health and

safety information concerning any Equipment included in or used in

connection with any Services, System or Deliverables provided under

this agreement and ensure that they will be safe when properly used,

supplied, maintained and stored. The Supplier must at all times keep

AEMO informed of all relevant information which becomes known to

the Supplier concerning their use, supply, maintenance and storage.

(d) All information to be provided to AEMO in accordance with

paragraph (c) must be provided to AEMO’s Contact.

13 Intellectual Property Rights

13.1 Licence

The Supplier grants AEMO a perpetual, non-exclusive, irrevocable licence to:

(a) use and reproduce the Licensed Software and Developed Software

(either alone or with other software or documentation) and all other

Deliverables in any manner, anywhere in the world and for any

purpose;

(b) permit any person to assist AEMO to do any of the things referred to

in paragraph (a); and

(c) sublicense any of the rights described in paragraph (a) or (b) to any

person.

13.2 Third party software

(a) At the date of this agreement:

(i) AEMO consents to the use of the Third Party Software listed

at paragraph 1.2 of Schedule 6; and


17

(ii) unless otherwise agreed by AEMO, the Supplier will procure

a licence for AEMO to use that Third Party Software on

terms acceptable to AEMO.

(b) The Supplier will obtain AEMO’s consent before using additional

Third Party Software as part of the System.

(c) If AEMO consents to the use of additional Third Party Software

under clause 13.2(b) the Supplier will:

(i) update the list of Third Party Software at paragraph 1.2 of

Schedule 6; and

(ii) procure a licence for AEMO to use such additional Third

Party Software on terms acceptable to AEMO.

13.3 Intellectual Property warranties

The Supplier warrants that none of:

(a) supply by it and AEMO’s use of the Services, the Deliverables and

the System;

(b) AEMO’s exercise of the Developed Intellectual Property Rights; or

(c) AEMO’s exercise of any Intellectual Property Rights in the Licensed

Software under clause 13.1, (including use by persons under clause

13.1(b) and by sublicensees under clause 13.1(c)),

(together the “Warranted IP”) will infringe any rights (including Intellectual

Property Rights and Moral Rights) of any other person, or constitute a misuse

of any person’s Confidential Information.

13.4 Intellectual Property indemnity

The Supplier indemnifies AEMO and its Representatives (“those

Indemnified”) against any loss, damage, injury, liability, cost or expense

(including legal costs and expenses on a full indemnity basis) suffered or

incurred by any of those Indemnified, to the extent such loss, damage, injury,

liability, cost or expense is suffered or incurred as a result of any Claim

against any of those Indemnified that any of the Warranted IP infringes the

Intellectual Property Rights of any person (“Third Party Claim”).

13.5 Third Party Claims

Without limiting AEMO’s rights under clauses 13.3 and 13.4, if a Third Party

Claim arises the Supplier must (at AEMO’s option):

(a) procure the right for AEMO to continue using the infringing item; or

(b) replace or modify the infringing item so that it becomes non-

infringing,

within 30 days of being notified of the Third Party Claim.


18

13.6 Handling of claims

(a) AEMO will notify the Supplier promptly of any alleged Third Party

Claim.

(b) The Supplier will be responsible for the defence of any Third Party

Claim. On request, AEMO will provide the Supplier with reasonable

assistance with the Third Party Claim, provided the Supplier meets

AEMO’s costs of doing do.

(c) The Supplier must not agree to any settlement of a Third Party Claim

that would involve AEMO doing or refraining from doing anything

without AEMO’s consent.

14 Fees, Invoices and Payment

14.1 Fees

In consideration of the Supplier’s performance of its obligations under this

agreement, AEMO will pay the Supplier the Fees in accordance with this

agreement.

14.2 Rendering invoices

Unless otherwise agreed, invoices may only be rendered to AEMO once

AEMO has issued an Acceptance Certificate in respect of achievement by the

Supplier of a Payment Milestone. AEMO is not required to make any

payment to the Supplier until all of the requirements of this agreement have

been satisfied in respect of the Deliverables and Services (as relevant) to be

provided at the relevant Payment Milestone and an invoice has been properly

rendered to AEMO by the Supplier in accordance with clause 14. If the

Supplier is providing Maintenance Services, invoices for the Maintenance

Services Fees may be rendered at the intervals specified in Schedule 4. No

Maintenance Services Fees will be payable in relation to Defects.

14.3 Valid invoices

Invoices must comply with clause 14.1, be properly completed by the

Supplier, forwarded to the billing address specified in paragraph 3.1 of

Schedule 4 and state the following:

(a) the name of any relevant Payment Milestone and the claimed date of

completion of the Payment Milestone;

(b) particulars of the Deliverables and Services (as relevant), including

the dates of their supply; and

(c) the amount of GST (if any) included in the amount invoiced.


19

Invoices rendered to AEMO must be accompanied by a copy of the

Acceptance Certificate applicable to the relevant Payment Milestone, signed

by AEMO.

14.4 Set-off

AEMO may set off or deduct from any amount due to the Supplier all or any

amount owed by Supplier to AEMO for any reason, including any amount

owed to AEMO in relation to:

(a) any sum in dispute between the parties;

(b) any liquidated damages for late delivery to which AEMO is entitled

under this agreement;

(c) any Service Level Rebates to which AEMO is entitled under this

agreement;

(d) any Deliverable that has been rejected by AEMO or which AEMO

has refused to take delivery of.

14.5 Payment

Subject to the requirements of clause 14, AEMO will pay each properly

rendered invoice within 30 days of its receipt.

14.6 No change to Fees and charges

Fees and charges payable by AEMO under this agreement are fixed for the

Term and must not be varied without AEMO’s written consent, which may be

withheld or granted in AEMO’s absolute discretion.

15 Taxes

15.1 Taxes

The Supplier is responsible for all Taxes arising from or relating to this

agreement and must pay:

(a) Taxes that are imposed on the Supplier, directly to the relevant

Government Agency; and

(b) Taxes that are imposed on AEMO, directly to the relevant

Government Agency on behalf of AEMO,

on or before the latest date that the Tax is due for payment without incurring

any penalty or additional tax for late payment.

15.2 Evidence of payment

Where the Supplier pays Taxes imposed on AEMO under clause 15.1(b), the

Supplier must provide to AEMO notification evidencing, to the satisfaction of

AEMO, the full and timely payment of the relevant Taxes. Such notice must

be provided within 3 days of a payment by Supplier pursuant to clause

15.1(b).


20

15.3 GST

The parties agree that:

(a) unless expressly stated otherwise, the consideration specified in this

agreement does not include any amount of GST;

(b) if a supply under this agreement is subject to GST, and the

consideration payable or to be provided for the supply is not

expressed to include GST, the party receiving the supply must pay to

the party making the supply an additional amount equal to the

Amount of the Consideration multiplied by the applicable GST rate;

(c) the additional amount is payable at the same time as the consideration

for the supply is payable or is to be provided, however, the additional

amount need not be paid until the party making the supply gives the

party receiving the supply a Tax Invoice;

(d) if the additional amount differs from the amount of GST payable by

the party making the supply, the parties must adjust the additional

amount; and

(e) if a party is entitled to be reimbursed or indemnified under this

agreement, the amount to be reimbursed or indemnified does not

include any amount for GST for which the party is entitled to an Input

Tax Credit.

15.4 Withholding tax

If a law requires AEMO to deduct an amount in respect of Taxes from a

payment under this agreement:

(a) AEMO agrees to deduct the amount for the Taxes; and

(b) AEMO agrees to pay an amount equal to the amount deducted to the

relevant Government Agency in accordance with applicable law and

give the original receipts to Supplier.

15.5 No other amounts payable

Other than payment of the relevant amounts under clause 15, there are no

other amounts payable by AEMO under this agreement.

16 Confidentiality, Privacy and Security

16.1 Disclosure of Confidential Information

No Confidential Information of a party (“Disclosing Party”) may be

disclosed by the party receiving the Confidential Information (“Recipient”)

to any person except:

(a) to Representatives of the Recipient or its Related Bodies Corporate

requiring the information for the purposes of this agreement;


21

(b) with the consent of the Disclosing Party which consent may be given

or withheld in its absolute discretion;

(c) if the Recipient is required to do so by law or by a stock exchange;

(a) where AEMO is the Recipient, if required to do so by any

Government Agency, including disclosing Confidential Information

to a Representative of the Government Agency at the direction of a

Government Agency; or

(d) if the Recipient is required to do so in connection with legal

proceedings relating to this agreement.

16.2 Disclosure by Recipient of Confidential Information

Any party disclosing information under clauses 16.1(a) or 16.1(b) must use

all reasonable endeavours to ensure that persons receiving Confidential

Information from it do not disclose the information except in the

circumstances permitted in clause 16.1.

16.3 Use of Confidential Information

A Recipient must not use Confidential Information except to the extent

necessary for the purposes of exercising its rights or performing its

obligations under this agreement.

16.4 Excluded Information

Clauses 16.1, 16.2 and 16.3 do not apply to the Excluded Information.

16.5 Return of Confidential Information

(a) Subject to paragraph (b), a Recipient must, on the request of the

Disclosing Party, promptly deliver to the Disclosing Party all

documents or other materials containing or referring to the

Confidential Information of the Disclosing Party in its possession,

power or control or in the possession, power or control of persons

who have received Confidential Information from it under clauses

16.1(a) or 16.1(b).

(b) Nothing in paragraph (a) or otherwise in this agreement prevents

AEMO from retaining, using or disclosing Software, Documentation

or other Deliverables as permitted under this agreement.

16.6 Announcements or releases

(a) The Supplier must not make press or other announcements or releases

relating to this agreement and the transactions the subject of this

agreement without AEMO’s approval as to the form and manner of

the announcement or release unless and to the extent that the

announcement or release is required to be made by the Supplier by

law or by a stock exchange.

(b) AEMO may at any time and at its discretion make any press or other

announcements or releases relating to this agreement and the


22

transactions the subject of this agreement without requiring the

Supplier’s approval.

16.7 No disclosure of terms of this agreement

Except as otherwise agreed or required by law, by any regulatory authority, or

by any Government Agency, no party will disclose the terms of this

agreement to any person other than its employees, accountants, auditors,

financial advisers or legal advisers on a confidential basis.

16.8 Survival

Clause 16 will survive termination (for whatever reason) or expiry of this

agreement.

16.9 Security

The Supplier must comply with AEMO’s security and office regulations

when on AEMO’s premises or accessing any of AEMO’s computer systems.

AEMO will make a copy of the regulations available on request by the

Supplier.

17 Indemnities

17.1 Indemnity

The Supplier indemnifies AEMO and its Representatives (“those

Indemnified”) against any loss, damage, injury, liability, cost or expense

(including legal costs and expenses on a full indemnity basis) suffered or

incurred by any of those Indemnified, to the extent such loss, damage, injury,

liability, cost or expense is suffered or incurred as a result of:

(a) any injury to, or death of any person and any loss of, or damage to, a

any person’s real or personal property caused or contributed to by the

Supplier or a Representative of the Supplier; or

(b) fraud by the Supplier or by a Representative of the Supplier,

in connection with the Supplier’s performance of its obligations under and in

connection with this agreement.

17.2 Nature of indemnities

The indemnities in this agreement are continuing obligations, independent

from the Supplier’s other obligations under this agreement and continue after

this agreement ends. It is not necessary for AEMO to incur expense or make

payment before enforcing a right of indemnity under this agreement.

17.3 Reduced indemnity

Supplier Supplier’s liability to indemnify those Indemnified under this

agreement will be reduced proportionally to the extent that a negligent act or

omission of any of those Indemnified suffering loss, damage, costs or expense

has contributed to the relevant loss, damage, costs or expense.


23

18 Liability

18.1 Limit of Supplier’s liability

Subject to clauses 18.2 and 18.4, the Supplier’s total liability to AEMO under

or in connection with this agreement (whether in contract, tort (including

negligence), under statute or otherwise) is limited to $20 million.

18.2 Unlimited liability

Clause 18.1 does not limit the Supplier’s liability under or in connection with

this agreement in relation to:

(a) its obligations to indemnify AEMO and its Representatives under

clauses 13.4 and 17; or

(b) liability arising from any breach by Supplier of clauses:

(i) 16; and

(ii) 21.

18.3 AEMO’s liability

(a) AEMO’s total liability to the Supplier under or in connection with

this agreement (whether in contract, tort (including negligence), under

statute or otherwise), is limited to the Fees paid or payable for

Services or Deliverables that have actually been provided by Supplier

in accordance with this agreement.

18.4 Excluded liability

(a) Subject to clause 18.4(b), neither party will be liable (whether in

contract, tort (including negligence), under statute or otherwise) to the

other party for:

(i) loss of profits, business, revenue, goodwill, opportunity or

anticipated savings; or

(ii) for any other such form of indirect or consequential loss or

damage.

(b) The Supplier will be liable for loss of the type described in clause

18.4(a) to the extent that it is insurable under the insurances the

Supplier is required to maintain under clause 21, and in respect of any

of the liabilities contemplated by clause 18.2.

19 Term and Termination

19.1 Term

This agreement commences on the Commencement Date and continues until

the parties have performed all of their obligations under this agreement

(including, if applicable, during the Maintenance Services Term), subject to

earlier termination in accordance with this agreement (“Term”).


24

19.2 Termination by Supplier for cause

The Supplier is only entitled to terminate this agreement on the grounds of

breach by AEMO where AEMO has failed to pay Fees in excess of $25,000

which are not the subject of a Dispute under clause 23.4, for a period in

excess of 30 Business Days after service of notice by the Supplier demanding

payment to AEMO.

19.3 Termination for insolvency

Either party may terminate this agreement immediately by giving notice if the

other party or a Related Body Corporate of the other party becomes (or

threatens to become) Insolvent.

19.4 Cancellation of Maintenance Services

AEMO may, at any time, cancel the provision of Maintenance Services by

providing the Supplier with no less than 90 days’ notice. On cancellation, the

Supplier is no longer required to provide the Maintenance Services and

AEMO will not be required to pay the Maintenance Services Fees.

19.5 Termination for cause by AEMO

AEMO may terminate this agreement immediately by notice to the Supplier if

the Supplier commits a material breach of this agreement and:

(a) the breach is not capable of being cured; or

(b) the breach is capable of being cured but the Supplier fails to cure the

breach within 30 days of receiving a notice requiring it to rectify the

breach.

19.6 Termination by AEMO

Without limiting clause 19.4, AEMO may terminate this agreement as

provided in clauses 6.3, 6.5 and 8.2(c).

19.7 Non-exclusive remedies of AEMO

If this agreement terminates due to breach by the Supplier, AEMO may,

without limiting any other right or remedy, do any one or more of the

following:

(a) if this agreement is terminated under clauses 6.3 or 6.5, AEMO may

recover from the Supplier (as a debt) the amount of any payments

made to the Supplier under this agreement together with interest

calculated from the payment date to the date of refund at the 30 day

Australian Treasury Bill rate plus 5%;

(b) AEMO may recover from the Supplier (as a debt) the amount of any

payments made to Supplier under this agreement for:

(i) any Deliverables or any part of the System not delivered; or

(ii) Services not provided,


25

together with interest calculated from the payment date to the date of

refund at the 30 day Australian Treasury Bill rate plus 5%;

(c) AEMO may purchase, from alternative suppliers, a system similar to

the System or services similar to the Services (“Agreement Items”)

and the Supplier will be liable to pay AEMO:

(i) the purchase price of the Agreement Items less the amount

payable to the Supplier for them, plus any amounts paid to the

Supplier for them; and

(ii) any costs involved in doing so; and

(d) AEMO may set off, or recover as a debt, any loss or damage suffered

or incurred by AEMO as a consequence of the termination of this

agreement, whether or not the loss or damage arose from one or more

breaches that gave rise to the right to terminate or from the

termination itself.

19.8 Partial termination

(a) In any of the circumstances in clause 19 in which AEMO may

terminate this agreement, AEMO may instead terminate any part of

this agreement (including part complete Deliverables or any part of

the Services).

(b) Supplier must continue to deliver the remainder of the System and

Deliverables and provide the remainder of the Services.

(c) Any such partial termination will lead to a reduction in the Fees for

the remainder of the System, Deliverables or Services and the parties

will agree in good faith all required consequential amendments.

(d) Subject to any consequential amendments required to this agreement

as a result of the partial termination, the parties will be subject to the

same rights and obligations as existed before the partial termination.

19.9 Disengagement

On termination of this agreement or cancellation of the Maintenance Services

under clause 19.4, the Supplier must do all things necessary, execute all

documents required and provide AEMO with all assistance AEMO

reasonably considers necessary or desirable, to enable services similar to the

Services to be provided to AEMO internally or by a replacement supplier, in

a manner that ensures orderly transition on exit and continuity of service to

AEMO, at AEMO’s cost. The Supplier must use reasonable endeavours to

minimise any such costs to AEMO.

19.10 Term of the Licence

The licence in clause 13.1 survives the termination (for any reason) or expiry

of this agreement.


26

20 Force majeure

20.1 Force Majeure Event

Neither party will be liable to the other for any delay or non-performance of

its obligations under this agreement to the extent to which it arises from any

Force Majeure Event.

20.2 Reasonable mitigation by Supplier

The Supplier must take all reasonable precautions, and implement reasonable

alternative measures in accordance with best industry practice to avoid or

mitigate the effects of any Force Majeure Event, including implementing

business continuity or disaster recovery plans and procedures.

20.3 Procedure for Force Majeure Events

A party whose performance under this agreement is affected by a Force

Majeure Event must:

(a) promptly notify the other party in writing of the Force Majeure Event

and the cause and the likely duration of any consequential delay or

non-performance of its obligations; and

(b) use all reasonable endeavours to avoid or mitigate the effect of the

event on the other party and the performance of the affected party’s

obligations and resume full performance of its obligations as soon as

reasonably possible, at no cost to the other party.

20.4 Effect on Fees

If the Supplier is affected by a Force Majeure Event, AEMO will not be

obliged to pay the Fees which relate to the Supplier’s obligations that are

affected by that Force Majeure Event for so long as the affected obligations

remain unperformed.

20.5 Termination

If a Force Majeure Event continues for a period of 20 Business Days or more,

AEMO may by notice to the Supplier terminate this agreement if the Force

Majeure Event materially affects the performance of this agreement or

materially impacts on the business of AEMO.

21 Insurance

21.1 Public Liability Insurance

The Supplier must maintain Public Liability Insurance for at least the

amounts specified in the Contract Details with an insurer reasonably

acceptable to AEMO during the period it provides the Deliverables, the

System and the Services.


27

21.2 Worker’s Compensation Insurance

During the Term, the Supplier must maintain worker’s compensation

insurance in accordance with applicable statutory requirements that cover the

Supplier for claims against it by any person employed or hired by the

Supplier who provides Services in relation to this agreement.

21.3 Evidence of currency

The Supplier must provide AEMO with evidence of the currency of the

required insurance on request.

22 Novation, assignment and subcontracting

22.1 Novation and assignment

(a) The Supplier must not novate, assign or otherwise deal with any of its

rights or obligations under this agreement without AEMO’s prior

consent.

(b) AEMO may novate, assign or otherwise deal with any of its rights or

obligations under this agreement upon giving notice to the Supplier

and the Supplier will promptly execute any documents necessary to

give effect to this.

22.2 Subcontracting

(a) The Supplier must not subcontract the performance of any of its

obligations under this agreement without AEMO’s consent. AEMO

consents to the use of the subcontractors listed at paragraph 5 of

Schedule 2, for the scope of work described in that paragraph.

(b) The Supplier remains responsible for the performance of any

obligations that it subcontracts and for the acts and omissions of its

subcontractors as if they were the Supplier’s acts and omissions.

23 Governance

23.1 Meetings and reports

The Supplier will ensure that the Supplier Contact (and other relevant

Supplier Personnel as AEMO may from time to time require) are available to

attend meetings on a regular basis as required by AEMO.

23.2 Form of Reports

(a) All Reports must be in the form reasonably required by AEMO from

time to time.

(b) If the form or content of a Report is not in accordance with this

agreement, AEMO may, without limiting any of its rights under this

agreement, require the Supplier to submit a revised Report

satisfactory to AEMO within 5 Business Days.


28

23.3 Retention of Records

The Supplier must retain all records relevant to this agreement and to the

Supplier’s performance of its obligations under this agreement for at least

seven years following the expiry or termination of this agreement.

23.4 Disputes

If a Dispute arises under this agreement, the parties will follow the process

described in Schedule 7.

24 Notices

24.1 Form

Unless expressly stated otherwise in this agreement, all notices, certificates,

consents, approvals, agreements, waivers and other communications under

this agreement (“Notices”) must be in writing, signed by the sender (if an

individual) or an authorised officer of the sender and marked for the attention

of the person shown in the Details or, if the recipient has notified otherwise,

then marked for attention in the last way notified.

24.2 Delivery

Notices must be:

(a) left at the address shown in the Details;

(b) sent by prepaid ordinary post (airmail if appropriate) to the address

shown in the Details;

(c) sent by fax to the fax number shown in the Details; or

(d) sent by electronic message to the email address shown in the Details.

If the intended recipient has notified a change of postal address or changed

fax number or email address, then the communications must be to that

address or number or email address.

24.3 When effective

Notices take effect from the time they are received unless a later time is

specified.

24.4 Receipt

Notices are taken to have been received:

(a) if sent by post, three days after posting (or seven days after posting if

sent to or from a place outside Australia);

(b) if sent by fax, at the time shown in the transmission report as the time

that the whole fax was sent; and


29

(c) if sent by electronic message, at the time shown in a report by the

computer from which the electronic message was sent, indicating that the

message was delivered in its entirety to the electronic mail address of the

recipient.

25 General

25.1 Independent contractor

The Supplier is engaged as a contractor and not as an agent of AEMO.

25.2 Entire agreement

This agreement constitutes the entire agreement between the parties relating

to its subject matter and supersedes all prior understandings, arrangements

and agreements between the parties.

25.3 Variation and waiver

A provision of this agreement or a right created under it, may not be varied or

waived except in writing, signed by an authorised officer of the party or

parties to be bound.

25.4 Discretion in exercising rights

A party may exercise a right or remedy or give or refuse its consent in any

way it considers appropriate (including by imposing conditions), unless this

agreement expressly states otherwise.

25.5 Partial exercise of rights

If a party does not exercise a right or remedy fully or at a given time, the

party may still exercise it later.

25.6 Approvals and consents

By giving its approval or consent, a party does not make or give any warranty

or representation as to any circumstance relating to the subject matter of the

consent or approval.

25.7 Remedies cumulative

The rights and remedies provided in this agreement are in addition to other

rights and remedies given by law independently of this agreement.

25.8 No merger

The warranties in this agreement do not merge under any circumstances

(including Acceptance).

25.9 Rights and obligations are unaffected

Rights given to the parties under this agreement and the parties’ liabilities

under it are not affected by anything which might otherwise affect them by

law.


30

25.10 Construction

No rule of construction applies to the disadvantage of a party because that

party was responsible for the preparation of, or seeks to rely on, this

agreement or any part of it.

25.11 Counterparts

This agreement may consist of a number of copies, each signed by one or

more parties to the agreement. If so, the signed copies are treated as making

up the one document and the date on which the last counterpart is executed

will be the date of the agreement.

25.12 Survival

Clauses 7, 13.3 to 13.6, 16, 17, 19, 25, 26 and 27 and any other provisions of

this agreement that expressly (or by necessary implication) survive the

termination (for any reason) or expiry of this agreement, survive such

termination or expiry, as do any rights and remedies that have accrued before

termination.

26 Governing Law

This agreement is governed by the law in force in the place specified in the

Details. Each party submits to the non-exclusive jurisdiction of the courts of

that place.

27 Interpretation

27.1 Definitions

The following meanings apply unless the contrary intention appears:

Acceptance means acceptance of the System or a Deliverable under clause 6.

Acceptance Certificate means a notice issued by AEMO under clause 6.2(b).

Acceptance Tests means testing the System and Deliverables for Defects.

Acceptance Test Period means the period for conducting Acceptance Tests

specified in the Project Plan.

Acceptance Test Plan means the plan agreed by the parties as described in

clause 6.1.

Additional Services has the meaning given in clause 10.1.

AEMO Contact means the person appointed by AEMO as its Contact as

described in clause 11.5.

AEMO Inputs has the meaning given in clause 1.3.

AEMO Material means all Material provided by AEMO to Supplier for the

purposes of this agreement.


31

AEMO Personnel means all employees, agents, officers and directors of

AEMO.

AEMO Site means the AEMO location where Supplier is required under this

agreement to deliver the System and to provide the Services as specified at

paragraph 4 of Schedule 1.

AEMO Systems means the systems listed in paragraph 5 of Schedule 1.

Amount of the Consideration means:

(a) the amount of any payment in connection with a supply; and

(b) in relation to non-monetary consideration in connection with a

supply, the GST Exclusive Market Value of that consideration as

reasonably determined by the party making the supply.

Business Day means a day other than a Saturday, a Sunday or a public

holiday in Melbourne, Victoria or Sydney, New South Wales or Brisbane,

Queensland.

Claim means any allegation, claim, proceeding, suit or demand.

Commencement Date means the date of this agreement as specified in the

Details.

Confidential Information means all Information disclosed to the Recipient

by the Discloser or disclosed by a third party which the Discloser is required

to keep confidential, including:

(a) any drawings provided by AEMO to the Supplier; and

(b) information which, either orally or in writing, is designated or

indicated as being the proprietary or confidential information of the

Discloser or any of its Related Bodies Corporate or a third party to

whom the Discloser owes an obligation of confidentiality; and

(c) information derived or produced partly or wholly from the

Information including without limitation any calculation, conclusion,

summary or computer modelling; and

(d) information which is capable of protection at law or in equity as

confidential information,

whether the Information was disclosed:

(e) orally, in writing or in electronic or machine readable form;

(f) before, on or after the date of this agreement; or

(g) by the Disclosing Party, any of its Representatives, any of its Related

Bodies Corporate, any Representatives of its Related Bodies

Corporate or by any third person.

Contact has the meaning given in clause 11.5(a).


32

Controller has the meaning it has in the Corporations Act.

Corporations Act means the Corporations Act 2001 (Cth).

Decommissioning Services means all Services pertaining to the

decommissioning and removal of existing AEMO Systems, including the

Services identified at paragraph 1.1 of Schedule 2.

Defect means:

(a) a failure of the System or any Deliverable to meet any of the

requirements of this agreement, including the Specifications; or

(b) any part of the System (including data written by the System):

(i) causes an error message to be displayed by the system that it

is running on or being accessed from;

(ii) results in the System doing something that it was not designed

to do; or

(iii) results in the System not doing something that it was designed

to do; or

(c) any defect covered by an OEM Warranty.

Deliverables means:

(a) the deliverables listed in paragraph 3 of Schedule 1, including the

Documentation and the System (and each part of the System);

(b) New Releases and Updates; and

(c) any deliverables provided as part of or in connection with any

Additional Services.

Detailed Project Plan means the Project Plan to be developed and approved

by AEMO as described in clause 2.1 and in paragraph 1.2 of Schedule 5.

Details means the section in this agreement headed “Details”.

Developed Intellectual Property Rights means Intellectual Property Rights

created by or on behalf of Supplier (or any sub-contractor) in performing

obligations under this agreement (including any Intellectual Property Rights

in the Developed Software).

Developed Software means software developed by Supplier (or any sub-

contractor) under this agreement as part of the performance of this agreement

by Supplier, including any software developed to interface and integrate the

System, and including the software specified at paragraph 1 of Schedule 6.

Disclosing Party has the meaning given in clause 16.1.

Dispute includes any dispute, controversy, difference or claim arising out of

or in connection with this agreement or the subject matter of this agreement,


33

including any question concerning its formation, validity, interpretation,

breach or termination.

Documentation means:

(a) the documentation described in paragraph 3 of Schedule 1; and

(b) any other documentation provided to AEMO by, or on behalf of,

Supplier under this agreement; and

(c) any changes (including additions) to the documentation described in

paragraphs (a) and (b).

Equipment means the equipment that forms part of the System, including the

Equipment listed at paragraph 2 of Schedule 6.

Excluded Information means Confidential Information which:

(a) is in or becomes part of the public domain otherwise than through

breach of this agreement or an obligation of confidence owed to the

Disclosing Party or any Related Body Corporate or Representative of

the Disclosing Party; or

(b) the Recipient can prove by contemporaneous written documentation

was already known to it at the time of disclosure by the Disclosing

Party or its Representatives (unless such knowledge arose from

disclosure of information in breach of an obligation of

confidentiality); or

(c) the Recipient acquires from a source other than the Disclosing Party

or any Related Body Corporate or Representative of the Disclosing

Party where such source is entitled to disclose it.

Fees means the fees set out in Schedule 4.

Final Acceptance Certificate means a notice issued by AEMO under clause

6.2(c).

Force Majeure Event means:

(a) natural disaster, governmental intervention, war, fire, flood,

explosion, theft of material items, civil commotion, armed hostilities,

act of terrorism, revolution;

(b) blockade, picket, embargo, strike, lock-out, sit-in, industrial or trade

dispute to the extent to which those things do not involve employees

of the party claiming relief;

(c) any event including any act or omission of any third party (other than

a subcontractor) beyond its reasonable control which could not

reasonably be planned for or avoided.

Government Agency means any governmental, semi-governmental,

administrative, fiscal, judicial or quasi-judicial body, department,

commission, authority, tribunal, agency or entity having jurisdiction over, or


34

any administrative responsibilities for or in connection with, AEMO or this

agreement.

GST means the tax imposed by the GST Act and the related imposition Acts

of the Commonwealth.

GST Act means the A New Tax System (Goods and Services Tax) Act 1999

(Cth), as amended from time to time.

GST Exclusive Market Value has the meaning given in the GST Act.

High Level Project Plan means the Project Plan set out at paragraph 1.1 of

Schedule 5.

Information means all information regardless of its Material Form, relating

to or developed in connection with:

(a) the business, technology or other affairs of the Disclosing Party or

any Related Body Corporate of the Disclosing Party;

(b) any systems, technology, ideas, concepts, know-how, techniques,

designs, specifications, blueprints, tracings, diagrams, models,

functions, capabilities and designs (including computer software,

manufacturing processes or other information embodied in drawings

or specifications), intellectual property or any other information which

is marked “confidential” or is otherwise indicated to be subject to an

obligation of confidence, owned or used by or licensed to the

Disclosing Party or a Related Body Corporate of the Disclosing Party.

Input Tax Credit has the meaning given in the GST Act.

A person is Insolvent if:

(a) it is (or states that it is) an insolvent under administration or insolvent

(each as defined in the Corporations Act);

(b) it has had a Controller appointed, or is in liquidation, in provisional

liquidation, under administration or wound up or has had a Receiver

appointed to any part of its property;

(c) it is subject to any arrangement, assignment, moratorium or

composition, protected from creditors under any statute or dissolved

(in each case, other than to carry out a reconstruction or amalgamation

while solvent on terms approved by the other parties to this

agreement);

(d) an application or order has been made, resolution passed, proposal put

forward, or any other action taken, in each case in connection with

that person, which is preparatory to or could result in any of (a), (b) or

(c);

(e) it is taken (under section 459(F)(1) of the Corporations Act) to have

failed to comply with a statutory demand;


35

(f) it is the subject of an event described in section 459(C)(2)(b) or

section 585 of the Corporations Act (or it makes a statement from

which another party to this agreement reasonably deduces it is so

subject);

(g) it is otherwise unable to pay its debts when they fall due; or

(h) something having a substantially similar effect to any or all of (a) to

(g) happens in connection with that person under the law of any

jurisdiction.

Intellectual Property Rights means all intellectual property rights including

current and future registered and unregistered rights in respect of copyright,

designs, circuit layouts, trade marks, trade secrets, know-how, confidential

information, patents, invention and discoveries and all other intellectual

property as defined in article 2 of the convention establishing the World

Intellectual Property Organisation 1967.

Key Personnel and their roles are identified in paragraph 4 of Schedule 2.

Licensed Software means all software or Documentation owned by, or

licensed to, Supplier or a sub-contractor and listed in paragraph 1.1 of

Schedule 6.

Maintenance Services means the services described in paragraph Error!

Reference source not found. of Schedule 2.

Maintenance Services Fees means the fees payable by AEMO for the

Maintenance Services, as described in Schedule 4.

Maintenance Services Term means the period commencing on the Go Live

Date and ending on the expiry of a period of twelve months, and continuing

thereafter until terminated by AEMO in accordance with clause Error!

Reference source not found..

Material includes information embodied or encoded in any form and

includes any form of storage from which the information can be reproduced.

Moral Rights means any moral rights including the rights described in

Article 6 of the Berne Convention for Protection of Literary and Artistic

Works 1886 (as amended and revised from time to time), being “droit moral”

or other analogous rights arising under any statute (including the Copyright

Act 1968 (Cth) or any other law of the Commonwealth of Australia), that

exist or that may come to exist, anywhere in the world.

New Release means software (other than an Update) that has been provided

primarily to provide an extension, alteration, improvement, or additional

functionality to the System or to the Software.

OEM Warranty has the meaning given in clause 7.7.

Payment Milestone means any date for provision of a Deliverable, a Service

or the System under the Project Plan, which is identified as a Payment

Milestone in the table set out at paragraph 2 of Schedule 4.


36

Practical Completion Date means the date on which the System is to be

fully installed and commissioned, as shown in paragraph 2 of Schedule 4.

Problem has the meaning given to it in Schedule 2.

Project means delivery of the System and Services by the Supplier in

accordance with and on the terms of this agreement.

Project Phase means a phase of the Project identified in the High Level

Project Plan.

Project Plan means the High Level Project Plan set out in Schedule 5 and,

when approved by AEMO, the Detailed Project Plan.

Receiver includes a receiver or receiver and manager.

Recipient has the meaning given in clause 16.1.

Rejection Notice means a notice issued by AEMO under clause 6.2(d)(i).

Related Body Corporate has the meaning given in the Corporations Act.

Reports means the reports specified in paragraph 3 of Schedule 1, and any

other reports that AEMO may reasonably require.

Representative of a party includes an employee, agent, officer, director,

auditor, adviser, partner, consultant, joint-venturer or sub-contractor of that

party (excluding, in the case of AEMO’s Representatives, Supplier).

Services means the services that Supplier is required to provide under this

agreement, including the following services specified in Schedule 2:

(a) the Decommissioning Services;

(b) the Supply and Installation Services;

(c) the Maintenance Services; and

(d) the Training Services.

“Services” includes all additional incidental services that the Supplier must

perform or provide to ensure that the System and the Services are delivered as

required by this agreement.

Service Level means a service level set out in Schedule 3.

Service Level Rebate means a fee rebate to which AEMO is entitled for a

Service Level failure in accordance with clause 8.2.

Services Request has the meaning given in clause 10.1.

Set Off means set off against either or both of:

(a) any or all of the amounts that AEMO owes to Supplier under this or

any other agreement; and


37

(b) any future payment obligations to Supplier under this or any other

agreement.

Software means the software that forms part of the System, including the

Licensed Software, the Third Party Software and the Developed Software

described at paragraph 1 of Schedule 6.

Source Code means:

(a) computer programs expressed in a source language or form which can

be interpreted or compiled and then executed by a computer as

commands; and

(b) all documentation and tools reasonably required to enable a person

familiar with computer programming to read, understand and modify

such computer programs.

Specifications means all of the requirements of this agreement, including the

functional and technical specifications as set out in Schedule 1 and the

Service Levels as set out in Schedule 3. Any Documentation containing any

technical information about or description of the System will be deemed to

form part of the Specifications. In the event of any inconsistency between

such Documentation and any requirements or specifications set out in this

agreement, the requirements or specifications set out in this agreement will

prevail.

Supplier Contact means the person appointed by the Supplier as its Contact

as described in clause 11.5.

Supplier Personnel means all employees, agents, consultants and contractors

of the Supplier or of any subcontractor, including all Key Personnel.

Supplier Proposal has the meaning given in clause 10.2.

Supply and Installation Services means all services pertaining to the supply,

installation and commissioning of the System, including the services

identified at paragraph 1.1 of Schedule 2.

System means:

(a) the combination of Software, Equipment and Services which

comprise a system that meets the Specifications; and

(b) any changes or additions (including Updates and New Releases) to

the Software, Equipment and Services referred to in paragraph (a).

System Warranty Period has the meaning given in paragraph (b) of the

definition of Warranty Period.

Tax Invoice has the meaning given in the GST Act.

Taxes means taxes, levies, imposts, charges and duties (including, stamp and

transaction duties) imposed by any Government Agency, together with any

related interest, penalties, fines and expenses in connection with them except


38

if imposed on, or calculated having regard to, the overall net income of

AEMO, but excluding GST.

Term has the meaning given in clause 19.1.

Third Party Software means all of the Software listed at paragraph 1.2 of

Schedule 6.

Training Services means the services set out in paragraph 3 of Schedule 2.

Update means software containing patches, bug fixes, Defect corrections,

changes, corrections for Problems and operating improvements since the last

issued Update that has been provided for the primary purpose of rectifying

Defects.

Warranted IP has the meaning given in clause 13.3.

Warranty Period means:

(a) in respect of a Deliverable, or a New Release or an Update, the period

commencing on the date of Acceptance of the Deliverable (or the

New Release or Update, as relevant) and ending 12 months later; and

(b) in respect of the System when complete in accordance with all of the

requirements of this agreement, the period commencing on the date of

issue by AEMO of the Final Acceptance Certificate and ending 12

months later, subject to extension under clause 10.5 (“System

Warranty Period”).

27.2 References to certain general terms

Unless the contrary intention appears, a reference in this agreement to:

(a) (variation or replacement) a document (including this agreement)

includes any variation or replacement of it;

(b) (clauses, annexures and schedules) a clause, Schedule, Annexure,

Attachment or Exhibit is a reference to a clause in, or a Schedule,

Annexure, Attachment or Exhibit to, this agreement;

(c) (singular includes plural) the singular includes the plural and vice

versa;

(d) (person) the word “person” includes an individual, a firm, a body

corporate, a partnership, joint venture, an unincorporated body or

association, or any Government Agency;

(e) (executors, administrators, successors) a particular person includes

a reference to the person’s executors. administrators, successors and

substitutes (including, persons taking by novation) and assigns;

(f) (reference to a group of persons) a group of persons or things is a

reference to any two or more of them jointly and to each of them

individually;


39

(g) (dollars) an amount of money is a reference to the lawful currency of

Australia;

(h) (calculation of time) a period of time that dates from a given day or

the day of an act or event is to be calculated exclusive of that day;

(i) (reference to a day) a day is to a calendar day and is to be interpreted

as the period of time commencing at midnight and ending 24 hours

later;

(j) (meaning not limited) the words “include”, “including”, “for

example” or “such as” are not to be interpreted as words of limitation,

and when such words introduce an example, they do not limit the

meaning of the words to which the example relates, or to examples of

a similar kind;

(k) (next day) if an act under this agreement to be done by a party on or

by a given day is done after 5.30pm on that day, it is taken to be done

on the next day;

(l) (time of day) time is a reference to Melbourne time; and

(m) (words and phrases) where a word or phrase is given a particular

meaning, other parts of speech or grammatical forms of that word or

phrase have corresponding meanings.

27.3 Headings

Headings are included for convenience only and do not affect the

interpretation of this agreement.

27.4 Inconsistency

If there is an inconsistency between a provision in clauses 1 to 27 and a

provision in a Schedule, Annexure, Attachment or Exhibit, the provision in

clauses 1 to 27 prevails to the extent of the inconsistency.

EXECUTED as an agreement



40

Schedule 1 - Specifications

1 Functionality

Supplier will deliver a System at the AEMO Site, with the following

functionality:

[Refer to Invitation to Tender – Details to be inserted]

The System shall comply with requirements listed in Appendix 1.

2 Performance

The System must meet the following performance requirements:

[Refer to Invitation to Tender – Details to be inserted]

3 Deliverables

Supplier will deliver the following Deliverables, Documentation and Reports:

The Instruction Manuals shall be prepared and submitted for inspection thirty

(30) Business Days before the date set for Practical Completion. All

alterations required shall be made and the manuals resubmitted before

Practical Completion is achieved.

The manuals, to be supplied in hard backed binders, shall comprise one (1)

set of record drawings and three (3) complete sets of instructions for

operation and maintaining the service.

Binders shall be 3 post hinged 250 mm x 320 mm hard vinyl covers of

adequate thickness, lettered in a contrasting colour on the face with the name

of the project and titled

"Mechanical Services - Operation and Maintenance".

Record drawings shall be "As Installed" full size prints folded to binder size

and heavily reinforced at the retaining posts.

The instruction for operating and maintaining the services shall detail:

• The installed services and describe the interrelated operation and use of the

systems in the various parts of the building.


41

• Safety features of equipment and controls.

• "As Installed" drawings.

4 AEMO Site

2 – 4 Elizabeth Macarthur Drive

Bella Vista, NSW 2153

Attention: Mohideen Gafoor

5 AEMO Systems

The System shall interface with AEMO Systems including the Energy

Management System (“EMS”), and other applications as required by AEMO.


42

Schedule 2 - Services

1 Services

1.1 Decommissioning Services

Decommissioning Services shall include the decommissioning, removal and

disposal of the existing UPS air conditioning systems at the AEMO Site in

accordance with sound environmental practices.

The Supplier shall use best endeavours to dispose of the existing UPS air

conditioning systems to maximise the recycling of components and minimise

the quantity of components disposed of at landfill.

The Supplier Contact will certify that the Decommissioning Services have

been performed in accordance with the requirements of this clause.

1.2 Supply and Installation Services

Supply and Installation Services at the AEMO Site shall include:

[Refer to Invitation to Tender - Details to be inserted]

2 Maintenance Services

2.1 General

Supplier will provide the Maintenance Services in accordance with the

Service Levels set out in Schedule 3.

2.2 Provision of Maintenance Services

Supplier will as part of the Maintenance Services:

(a) provide System support in the manner more fully described in

paragraph 2.3;


43

(b) Respond, Restore and Resolve Defects in accordance with the Service

Levels;

(c) provide a help desk to act as a point of contact for AEMO to request

Maintenance Services as more fully described in this Schedule;

(d) maintain the Documentation in the manner more fully described in

paragraph 2.6.

2.3 System support

Supplier will:

(b) maintain the System to keep it in good order and repair and furnish all

material and labour necessary for that purpose;

(c) replace or repair any item of Equipment which may prove defective;

(d) provide support (including problem determination, fix, repairs, testing

and implementation);

(e) make changes to the System to rectify Defects;

(f) keep detailed logs of all Defects, all remedial action taken and all

replaced parts, and provide copies to AEMO at AEMO’s request;

(g) carry out preventative maintenance in accordance with the

manufacturer’s specifications for the Equipment;

(h) implement engineering and safety changes for all Equipment as it

becomes available;

(i) make changes to the System that are required to maintain the

operability of the System in accordance with its Documentation and

Specifications after the implementation of New Releases of system

software and/or custom operations software including any coding

changes necessary;

(j) make changes to the System that Supplier elects to undertake to

improve the efficiency of the maintenance function;

(k) perform work necessary to test maintenance releases of interfacing

upstream or downstream systems;

(l) perform all work, including capacity upgrades, associated with

facilities management and configuration of application environments

for production support, maintenance and test environments;

(m) perform all work necessary to ensure all code associated with the

current release under maintenance and future maintenance releases is

configured and reproducible as deployed in production;

(n) provide feedback and status reports on the status of any unresolved

Defect reports in accordance with the frequency agreed between the

parties. Feedback and updates will be provided via telephone (and


44

any other means agreed between the parties in writing) to AEMO and

status updates must continue until Restoration or Resolution of the

Defect or as agreed by the parties;

(o) provide appropriately skilled and available technical support and

resources to solve problems relating to the installation,

commissioning and operations of the System;

(p) provide all services necessary to rectify Defects in the System so as to

maintain the operation of the System in accordance with its

Specifications, Documentation and the Service Levels including all

necessary testing;

(q) make provision for pre-tested spare parts, special tools and test

equipment;

(r) co-ordinate, where necessary, the provision of System support or on-

site assistance.

In connection with the Maintenance Services:

(s) “Respond” means a representative of Supplier responds to a Defect

report or other request for assistance from AEMO;

(t) “Restore” means restoration of functionality by means of a

temporary work-around; and

(u) “Resolve” means the Defect has been fully rectified.

(v) “Response”, “Restoration” and “Resolution” have cognate

meanings.

2.4 System support staff

The Supplier will ensure that all Supplier Personnel providing Maintenance

Services:

(a) are technically certified, skilled personnel who are experienced in the

handling of the System and all supported versions of the Software;

(b) can perform the Maintenance Services in relation to the System and

all versions of the Software to AEMO’s reasonable satisfaction;

(c) are fully conversant with the System and the Software; and

(d) have direct escalation to technical expertise to escalate resolution of

issues.

2.5 Trouble Reports

(a) AEMO will provide the Supplier with a “Trouble Report” in respect

of each Defect of which AEMO becomes aware, which may be given

by phone by email or by online access to an appropriate website (if

applicable) as agreed between the parties.


45

(b) The form and content of Trouble Reports provided by AEMO will be

agreed between the parties, but will, at a minimum, include:

(i) the type and classification of the relevant Defect;

(ii) if applicable, the time and date at which the relevant Defect

was reported by end user to AEMO;

(iii) if known, the time and date at which the relevant Defect

occurred;

(iv) a summary of the initial diagnostic procedures undertaken by

AEMO in respect of the relevant Defect and the results of

such procedures;

(v) a description of the suspected Defect;

(vi) whether the problem can be reproduced; and

(vii) if it can be reproduced, the steps required to reproduce the

problem.

(c) AEMO will record the date and time it provides the Supplier with a

Trouble Report and the date and time of the Supplier’s Response to

the Trouble Report.

(d) The Supplier will analyse, work to fix and resolve the cause of the

Defect, and deliver a documented, implementable and tested

Resolution to the Defect in accordance with the Service Levels.

Supplier will use all available troubleshooting techniques to analyse

problems up to and including reverse-engineering if necessary.

(e) A Trouble Report is taken to be Restored or Resolved when AEMO

agrees that the Supplier has provided a successful Restoration or

Resolution for the Defect.

(f) The Supplier acknowledges that the severity of a Defect can increase

or decrease at AEMO’s discretion according to changes in the impact

to AEMO and end users.

(g) The Supplier will prepare and maintain and provide AEMO with

access to a list of all unresolved Trouble Reports, including any

actions taken by Supplier to resolve such Trouble Reports. Supplier

will include Trouble Reports on such list on a real-time basis as such

reports are received from AEMO, and will continually update the list

as new Trouble Reports are received from AEMO or existing Trouble

Reports are resolved.

2.6 Documentation

Without limiting the Supplier’s obligations under this agreement, the Supplier

will amend or substitute the Documentation in order to address and

adequately explain the implications of:


46

(a) any substitution or modification of the Software or the System, if

such substitution or modification is likely to result in varying

operational procedures involving the use of the Software or the

System; and

(b) any Restoration or Resolution of a Defect or error in the Software or

2.7 Replacement and spare parts

(a) Title in all replacement parts for the System will pass to AEMO on

installation into the System. Title in parts replaced will pass to

Supplier on removal from the System by Supplier at the request of

AEMO.

(b) Supplier warrants that all replacement and spare parts provided by

Supplier under this agreement will be new.

(c) The Supplier shall provide to AEMO a list of recommended normal

maintenance replacement parts and any other devices necessary to

maintain the System over a ten year period from the Commencement

Date. The parts shall include lamp replacements, filters and shall be

listed by manufacturer and model number, with unit prices for

individual components, sub-assemblies, cards, and a total price for the

recommended package. The recommended list shall be based on

expected Mean-Time-Between-Failures of supplied System

equipment.

3 Training Services

At the AEMO Site, the Supplier will train up to [Insert number] persons (or

as otherwise agreed by the parties) as nominated by AEMO in the use and

maintenance of the Software and the System.

Training Services (and the associated materials) must be designed to take

each participant through how to use and maintain the Software and the

System, including explaining in a step by step manner what all of the major

functions are, what they are used for, how and when to carry them out, and

information regarding the installation, expansion and maintenance of the

System.

The training program will provide AEMO personnel with a thorough

understanding of the System, and prepare them to be self-sufficient in the

operation and routine maintenance of the display system.

Training Services must be carried out, and associated materials produced,

based on an assumption that the participants have no knowledge of the

Software or the System or the terminology associated with it.

Equipment Training

(a) Equipment Training shall familiarize AEMO's staff with the System

installation, operation, interfaces and cabling, equipment adjustment,

component level repair procedures, and recommended preventive

maintenance procedures.


47

Software Training

(b) The Software Training course shall enable AEMO's personnel to

operate, maintain, configure, and update the system software and

firmware provided with the System. The courses shall provide the

participants with thorough training on all system software and

software maintenance tools, diagnostics, external interfaces, and

techniques relating to the display controller.

Training Schedule

(c) The courses shall be given shortly after the installation of the System,

but prior to final acceptance. The hardware and software courses

shall not conflict, to allow overlap of participation. The Supplier shall

develop, and submit for AEMO's approval, a training schedule that

will provide training in a sequence appropriate to the overall system

implementation.

Training Manuals

(d) The Supplier will provide each person that attends training with one

copy of all of the materials (in both paper and electronic form) used

in performing the training, such as operating and maintenance

manuals, fabrication drawings and installation procedures, and field

update bulletins for all hardware and software.

(e) The Supplier shall prepare course guides and submit them to AEMO

for review and approval at least one week prior to the start of the

training courses. Upon completion of the training courses the course

guides, training manuals, and any other training aids used shall

become the property of AEMO.

4 Key Personnel

[To be inserted in accordance with respondent’s ITT response (Personnel).]

5 Approved sub-contractors

[To be inserted in accordance with respondent’s ITT response (Personnel)]



48

Schedule 3 - Service Levels

1 Service Levels

1.1 Availability - Maintenance Services

The Supplier’s telephone helpdesk must be available 24 hours a day, 7 days a

week, including public holidays. Maintenance Services shall be available on-

site within one working day of request.

1.2 First level support and second level support

AEMO shall provide first level support, including being first point of contact

for system queries, and undertaking minor repairs.

Where a query cannot be satisfactorily resolved by AEMO, it will contact the

supplier for second level support including non-routine queries requiring

specialised knowledge or expertise.

1.3 Response times

The Maintenance Services must meet the following response, follow up and

resolution times:

Service Level5 Service Level Target

Call Type Respond 1 Follow up 2 Resolution 3

Severity Level 1: Whole

system inoperative or

malfunctioned

[TBC] [TBC] [TBC]

Severity Level 2:

Two or more units

inoperative or

malfunctioned

[TBC] [TBC] [TBC]

Severity Level 3:

One unit inoperative or

malfunctioned

[TBC] [TBC] [TBC]

Respond 1

System installation or

operation question

[TBC]

System maintenance or [TBC]

5 Note to respondents: Respondents must provide timeframes for Respond, Follow up and Resolution for all Service Level.


49

technical question

1 For Severity Levels 1-3, measured from the time that AEMO notifies the

helpdesk to the time that one of the Supplier’s technical support staff

responds (ie calls back, faxes back, sends a reply email). For questions,

measured from the time that AEMO asks the question to the time that it is

satisfactorily answered.

2 Starts when AEMO notifies the helpdesk of the defect/problem and must be

continued until the Call Type is resolved.

3 Resolution period commences from when AEMO notifies the helpdesk of

the defect/problem.

1.4 Other

AEMO has the sole right (which it must exercise in good faith) to determine

when a Defect has been Restored or Resolved.

1.5 Service Level Review

When requested by AEMO, the parties will review the Service Levels and

mutually agree whether to:

(w) add to, delete or change the Services to be measured and the

corresponding Service Levels to reflect changes in AEMO’s business

operations; and

(x) improve the existing Service Levels, where warranted, to reflect

operational or technical improvements.



50

Schedule 4 - Fees

1 Fees

All fees are to be provided in Australian dollars.

[To be completed in accordance with the successful Tenderer’s response]

1.1 [System]

[To be inserted in accordance with successful Tenderer’s response.]

1.2 Maintenance Services Fees

[Note: Rectification of Defects will be at no additional costs]

[To be inserted in accordance with successful Tenderer’s response.

The agreed basis for payment of Maintenance Services Fees (e.g.,

monthly/quarterly in arrears will be set out here.]

1.3 Time and materials rates

[To be inserted in accordance with successful Tenderer’s response.]

2 Payment Milestones

[Notes:

(a) [To be inserted in accordance with successful Tenderer’s

response.].

(b) [AEMO may also, in its discretion, consider securing the successful

respondent’s performance by means of an unconditional bank

guarantee (or guarantees) which AEMO could draw upon in the

event of Supplier default. Such guarantee or guarantees would need

to satisfy certain minimum requirements, including:

(i) being issued by a financial institution registered in this

jurisdiction and having a branch in Melbourne;

(ii) the guarantee must be callable on demand by presentation

of an appropriate notice at such local bank branch,

and must otherwise be in a form that is acceptable to AEMO.]


51

Milestone Due Date Payment Amount

1 Execution of the Agreement At date of signature

2 Delivery of all components

to AEMO Site

[Insert Date]

3 Final Acceptance Certificate

and handover

[Insert Date] (or when

Acceptance Certificate

is issued)

4 Practical Completion Date

(subject to Milestone 3)

[Insert Date]

5 Expiry of Warranty Period [Insert Date]

3 Billing and payment details

3.1 AEMO’s billing address

[Details to be inserted]

3.2 Supplier’s payment details

[Details to be inserted]

[If AEMO requires payment by Electronic Funds Transfer, relevant details

to be inserted here - see note against clause 14.5 (Payment).]

4 Liquidated Damages

4.1 Liquidated Damages

If the Supplier fails to meet the Practical Completion Date, liquidated

damages will be applied one (1) Business Days after the Practical Completion

Date, calculated from the Practical Completion Date until the Supplier meets

all the requirements of the Practical Completion Date, at the rate of $1000 per

day.

4.2 Right of set off

AEMO may, without prejudice to any of its other rights under this agreement:

(a) deduct the liquidated damages from any amount owing to Supplier

under this agreement; or

(b) recover the amount as a debt due to AEMO by Supplier.


52

4.3 Liquidated damages not a penalty

The parties agree that any liquidated damages payable under paragraph 4 are

a genuine pre-estimate of damage and it is not intended by either of the

parties that the liquidated damages be regarded as a penalty.

4.4 Other remedies

The Supplier agrees that payment of liquidated damages are without prejudice

to any other rights of AEMO under this agreement or at law or in equity,

including the right to obtain further damages as a result of delay by the

Supplier.



53

Schedule 5 - Project Plan

[Project Plan to be inserted. Project Plan will be consistent with the Payment

Milestones set out in Schedule 4 (Fees).]

1 Project Plan Requirements

1.1 High Level Project Plan

[Note to Tenderers: the High Level Project Plan will be agreed to and

inserted here before signing.]

1.2 Detailed Project Plan

(a) Detailed Project Plans must include:

(i) a detailed description of the relevant Services;

(ii) a detailed description of Deliverables and Equipment to be

delivered;

(iii) detailed timelines and completion dates for all Services,

Deliverables and Equipment to be delivered; and

(iv) detailed timelines for acceptance tests, installation

completion, and delivery of warranty and maintenance

services.

(b) Detailed Project Plans must be sufficiently complete and detailed so

as to allow AEMO (or its nominee) to closely monitor the Supplier’s

progress in completing its obligations, should be in a form that would

ordinarily be used by a competent professional organisation

delivering complex air-conditioning systems and must otherwise be

satisfactory to AEMO (or to its nominee).



54

Schedule 6 - Software and Equipment

1 Software

1.1 Licensed Software

[Insert list]

1.2 Third Party Software

[Insert list]

2 Equipment

[Insert list]


55

Schedule 7 - Dispute Resolution Process

1 Negotiation

(a) A party (“Initiating Party”) claiming that a Dispute has arisen must

give the other party (“Recipient Party”) a notice setting out brief

details of the Dispute (“Dispute Notice”). Within 5 Business Days of

service of a Dispute Notice, the Recipient Party must give the

Initiating Party a notice setting out brief details of the Recipient

Party’s position on the Dispute (“Reply Notice”).

(b) If Dispute and Reply Notices are given, each party’s Contact must

meet at least once within 10 Business Days of service of a Reply

Notice and enter into good faith discussions with the objective of

settling the Dispute.

2 Escalation

(a) If the Dispute is not resolved in accordance with paragraph 1, either

party may, by notice, escalate the Dispute to the following senior

representatives of each party for resolution:

(i) for AEMO: [insert position]; and

(ii) for Supplier: [insert position].

(b) The senior representatives of each party will be provided with any

Dispute Notice and Reply Notice served under paragraph 1. If it

wishes to do so, the Initiating Party may serve an additional notice

setting out further brief details of the Dispute (“Further Dispute

Notice”), but must do so no later than 10 Business Days before any

meeting of the senior representatives. No later than 5 Business Days

before this meeting, the Recipient Party may give the Initiating Party

a notice setting out brief details of the Recipient Party’s position on

matters raised in the additional notice (“Further Reply Notice”).

(c) If Dispute and Reply Notices (or Further Dispute and Reply Notices)

are given, the senior representatives specified in paragraph 2(a) will

meet at least once within 25 Business Days of service of the notice of

escalation under paragraph 2(a) and enter into good faith discussions

with the objective of settling the Dispute.

3 Mediation

If the Dispute is not resolved in accordance with paragraphs 1 and 2, the

parties may agree to submit the Dispute to mediation in accordance with the

Australian Commercial Disputes Centre (ACDC) Guidelines for Commercial

Agreement. Such mediation will be conducted in Melbourne, Australia.


56

4 Appointment of mediator

The parties will agree on the appointment of mediator. If the parties do not

agree on the mediator to be appointed within 10 Business Days of either party

referring the Dispute to mediation, the mediator is to be appointed by the

ACDC in accordance with the ACDC Guidelines.

5 Termination of mediation

The mediation process will terminate within 30 days of the appointment of

the mediator, upon which either party will be entitled to proceed to take

whatever action it sees fit in connection with the Dispute, including

commencing litigation.

6 No proceedings

(a) Except in cases where it seeks urgent interlocutory relief, each party

agrees that it will not commence any legal proceedings or take any

other action in relation to the Dispute, without first following the

procedures set out in paragraphs 1 to 5.

(b) Nothing in this Schedule 7 will prevent a party from exercising any of

its other rights under this agreement, including a right of termination.



57

Schedule 8 - AEMO Inputs

AEMO will supply the following inputs as part of the delivery of services by the

Supplier:

(a) review and approval of Supplier’s designs and supporting

documentation;

(b) review and approval of Supplier's acceptance testing plans and

procedures;

(c) relevant information to assist with interfacing with AEMO Systems;

Schedule 9 - Original Equipment Manufacturer (OEM) warranties

[Insert list of components covered and if applicable attach original equipment

manufacturer warranties]


58

Signing page

DATED:______________________ 2016

SIGNED by [INSERT NAME] as

authorised representative for

AUSTRALIAN ENERGY

MARKET OPERATOR in the

presence of:

............................................................

Signature of witness

............................................................

Name of witness (block letters)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

............................................................

By executing this agreement the

signatory warrants that the signatory

is duly authorised to execute this

agreement on behalf of

AUSTRALIAN ENERGY

MARKET OPERATOR

SIGNED by [INSERT NAME] as

authorised representative for

[INSERT SUPPLIER’S FULL

COMPANY NAME] in the presence

of:

............................................................

Signature of witness

............................................................

Name of witness (block letters)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

............................................................

By executing this agreement the

signatory warrants that the signatory

is duly authorised to execute this

agreement on behalf of [INSERT

SUPPLIER’S FULL COMPANY

NAME]


59

Appendix 1 – Technical Specification

[Refer to the Invitation to Tender including Drawings – to be inserted]


60

Appendix 2 - Acceptance Test Plan

General

(a) Following installation of the System, the Supplier shall present the finished

System to AEMO for acceptance inspection and testing. Inspection and

testing shall not be deemed complete until AEMO provides written approval

of the installation and acceptance of successful testing.

(b) Acceptance Testing shall consist of an Installation Inspection, Integration

Test, and an Interface Test as follows:

Installation Inspection

(a) Upon completion of the installation by the Supplier, the Supplier shall present

the System for inspection.

(b) The Supplier must provide written approval of the successful completion of

Installation Inspection to AEMO before the Supplier can proceed to the

Integration Test, and Interface Test.

Integration Test

(a) Following the successful completion of the Installation Inspection, an AEMO

witnessed Integration Test shall be conducted by the Supplier in accordance

with AEMO approved test plan and procedures including testing all required

functional capabilities of the System.

(b) AEMO must provide written approval of the successful completion of

Integration Test.

Interface Test

(a) [Details to be inserted]

Date post:	10-Jul-2020
Category:	Documents
Upload:	others
View:	0 times
Download:	0 times

Supply and Services Agreement...8 Service Levels 11 8.1 Service Levels 11 ... Address Level 22, 230...

Documents