Schedule 3 - Module 2 (ICT Hardware and Associated Services)
Draft Module 2
ICT Hardware and Associated
Services Panel
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Contents
Schedule 3 – Module 2, Attachment 1 ICT Hardware and Associated Services Module
Glossary .......................................................................................................................................72
Schedule 3 – Module 2, Attachment 2 - ICT Hardware and Associated Services
(Deliverables and Pricing) ..........................................................................................................83
Part A - Standard Contract Terms .............................................................................................83
1
Definitions and Interpretation ....................................................................................83
2
Contract Period..........................................................................................................83
3
Delivery ......................................................................................................................84
4
Acceptance Testing ...................................................................................................84
5
Performance Management Framework ....................................................................86
6
Personnel ..................................................................................................................87
7
Subcontracting...........................................................................................................88
8
Charges .....................................................................................................................89
9
Contract Warranties ..................................................................................................90
10
Relationship ...............................................................................................................93
11
Contract Administration .............................................................................................94
12
Reporting and Policies and Procedures Manual .......................................................94
13
Circumstances Beyond Control.................................................................................95
14
Step-in Rights ............................................................................................................95
15
Books and Records ...................................................................................................98
16
Audit and Access .......................................................................................................98
17
Intellectual Property Rights .................................................................................... 101
18
Confidentiality ......................................................................................................... 102
19
Privacy .................................................................................................................... 104
20
Security ................................................................................................................... 105
21
Unconditional Financial Undertaking ..................................................................... 105
22
Performance Guarantee ......................................................................................... 106
23
Liability .................................................................................................................... 106
24
Indemnity ................................................................................................................ 107
25
Termination............................................................................................................. 109
26
Transition Out ......................................................................................................... 111
27
Variation ................................................................................................................. 113
28
Notices and other Communications ....................................................................... 114
29
Dispute resolution ................................................................................................... 115
30
Conflict of Interest .................................................................................................. 116
31
General ................................................................................................................... 117
32
Agency obligations ................................................................................................. 118
Part B - Module Specific Terms .............................................................................................. 119
33
Scope of Deliverables ............................................................................................ 119
34
Role of Finance ...................................................................................................... 119
35
Product and Service Catalogue ............................................................................. 120
36
Reporting ................................................................................................................ 123
37
Supply of Hardware ................................................................................................ 123
38
Leasing of Hardware .............................................................................................. 126
39
Standards and Codes............................................................................................. 126
40
Documentation ....................................................................................................... 127
41
Delivery Management ............................................................................................ 128
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42
43
Access .................................................................................................................... 131
Security ................................................................................................................... 132
Part C – Reporting Requirements .......................................................................................... 134
44
General ................................................................................................................... 134
Part D – Deliverables ............................................................................................................... 135
45
Deliverables ............................................................................................................ 135
Part E – Charges ...................................................................................................................... 136
46
Deliverables Charges ............................................................................................. 136
Schedule 3 – Module 2, Attachment 3 - ICT Hardware and Associated Services Contract Order Form ............................................................................................................... 137
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Schedule 3 – Module 2, Attachment 1 ICT Hardware and Associated Services
Module Glossary
TERM
DEFINITION
Acceptance
Signature, by the Agency Representative, of an Acceptance certificate in
accordance with clause 4 of the Standard Contract Terms; and "Accept"
and “Accepted” have a corresponding meaning.
Acceptance
Criteria
A list of criteria that the Deliverables must meet before the Agency will
Accept them, as set out in the Contract Order Form.
Acceptance
Testing
The testing of Deliverables against the Acceptance Criteria for the purpose
of Acceptance.
Agency Personnel
Any natural person who is an employee, director, officer, agent or
professional adviser of the Agency (not including Contractor Personnel)
and includes:
(a)
the Minister(s) responsible for the Agency and all staff of such
Minister's offices;
(b)
officers and employees within the Agency, including public servants
at all levels employed on a full-time, part-time, permanent, casual or
temporary basis;
(c)
contractors (including contractors providing outsourcing services to
the Agency) and agents which perform services for or on behalf of
the responsible Department; and
(d)
other Personnel as agreed between the Agency and the Contractor.
Agency Supplied
Item
The items to be provided or made available to the Contractor by the
Agency as set out in the Contract Order Form.
Application of
Asset Information
to Packaging
Optional service under Centralised Services, this addresses the
requirement for Contractors to provide and place asset labels including the
information on the Asset Tag on the outside of each item prior to delivery.
The format and content of the asset labels will be determined by the
Agency.
Application of
Asset Tags to
Hardware
Optional service under Centralised Services, this addresses the
requirement for Contractors to attach Asset Tags to the product prior to
delivery to the Agency.
The position of the Asset Tag will be determined by the Agency.
Asset and
Configuration
Control
An optional service under Centralised Services, this addresses the
requirement for the Agency designated order number to be included in
asset labels fixed to items being delivered.
Asset Tag
Means a label permanently attached to a product which, generally
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identifies the Agency which owns (or leases) the product and the unique
Agency asset number (in both character and bar-code form) assigned to
the product by the for the purpose of tracking the device.
Associated
Services
The services associated with or ancillary to the supply of Hardware as a
commodity item (such as installation, disposal of old equipment and extracting
and migrating data from old hardware) which are set out or referred to in Part D –
Deliverables and Part E – Charges.
Basic Installation
An optional service under Installation Services, Basic Installation services
include:
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The provision of detailed and comprehensive installation procedures
and schedules for Agency approval;
Cooperation with Agency Personnel involved in the installation task
including adapting Contractor installation procedures and schedules to
accommodate Agency requirements;
Receiving the product from Agency Personnel;
Un-packing, assembling (for example PCs, notebooks, monitors and
docking stations) and placing the ICT Hardware Product in situ;
Connecting the ICT Hardware Product to the power outlet and any
retained peripherals (e.g. local printers and special keyboards and
monitors) and powering-up;
Checking that the Operating System is active including, but not limited
to, checking configuration settings and testing relevant connections
and environmental management features;
Setting aside any ICT Hardware Product that fails to power-up;
Removing packaging boxes and other materials from the site for reuse
or recycling in an environmentally appropriate manner in accordance
with Commonwealth policies and industry best practice; and
Providing a report to the Agency setting out product asset numbers,
installation location (typically desk or workstation number), and status
of the ICT Hardware Products (e.g. “dead-on-arrival”). Agencies will
determine the testing to be carried out and the content and form of the
installation report.
BAFO
Best and Final Offer
Business Hours
Between 8:00am and 6:00pm on a Business Day.
Centralised
Services
Optional ICT Hardware support services including:
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Order monitoring - if requested by the Agency, and if feasible, the
Contractor should provide reasonable access for authorised Agency
Personnel to the Contractor’s inventory/logistics management or
equivalent systems in order to allow such Agency Personnel to monitor
progress on delivery of orders;
Reporting – provision of a spreadsheet containing asset information
data;
Contractor supplied technical support;
Hardware asset tags;
Application of Asset Tags to Hardware;
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Application of Asset Information to Packaging;
Asset and Configuration Control;
Pre-delivery Configuration and Pre-delivery Imaging;
Sanitisation; and
Disposal.
Common
Hardware
Requirements
Describes the requirements that should be met by all ICT Hardware
Products in the Desktop PC, Mobile PC, Virtual Desktop Devices and
Monitors Categories.
Common
Requirements
Describes the common requirements across all ICT Hardware Products
and Services within a Category, including associated Warranties and
Transport service requirements.
Contract
Contractor
Representative
The person identified as such in item 25 of the Contract Order Form.
Contract Order
Form
The details applicable to a Contract specified using the template set out at
Schedule 3 (Contract Order Form) of this Module.
Contract Terms
The contract terms and conditions set out at Schedule 3 Part A – Standard
Contract Terms and Part B – Module Specific Terms of this Module.
Contractor
Means [Insert name of Contractor] (ABN[Insert Contractor ABN])
Decommissioning
An optional service under Installation Services, Decommissioning and the
removal of ICT Hardware includes:
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Shutting down, powering-off and disconnecting the ICT Hardware from
the power outlet and network;
Disassembling and packing the ICT Hardware using environmentally
appropriate packaging materials to ensure that product is not damaged
in transit;
Stacking the ICT Hardware in an Agency designated location on-site
and handing-over the packaged product to the Agency Representative;
If required, updating Agency asset registers or configuration
management data-bases; and
Providing a report to the Agency setting out decommissioned product
asset numbers and status of the device (e.g. “missing keyboard”).
Agencies will determine the content and form of the de-commissioning
report.
Defect
Damage to or fault in the ICT Hardware Product which prevents it from
effectively meeting the Agency’s requirements. This includes faults in
workmanship, design and Materials.
Descriptors
The characteristics and descriptions of individual ICT Hardware Products
and Services.
Desktop PC
A personal computer and associated software and services conventionally
supplied to users at their desk. Includes case, internal hardware, mouse,
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keyboard, cables and a four year warranty from acceptance of the product
by the Agency. Items in this Category include:
 Standard Desktop PC;
 All-in-One PC; and
 Workstation PC.
Note: this does not include the Monitor.
It is mandatory for Non-corporate Commonwealth entities subject to the
PGPA Act to purchase Desktop PCs through the ICT Hardware Panel.
Desktop PC
Common
Requirements
Describes the requirements that should be met for all ICT Hardware
Products in the Desktop PC Category.
Disposal Services
An optional service under Centralised Services that includes:
 Collection of the designated product from the Agency;
 Transport to Contractor’s site;
 Any rectification of Product configurations that may be required prior
to return to Agency (if required);
 Return to Agency (if required);
 Purchase by Contractor, auction or other sale of product and return of
the proceeds to Agencies; and
 Arranging for the product to be recycled or otherwise disposed of.
Contractor’s disposal arrangements are also required to:
 Embody appropriate environmental practices in accordance with
Commonwealth policies and industry best practice;
 Provide quality assured sanitisation of the device (including the
removal of components) in accordance with the PSPF, ISM and any
specific Agency requirements, prior to removal of the product from
Agency sites;
 Provide the Agency with the Agency asset tag number associated
with machine serial number Agency for loading into the relevant asset
and configuration management databases in electronic form as a
CSV file;
 Provide the Agency with a report on the disposal including at least
Agency asset numbers, machine serial numbers, disposal action
taken, cost of disposal and (net) proceeds to be returned to the
Agency; and
 Provide the Agency with certification of disposal.
Where work is performed at the Contractor’s premises the Contractor's
premises may be subject to audit, inspection and approval by Agency
Personnel nominated by the Agency Representative.
Extended
Installation
An optional service under Installation Services, Extended Installation
includes Basic Installation plus a complete set-up and installation of all
functions as required by the Agency. Services may include:
 Connecting the ICT Hardware Product to the network and testing the
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connection;
Installing additional software and accessories;
Transferring data from the existing equipment to the new ICT
Hardware Product;
Testing ICT Hardware operability within the environment;
Updating Agency assets registers or configuration management databases; and
Providing a report to the Agency setting out ICT Hardware asset
numbers, installation location (typically desk or workstation number),
network address; and status of the device (e.g. “dead-on-arrival”).
Agencies will determine the testing, configuration, software loading
and data transfer work to be carried out and the content and form of
the installation report.
Hardware
Any physical item of computing equipment provided through (or likely to be
provided through in the case of the Road Map) the ICT Hardware and
Associated Services Panel (including any software or firmware embedded
in or supplied with that equipment any Documentation or other Documents
supplied with that equipment).
ICT Hardware
and Associated
Services
Deliverables
The ICT Hardware and Associated services or any part of them.
ICT Hardware
and Associated
Services Panel
The Panel that is established by the processes set out in the request for
tender RFT FIN14BPAM2335.
ICT Hardware
Deliverables
From the Commencement Date of this Module, any and all ICT Hardware
and Associated Services including any software and Documentation)
which are specified or referred to in Part D – Deliverables and Part E –
Charges which may be supplied by the Contractor under Contracts; and
From the date of commencement of the Product and Service Catalogue
referred to in clause 35 of the Module, the ICT Hardware and Associated
Services (including any software and Documentation) which are specified
in that Catalogue which may be supplied by the Contractor under
Contracts; and ‘Deliverables’ and ‘ICT Hardware Products and Services’
have a corresponding meaning.
ICT Hardware
Panel
Has the same meaning as ICT Hardware and Associated Services Panel
or Panel.
ICT Hardware
Products and
Services
Products and services available to Agencies through the ICT Hardware
Panel.
Installation
Services
Optional support services for the installation of equipment supplied through
the ICT Hardware Panel. This includes Basic Installation, Extended
Installation, Support and Floor Walking, and Decommissioning.
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Key Person
A person filling a position that requires highly specialised skills or such
capabilities that are crucial to the provision of the Deliverables, as
specified in any Contract.
Major Applicable
Standards,
Policies and
References
For this Module 2, the Major Applicable Standards comprise:
(a)
Joint Accreditation System of Australia and New Zealand (JASANZ); and
(b)
ISO 9001.
For this Module 2, the Major Applicable Policies comprise:
(c)
National Code of Practice for the Preparation of Safety Data Sheets
for Hazardous Chemicals for Hazardous Chemicals;
(d)
Australian Government Protective Security Policy Framework
(PSPF) (http://www.protectivesecurity.gov.au/Pages/default.aspx);
and
(e)
Information Security Manual (ISM)
(http://www.dsd.gov.au/infosec/ism/).
For this Module 2, the Major Applicable References comprise:
(f)
ENERGY STAR®.
Make
Type or brand of ICT Hardware Product.
Metropolitan
Means Commonwealth facilities located within 150km of the GPO for all
Australian capital cities.
Mobile PC
Portable personal computer, as well as associated software and services
conventionally carried by users for use while travelling or at multiple
locations. Includes case, internal hardware, Display LCD, wireless,
keyboard (where applicable), cables and a three year warranty from
acceptance of the product by the Agency. Items in this Category include:
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Standard Notebook;
Ultra-Mobile PC; and
Tablets.
It is mandatory for Non-corporate Commonwealth entities subject to the
PGPA Act to purchase Mobile PCs through the ICT Hardware Panel.
Mobile PC
Common
Requirements
Describes the requirements that should be met for all ICT Hardware
Products in the Mobile PC Category.
Mobile Thin Client
Mobile Thin Clients are used for a variety of specialised tasks. Computing
functionality offered will be similar to the Thin Client, but delivered in a
mobile form factor. This requirement includes device types such as
Chrome books and other Web OS Thin Client types.
Module 2
The ICT Hardware and Associated Services Panel.
Module 2
Commencement
Date
The date that the first Head Agreement or, if the Contractor was already a
member of the Data Centre Facilities Supplies Panel (Module 1), Change
Order is signed by both Finance and a Contractor for the provision of ICT
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Hardware Products and Services.
Monitors
Screens for personal computers, as well as associated software and
services. Includes LCD display and a standard warranty of four years
(which includes a zero pixel Defect warranty) from acceptance of the
product by the Agency. All Monitors are required to be able to be installed
without the need for installation drivers onto the Agency SOE.
It is mandatory for Non-corporate Commonwealth entities subject to the
PGPA Act to purchase Monitors through the ICT Hardware Panel.
Notebook
A portable Input/Display device, which may operate LAN connected,
disconnected or connected via an approved secure dialup link.
PC
Personal Computer.
PGPA Act
The Public Governance, Performance and Accountability Act 2013 (Cth).
Pre-delivery
Configuration
An optional service under Centralised Services, this addresses the
requirement for the Contractor to provide the Agency with a list of available
BIOS and pre-loaded OS image (and any other configuration options) if
applicable for the ordered product, including the Contractor’s proposed
default settings, prior to dispatch of the product.
The Agency will review the configuration information and advise the
Contractor how the product is to be configured. The Contractor will
configure the Product as required by the Agency.
The Contractor is also required to assist in determining the appropriate
configuration of the product if requested by the Agency.
Pre-delivery
Imaging
An optional service under Centralised Services, this addresses the
provision of pre-delivery software imaging services allowing a Standard
Operating Environment image, provided by an Agency, to be installed on
the product prior to delivery.
The Contractor is required to:
 Manage the imaging requirements of the relevant Agency including
version control;
 Capacity to apply SOE images to products at the volume levels
required by the relevant Agencies;
 Assist Agencies in the development and testing of their respective
image, including the provision of pre-production samples of products
if required; and
 Established, to the satisfaction of Finance, processes in the area of
imaging, in particular quality assurance, configuration management
and licensing control processes and security processes.
Agencies will determine the level of assistance that they require with
imaging.
Product and
Service
The Product and Services catalogue that specifies the baseline
Specifications of each category developed as set out in Part D-
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Catalogue
Deliverables.
Project Plan
A plan for the delivery of Deliverables developed in accordance with
clause 32.2For each Contract, unless otherwise specified in the Contract
Order Form, the Contractor must develop a document that includes:
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Rack Unit or RU
an outline of the proposed project management methodology;
the names, roles and responsibilities of any Key Personnel;
a schedule for provision and Acceptance of the Deliverables;
a list of all Milestones;
the proposed risk management approach;
a detailed risk register, updated from time to time; and
any other matter referred to in the Contract Order Form.
A standard measure used to describe the height of a rack mounted server
or piece of networking equipment. One Unit is equivalent to 1.75 inches.
Data centres use RU to express the height of racks within their facility.
Under the ICT Hardware Panel there are options for 42 RU, 45 RU and 48
RU racks.
Regional
Commonwealth facilities outside of the Metropolitan area located in
regional Australian cities including, for example, Orange, Wangaratta,
Mackay, Geraldton, Whyalla, Alice Springs and Launceston.
Reseller
An agent appointed by the Contractor to supply ICT Hardware Products
and/or Services on behalf of the Contractor.
Road Map
A schedule setting out in detail the planned changes to the Hardware
specified in the Product and Service Catalogue, including any changes to
model availability and specific components.
Rural
Commonwealth facilities located outside of the Metropolitan and Regional
areas which may be remote and/or have poor or limited infrastructure
services.
Sanitisation
An optional service under Centralised Services that includes:
 Sanitisation of the device (including the removal of components) in
accordance with the PSPF, ISM and any specific Agency
requirements, prior to removal of the product from Agency sites;
 Return of removed components to the Agency or their destruction in
accordance with the PSPF (and any specific Agency requirements);
 Report on the sanitisation including at least Agency asset numbers,
machine and removed component serial numbers (if applicable), and
sanitisation action taken; and
 Certification that the product has been cleansed in accordance with
these requirements.
Where work is performed at the Contractor’s premises the Contractor's
premises may be subject to audit, inspection and approval by Agency
Personnel nominated by the relevant Agency Representative or by the
relevant Agency Representative;
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Agencies will determine the level of sanitisation required and whether it
can be performed at a secure facility rather than at Agency sites; and the
content and form of any report and certification required.
Server Racks
Server Racks or Racks are an optional component of the ICT Hardware
Panel and address the outright purchase of structures or cabinets that hold
computer servers and/or networking equipment.
Note: this must not conflict with the Australian Government Data Centre
Strategy 2010-2025 which is mandatory for Non-corporate Commonwealth
entities subject to the PGPA Act.
Note to Tenderers: Tenderers should also note that any tendered ICT
Hardware Products for this Category, or procurements of Server Racks
from the ICT Hardware Panel by Agencies after the ICT Hardware Panel is
established, must not conflict with the Australian Government Data Centre
Strategy 2010-2025 (the Strategy) which is mandatory for Non-corporate
Commonwealth entities subject to the PGPA Act. This extends to the
trigger events for adopting the Strategy, as well as the Data Centre
Facilities Panel (Panel 1) and the Data Centre Facilities Supplies Panel
(Panel 2).
Servers
This optional component of the ICT Hardware Panel addresses data
storage devices (such as those located in a data centre) that provide
services to other computers.
Servers are generally grouped into blade, rack and tower subcategories.
Shipping of ICT
Hardware
Products
A component under Transport Arrangements, this service includes the
delivery of:
Specifications
In order of priority
 A delivery schedule is provided to the Agency;
 ICT Hardware Products are packed in appropriate packaging
materials in order to ensure that ICT Hardware Products are not
damaged in transit or storage;
 ICT Hardware Products are packed using environmentally
appropriate packaging materials and techniques such as bulk
packaging;
 Pallets comply with the relevant Australian Standard and are not to be
packed any higher than 1.3m and wrapped with clear wrap;
 Agency required information including serial numbers, asset numbers
and order numbers are scannable on the outside of each item; and
 Agency order numbers, as specified in the Contract Order Form, are
placed on all delivery Documentation.
a. Any relevant specifications contained in the Product Catalogue;
b. The Agency’s functional and technology and technical
requirements for a Deliverable or for a group of Deliverables as
described or incorporated by reference in the Contract Order Form
including as updated from time to time in accordance with this
Module; and
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c. All applicable manufacturers’ or suppliers’ (including Resellers’)
specifications and applicable standards including as updated from
time to time in accordance with this Module.
Standard
Operating
Environment or
SOE
The standard IT operating environment which is maintained by an Agency.
Statement of
Requirements
The Statement of Requirements for the Product and Service Catalogue as
updated by Finance from time to time.
Statement of
Work
The statement set out in Annexure 1 (Statement of Work) specifying the
detailed requirements for the performance or provision of the Deliverables
under a particular Contract.
Support and Floor
Walking
An optional service under Installation Services, Support and Floor Walking
will generally be provided in conjunction with Extended Installation.
Services may include:
 Provision of on-site support to assist users with transition to the new
ICT Hardware Products including, but not limited to, arranging
access, operation of the ICT Hardware Product, connection to the
network, configuration of printers and other peripherals, and transfer
of data;
 Recording problems in the Agency problem management system,
resolving where possible and escalating when required; and
 Providing the Agency with a record of any outstanding problems by
user and product asset number at the end of the support period.
Agencies will determine the content and form of the report.
Temporary
Equipment
Storage
Agencies may require Contractors to provide temporary secure storage
services where, for instance, substantial volumes of product are ordered
but an Agency is not able to accept and install immediately. Contractors
will be responsible for all aspects of the storage services, including
insurance, security and the transport arrangements from the storage
facility to the Agency location.
The Contractor’s premises may be subject to audit and inspection by
Agency Personnel nominated by the relevant Agency Representative.
Thin Client
An ICT device (or client) which is limited to essential applications with the
actual data being stored on an external server.
This device is used for day-to-day network access and it is expected that
this will represent suitable capability for the vast majority of Agencies
where thin client computing has been deemed an appropriate solution.
All Common, Virtual Desktop Device and Associated Services
requirements apply to this category.
Transport
Arrangements
A component of Common Hardware Requirements, this addresses the
physical delivery of ICT Hardware Products to the Agency. The following
services are included in this:
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Just-in-time delivery arrangement: to avoid instances where Agencies
have to warehouse equipment, Contractors will plan the production,
imaging and configuration, packing, shipping and delivery of all ICT
Hardware Products and Services to be delivered to the Agency to meet
a ‘just in time’ ordering process;
Delivery timeline arrangements: the delivery location(s), contact
details, and delivery timeframes as specified in the Contract Order
Form;
Shipping of ICT Hardware Product;
Delivery locations and timing: the Contractor will contact the Agency
and arrange an acceptable delivery time for that location 24 hours prior
to delivery;
Containerised deliveries: if required, the Contractor will deliver ICT
Hardware Products in secure shipping containers that will be returned
to the Contractor within a mutually agreed timeframe;
Transport to Metropolitan, Regional and Rural locations as required by
the Agency; and
Temporary Equipment Storage.
Ultra Mobile PC
Often abbreviated as UMPC, is a term for lightweight small form factor size
and shape notebook categorised due to native use of SSD.
Virtual Desktop
Devices
This Category addresses devices used for day-to-day network access
outside Desktop PCs and Mobile PCs. This Category includes Thin Client
and Mobile Thin Client.
It is mandatory for Non-corporate Commonwealth entities subject to the
PGPA Act to purchase Virtual Desktop Devices through the ICT Hardware
Panel.
Warranty Period
For a Deliverable, has the meaning given in the applicable Product and
Service Catalogue or Statement of work for that Deliverable, or if no
meaning is given in the applicable Product Catalogue or statement of Work
for that Deliverable , then it means 48 months from Acceptance, or if
Acceptance is not require, form delivery or provision.
Warranty
Requirements
The minimum warranty conditions as defined under Clause 37.14 of
Schedule 3: Module that apply to Desktop PC, Mobile PC (excluding
tablets), Monitor and Virtual Desktop Devices Categories.
Warranty
Upgrade
Upgrade options available for Desktop PC, Mobile PC and Monitor
warranties including:
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Upgrade to 24x7 support;
Upgrade to next business day response;
Add additional year; and
Upgrade to International Warranty.
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Schedule 3 – Module 2, Attachment 2 - ICT Hardware and Associated Services
(Deliverables and Pricing)
Part A - Standard Contract Terms
1
Definitions and Interpretation
Definitions
1.1
In this Contract, except where the contrary intention is expressed, the definitions in
Schedule 1 - Attachment 1 (Head Agreement Glossary) and the relevant Module
Glossary apply.
Interpretation
1.2
This Contract is formed on agreement and execution of a Contract Order Form
between the Agency and the Contractor and will be interpreted in accordance with
clause 1.2 of the Head Agreement as if references to "Head Agreement" were
replaced by "Contract".
1.3
If there is any inconsistency between these Standard Contract Terms and the
Contract Order Form, the terms of the Contract Order Form (including any Additional
Terms) will prevail (subject to compliance with clauses 4.12 and 4.13 of the Head
Agreement).
2
Contract Period
Contract Period
2.1
This Contract begins on the Contract Start Date and continues for an Initial Contract
Period as specified in the Contract Order Form unless terminated in accordance with
clause 25 of this Contract.
Extensions
2.2
The Agency may extend the Initial Contract Period by a further period as specified in
the Contract Order Form (Contract Option Period) on the terms and conditions then
in effect (subject to clause 2.3), by giving written Notice to the Contractor. Such
Notice must be provided:
2.2.1
at least 20 Business Days before the end of the then current Contract
Period; or
2.2.2
within another period agreed in writing between the parties.
2.3
Where an extension is exercised in accordance with clause 2.2, the Charges in this
Contract Option Period will be the Charges applicable immediately before the
extension of the Initial Contract Period unless otherwise agreed in accordance with
clause 27 of this Contract and, if necessary, clause 22 of the Head Agreement. An
extension exercised in accordance with clause 2.2 takes effect from the end of the
then current Contract Period.
2.4
With the written approval of Finance, the Contract Period may extend beyond the
Term of the Head Agreement and the relevant Module.
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3
Delivery
Delivery
3.1
The Contractor must provide the Deliverables:
3.1.1
as detailed in Schedule 3 (Modules) for the relevant Deliverables, including
to achieve or exceed the Minimum Requirements applicable to the
Deliverables (if any):
3.1.2
as detailed in the Contract Order Form;
3.1.3
in accordance with this Contract;
3.1.4
with due skill and care and to the best of the Contractor's knowledge and
expertise and ability; and
3.1.5
in accordance with all relevant Laws.
Implementation
3.2
The Contractor must undertake all implementation activities specified in the Contract
Order Form, including cooperating with the Agency and its other contractors for the
purpose of facilitating the smooth transition of the provision of the Deliverables by the
Contractor.
Note: The Contract Order Form and Contract can include specific implementation
requirements.
Additional Deliverables
3.3
The Agency may, at any time during the Contract Period, place a Contract Order
Form in accordance with the Head Agreement (or vary an existing Contract Order
Form in accordance with this Contract) for the provision of Additional Deliverables. In
all cases the Agency must notify Finance in writing prior to the variation.
Benchmarking
3.4
The Agency may join in any benchmarking Finance undertakes of the Contractor's
provision of the Deliverables under clause 18 of the Head Agreement in respect of a
Module for which the Agency has a Contract.
Approved Third Party Providers
3.5
If an Approved Third Party Provider has issued the Contract Order Form to which the
terms of this Contract apply (in accordance with clauses 4.15 and 4.16 of the Head
Agreement) references to "Agency" in this Contract will apply as if they are references
to "Approved Third Party Provider".
3.6
Where clause 3.5 applies, the Contractor must only provide Deliverables to the
Approved Third Party Provider as part of the Approved Third Party Provider's
provision of information technology services to an Agency (or group of Agencies).
Any provision of the Deliverables by the Contractor in accordance with this Contract
for the Approved Third Party Provider's provision of services to any other customer
will constitute a material breach of this Contract to which clause 25.1.1 will apply.
4
Acceptance Testing
4.1
The Deliverables are subject to Acceptance by the Agency, unless specified
otherwise in the Contract Order Form.
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4.2
The Deliverables will be considered for Acceptance in accordance with the
requirements set out in this clause 4 and in the Contract Order Form.
4.3
Deliverables such as Documentation and other data items, that by their nature do not
require conduct of Acceptance Testing, will be considered for Acceptance on the
basis of their compliance with the Specifications or other criteria specified in the
Contract Order Form.
Note: The Contract Order Form will include the agreed Acceptance Test process or
the means of agreeing that Process. For example, the detail may be in an agreed
Acceptance Test Plan.
Acceptance Testing
4.4
The Contractor must carry out Acceptance Testing as agreed in the Contract Order
Form, to ensure that the Deliverables comply with the Specifications and in particular
the Acceptance Criteria in the Contract Order Form.
4.5
Unless specified to the contrary in clauses 4.6 or 4.7, the costs of complying with this
clause 4 will be borne by the Contractor.
4.6
The Contractor agrees that the Agency, or any of its contractors, may also carry out
the Acceptance Testing or any part of the Acceptance Testing. The direct costs of
the Agency undertaking the Acceptance Testing will be borne by the Agency unless
the testing shows that the Contractor failed to comply with the provisions of this
Contract, in which case the cost of the testing must be borne by the Contractor.
4.7
The Contractor must comply with any reasonable request by the Agency for further
testing in relation to the Deliverables.
4.8
The Contractor must allow the Agency or its authorised representative to observe the
performance of the Acceptance Testing or other tests by the Contractor.
4.9
If the Agency finds that the Contractor:
4.10
4.9.1
has satisfied the Acceptance Criteria, the Agency must within the time
frame specified in a Contract Order Form issue a certificate of Acceptance
in respect of that Acceptance Criteria in accordance with this Contract (and
the relevant Deliverables will then be deemed to have been Accepted by
the Agency); or
4.9.2
has not satisfied the Acceptance Criteria, the Contractor must (at no cost to
the Agency) do all things necessary to rectify any problems to ensure that
the Acceptance Criteria is met. The Acceptance Testing must be repeated
as soon as practicable or within the time period agreed by the parties after
notification from the Contractor that it believes it meets the Acceptance
Criteria, and this clause 4.9 will apply to the repeated Acceptance Testing.
If the Contractor does not comply with the Acceptance Criteria for relevant
Deliverables within:
4.10.1
15 Business Days after the commencement of Acceptance Testing for that
Deliverable; or
4.10.2
if further Acceptance Testing is required under clause 4.9.2, such further
period as is notified by the Agency,
the Agency may treat the non-compliance as a failure by the Contractor to comply
with the relevant obligation under this Contract.
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4.11
The issuing of a certificate of Acceptance in accordance with clause 4.9.1 is not a
waiver of rights; and the Agency may, in issuing a certificate of Acceptance, impose
such conditions and qualifications as it reasonably requires.
5
Performance Management Framework
5.1
The Contractor acknowledges and agrees that:
5.1.1
5.1.2
the Agency has relied on the Contractor's representations, as reflected in
this Contract, and on the Contractor's ability to:
(a)
meet each Milestone or Delivery Date for Deliverables as set out
in the Contract Order Form;
(b)
comply in full with the quality, architectural, functional and
performance requirements set out in the Contract Order Form for
the Deliverables, and
(c)
meet any performance management framework specified in the
Contract Order Form (including any Service Levels), or other
performance standards described in the Contract Order Form;
and
the Agency's value for money assessment of the Contractor's
representations depends on the Contractor complying in full with this
Contract.
5.2
The parties agree that the Charges will be adjusted to reflect the application of
Rebate Points or Service Credits in accordance with any performance management
framework specified in the Contract Order Form. The parties acknowledge that any
adjustment on this basis is reasonable and represents the reduced level of service
provided to the Agency.
5.3
The parties will comply with the details in any performance management framework
specified in the Contract Order Form, including in relation to measuring and reporting
on the Contractor's performance under this Contract.
Note: Specify agreed Service Levels or other performance framework (if any) as well
as Service Credit / Rebate Point (if any) regime in the Contract Order Form.
Reductions in Charges – Service Credits or Rebate Points
5.4
5.5
Where Service Credits/Rebate Points (if any) are incurred in accordance with
clause 5.2 and are notified by the Agency in writing as payable to the Agency, then:
5.4.1
the Contractor must adjust the next Invoice, or, where there are no more
Invoices, pay to the Agency on demand by the Agency, any Service
Credit/Rebate Point that corresponds to the failure to meet that Service
Level; or
5.4.2
the Agency may deduct any Service Credit/Rebate Point that corresponds
to the failure to meet that Service Level from Charges payable to the
Contractor.
The Contractor acknowledges that:
5.5.1
its failure to meet a Service Level may have a material adverse impact on
the business and operations of the Agency;
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5.5.2
Service Credits/Rebate Points represent a reduction in Charges to reflect
the provision by the Contractor of a lower level of service than is required of
it under this Contract as the case may be and constitute an agreed amount
by which the Charges may be reduced in accordance with this Contract.
5.6
Unless specified otherwise in a Contract Order Form, the Agency’s rights under
clauses 5.4 to 5.5 are in addition to, and do not waive, the Agency's right to seek any
other remedy under this Contract or at Law. However, any damages recovered by the
Agency under or in connection with this Contract will be reduced by the amount of
any Service Credits/Rebate Points (if any) which the Agency has been paid in respect
of the same event giving rise to the damage.
6
Personnel
General
6.1
The Contractor must, at its own cost, use such Personnel as are necessary to enable
it to fulfil its obligations under this Contract. The Contractor must ensure that
Contractor Personnel that it uses to perform this Contract have the requisite skills,
qualifications and experience for the tasks they are given.
6.2
The Contractor must:
6.2.1
provide, or procure the provision of, such information as can be lawfully
provided and which is reasonably requested by the Agency concerning the
Contractor Personnel it is using, or proposes to use, in performing its
obligations under this Contract;
6.2.2
provide suitable replacement Contractor Personnel should the Agency, for
security reasons, deny access to or request removal of any Contractor
Personnel. If the Agency requests the removal of any Contractor Personnel
for reasons not related to security, the Contractor must promptly address
the matter, which may involve replacement of any Contractor Personnel
approved by the Agency;
6.2.3
ensure Contractor Personnel comply with the Contractor's obligations in this
Contract; and
6.2.4
ensure Contractor Personnel, when on the Agency's premises or when
accessing the Agency's facilities and information, comply as necessary with
the reasonable requirements and directions of the Agency with regard to
conduct, behaviour, safety and security (including submitting to security
checks as required and complying with any obligation imposed on the
Agency by Law).
Key Personnel
6.3
The Contractor must ensure that each Key Person named in the Contract Order Form
is appointed to the role nominated for that person by the dates (if any) specified in the
Contract Order Form.
6.4
The Contractor must not remove any Key Person until agreed by the Agency in
writing, except where the removal arises as a result of the Key Person's voluntary
resignation, sickness or injury, internal promotion or involuntary termination of
employment for cause.
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6.5
Where clause 6.4 applies, the Contractor must provide replacement Key Persons
acceptable to the Agency at no additional cost to the Agency and at the earliest
opportunity. Any replacement Key Person must be approved by the Agency.
7
Subcontracting
7.1
Unless expressed otherwise in the Contract Order Form, the Contractor must:
7.1.1
not subcontract any aspect of the performance of this Contract without the
prior written Approval of the Agency, which Approval will not be
unreasonably withheld;
7.1.2
not subcontract on terms that would permit the Subcontractor to do or omit
to do something that would, if done or omitted to be done by the Contractor,
constitute a breach of this Contract;
7.1.3
not subcontract with an entity that:
7.1.4
(a)
has had a judicial decision against it (not including decisions
under appeal) relating to employee entitlements in respect of
which it has not paid any judgment amount;
(b)
is on, or which has one or more employees that are on, or which
is a member of an entity that is on, the Commonwealth's
consolidated list of individuals and entities to which terrorist asset
freezing applies; and
(c)
is named in a report tabled in the Australian Parliament by the
Workplace Gender Equality Agency as a supplier that has not
complied with the Workplace Gender Equality Act 2012 (Cth); and
ensure that any Subcontractor that is Approved is bound by, and complies
with, provisions to the effect of the following clauses of this Contract:
(a)
clause 21 (Audit and Access) of the Head Agreement;
(b)
clause 18 (Confidentiality);
(c)
clause 19 (Privacy);
(d)
clause 20 (Security);
(e)
clause 30 (Conflict of Interest); and
(f)
clause 25.4 (Termination and reduction for convenience).
7.2
The Contractor must provide the Agency with details of the subcontract (excluding
pricing) between the Contractor and the Subcontractor within five (5) Business Days
after receiving a request from the Agency to provide the subcontract.
7.3
At the Contract Start Date, the Subcontractors identified in the Contract Order Form
are approved Subcontractors under this Contract.
7.4
The Contractor must inform its Subcontractors that the Subcontractor's provision of
any Deliverables under this Contract may be disclosed publicly.
7.5
Approved Subcontractors will be specified in the Contract Order Form.
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8
Charges
8.1
Subject to this clause 8, the Agency will pay to the Contractor the Charges and
Approved Pass-Through Expenses specified in Part E (Charges) and the Contract
Order Form for the Deliverables. Charges payable in respect of a Contract will be
payable by the Agency subject to the Contractor performing the Contract, including
meeting any Milestones and achieving Acceptance of Deliverables by the Agency,
which are specified in that Contract.
8.2
The Agency will make payment within 20 Business Days after receipt of a correctly
rendered Tax Invoice.
8.3
In the event of a dispute as to whether an amount is payable pursuant to a Tax
Invoice, the Agency may withhold the disputed portion pending resolution of that
dispute in good faith but will, subject to clauses 8.6 to 8.8 pay the undisputed portion
within the period specified in clause 8.1.
8.4
The Charges include all costs and resources required by the Contractor to perform
this Contract.
Payment Not Evidence
8.5
The payment of moneys under an invoice is to be taken to be payment on account
only and any such payment is not to be taken as evidence against or an admission by
the Agency:
8.5.1
that any Deliverables or Charges specified in any invoice have been
performed in accordance with this Contract;
8.5.2
of the value of any Deliverables; or
8.5.3
of any Deliverables having been performed in accordance with this
Contract.
GST
8.6
All consideration provided under this Contract is exclusive of GST, unless it is
expressed to be GST inclusive.
8.7
Where a party (Supplier) makes a taxable supply to another party (Recipient) under
or in connection with this Contract, the Recipient must pay to the Supplier an
additional amount equal to the GST payable on the supply (unless the consideration
for that taxable supply is expressed to include GST). The additional amount must be
paid by the Recipient at the later of the following:
8.8
8.7.1
the date when any consideration for the taxable supply is first paid or
provided; and
8.7.2
the date when the Supplier issues a tax invoice to the Recipient.
If, under or in connection with this Contract, the Supplier has an adjustment for a
supply under the GST Law which varies the amount of GST payable by the Supplier,
the Supplier will adjust the amount payable by the Recipient to take account of the
varied GST amount. The Supplier must issue an adjustment note to the Recipient
within 20 Business Days after becoming aware of the adjustment.
Other GST Matters
8.9
If a party is entitled to be reimbursed or indemnified under this Contract, the amount
to be reimbursed or indemnified is reduced by the amount of GST for which there is
an entitlement to claim an input tax credit on an acquisition associated with the
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reimbursement or indemnity. The reduction is to be made before any increase under
clause 8.7. An entity is assumed to be entitled to a full input tax credit on an
acquisition associated with the reimbursement or indemnity unless it demonstrates
otherwise before the date the reimbursement or indemnity is made.
8.10
Any reference in this Contract to cost, expense, liability or similar amount (Expense)
is a reference to that Expense exclusive of GST (unless that Expense is expressed to
be GST inclusive).
9
Contract Warranties
Application of general warranties
9.1
The general warranties provided under this clause 9:
9.1.1
will survive the termination or expiry of this Contract; and
9.1.2
are in addition to, do not limit and are not limited by:
(a)
any warranties specific to the Deliverables;
(b)
warranties associated with Intellectual Property Rights;
(c)
any other warranties provided by either party under this Contract;
and
(d)
the warranties referred to in clause 9.12.
Contractor warranty - Contractor has informed itself
9.2
The Contractor warrants on the Contract Start Date that:
9.2.1
it has and will be deemed to have done everything possible to inform itself
fully and completely as to:
(a)
the requirements in this Contract;
(b)
the Law and the conditions, risks, contingencies and all other
factors which may affect the timing, scope, cost or effectiveness
of performing this Contract; and
(c)
all things necessary for delivery and management of this Contract
and the performance of the Contractor's obligations under this
Contract;
9.2.2
it enters into this Contract based on its own investigations, interpretations,
deductions, information and determinations;
9.2.3
without limiting clause 9.2.2, it does not rely on any representation,
warranty, condition or other conduct, information, statement or Document
which may have been made by the Agency or any person purporting to act
on behalf of the Agency in entering into this Contract, other than an express
warranty contained in this Contract;
9.2.4
it has:
(a)
the right to enter into this Contract;
(b)
full corporate power and authority; and
(c)
all rights, title, licences, interests and property necessary,
to lawfully enter into, perform and observe its obligations under this
Contract;
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9.2.5
the execution, delivery and performance of this Contract has been duly and
validly authorised by all necessary corporate action;
9.2.6
the Contractor’s signing, delivery and performance of this Contract does not
constitute:
9.2.7
(a)
a violation of any judgment, order or decree;
(b)
a material default under any agreement which relates in any way
to the provision of Deliverables; or
(c)
an event that would, with notice or lapse of time, constitute such a
default; and
to the best of its knowledge no Conflict of Interest exists or is likely to arise
in the performance of its obligations under this Contract.
Contractor warranty - skill and quality
9.3
The Contractor represents and warrants that it has, and the Contractor Personnel
have, and they will both continue to have and to use, the skills, qualifications and
experience to provide the Deliverables in a skilful, diligent, responsive, professional,
efficient and controlled manner, with a high degree of quality and to a standard that
complies with this Contract and meets the Agency's requirements as set out in the
Contract Order Form in full.
Contractor warranty - right to grant licences
9.4
The Contractor warrants that it has the right to grant all licences granted pursuant to
this Contract.
Contractor warranty - disclosure of proceedings and matters
9.5
The Contractor warrants that it has disclosed in writing to the Agency prior to the
Contract Start Date any matter that may affect the Contractor's reputation or the
Contractor's capacity or ability to perform and fulfil its obligations under this Contract,
including:
9.5.1
any relevant litigation, arbitration, mediation, conciliation, proceeding or
investigation that is taking place, pending or threatened (either in Australia
or overseas); and
9.5.2
any relevant matters relating to the commercial, technical or financial
capacity of the Contractor or of any Subcontractor proposed to be engaged
in respect of this Contract, including the existence of any breach, default or
alleged breach or default of any agreement, order or award that is binding
upon the Contractor.
Contractor warranty - Australian Government policy
9.6
The Contractor warrants on the Contract Start Date that:
9.6.1
it is not named by the Workplace Gender Equality Agency as an employer
that is currently not complying with the Workplace Gender Equality Act
2012 (Cth);
9.6.2
it has not had a judicial decision against it (not including decisions under
appeal) relating to employee entitlements in respect of which it has not paid
the judgment amount; and
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9.6.3
9.7
it is not on the Commonwealth's consolidated list of individuals and entities
to which terrorist asset freezing applies and none of its Personnel are on, or
a member of an entity on, that list,
The Contractor warrants that it will:
9.7.1
promptly notify and fully disclose to the Agency any event or occurrence
actual or threatened during the Contract Period that would materially affect
the Contractor's ability to perform any of its obligations under this Contract;
9.7.2
it will comply with the Australian Government's Indigenous Opportunities
Policy to the extent that policy applies to this Contract; and
9.7.3
it will comply with its AIP Plan.
Agency warranty - right to enter this Contract
9.8
The Agency warrants that it has the right and authority to enter into this Contract.
Third party warranties
9.9
If the Contractor delivers any item that has been procured from a third party, the
Contractor assigns to the Agency, to the extent permitted by Law, the benefits of the
warranties given by the third party and will do all things requested by the Agency to
enforce those warranties.
9.10
Nothing in clause 9.9 relieves the Contractor of the obligation to comply with
warranties offered directly by the Contractor.
Trustee Contractor
9.11
If the Contractor acts as trustee of a trust, in relation to this Contract:
9.11.1
it is liable both personally, and in its capacity as trustee of that trust;
9.11.2
it must not assign, transfer, mortgage, charge, release, waive, encumber or
compromise its right of indemnity out of the assets of that trust, but retain
and apply such indemnity only towards meeting its obligations under this
Contract;
9.11.3
it must not retire, resign nor by act or omission effect or facilitate a change
to its status as the sole trustee of that trust; and
9.11.4
it represents and warrants that:
(a)
such trust has been duly established and currently exists;
(b)
it is the duly appointed, current and only trustee of that trust;
(c)
as such trustee it has the power to enter into and perform its
obligations under this Contract;
(d)
it has an unqualified right of indemnity out of the assets of that
trust in respect of its obligations;
(e)
conflict of interest and duty affecting it as such trustee (and/or its
directors, if any) does not arise, or otherwise is overcome by the
terms of the relevant trust deed; and
(f)
no breach of the relevant trust deed exists or would arise.
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Effect of warranties
9.12
Nothing in this clause 9:
9.12.1
restricts the effect of any guarantees, conditions or warranties which may
be implied by the Competition and Consumer Act 2010 (Cth) or any sale of
goods or fair trading legislation; or
9.12.2
limits the Agency's right to take action on the basis of:
(a)
the Law that would be applied by the High Court of Australia in
respect of a breach of this Contract;
(b)
tort; or
(c)
any other Statutory cause of action.
9.13
The Contractor acknowledges that the Agency is entering into this Contract in
reliance on the warranties given by the Contractor in this clause 9 and the
Contractor's response to a RFQ.
10
Relationship
General obligations of the parties
10.1
10.2
10.3
Each party must:
10.1.1
diligently perform its obligations under this Contract; and
10.1.2
work together in a collaborative manner in good faith.
The Contractor must:
10.2.1
comply with any reasonable directions given by the Agency in respect of
this Contract; and
10.2.2
provide all reasonable assistance required by the Agency, provided that the
assistance requested is consistent with the Contractor's obligations under
this Contract.
If requested by the Agency, the Contractor must participate in any special forums or
meetings, at the Contractor's own expense, in relation to the operation of this
Contract.
Limitation of relationship
10.4
This Contract does not create a relationship of employment, agency or partnership
between the parties or their respective Personnel.
10.5
The parties must not represent themselves, and must ensure that their Personnel do
not represent themselves, as being an officer, employee, partner or agent of the other
party, or as otherwise able to bind or represent the other party.
10.6
The Contractor must clearly identify itself as a contractor to the Agency when
communicating through telephone, facsimile, email or any other method in the course
of performing this Contract.
Contractor's responsibilities
10.7
The Contractor is responsible for all wages, salaries and other payments to
Contractor Personnel and must fully comply with all relevant Laws and other
Commonwealth of Australia requirements in relation to Contractor Personnel
including labour and industrial relations Laws and those relating to working
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conditions, salary, wages, the payment of any relevant Tax, superannuation, 'pay as
you go' or other income Tax remissions and any other amounts, remissions
allowances including those under any industrial awards or agreements relevant to this
Contract. Upon request, the Contractor must demonstrate that it has complied with
these obligations.
10.8
11
Without limiting clause 10.7, the Contractor must:
10.8.1
comply with all applicable Laws and other requirements relating to the
security of payments that are due to persons;
10.8.2
ensure that payments made by the Contractor, including to Subcontractors,
are made in a timely manner; and
10.8.3
as far as practicable, ensure that disputes about any payments, whether to
Subcontractors or Contractor Personnel, are resolved in a reasonable,
timely and cooperative way.
Contract Administration
Representatives
11.1
The Contractor Representative is responsible for administration of this Contract for
the Contractor. The Agency Representative is responsible for administration of this
Contract for the Agency.
11.2
The Contractor Representative will be identified in the Contract Order Form.
11.3
The Agency Representative will be identified in the Contract Order Form.
11.4
The Contractor Representative and the Agency Representative may each delegate
their functions, or authorise that their functions be carried out on their behalf
(including by a third party). The Contractor or the Agency, as appropriate, will notify
the other party of any such delegation or authorisation.
12
Reporting and Policies and Procedures Manual
Reporting to the Agency
12.1
At no cost to the Agency, the Contractor must report to the Agency as specified in the
relevant Module and the Contract Order Form.
12.2
The Contractor must promptly provide additional information in respect of this
Contract as the Agency may reasonably request from time to time.
12.3
A copy of each report provided under this Contract must be given to Finance.
12.4
Without limiting clause 17, Intellectual Property Rights in all reports provided under
this Contract will vest in the Agency absolutely upon creation.
12.5
Subject to the Contractor complying with confidentiality obligations to the Agency, the
Agency grants to the Contractor an irrevocable, non-exclusive, world-wide, paid-up
licence to hold, use, reproduce, modify, display and sublicence the Intellectual
Property Rights in the reports for its own purposes at the Contractor's own risk. The
Agency is not liable in respect of any Loss caused by the Contractor's exercise of the
licence in this clause 12.5 and the Contractor releases and indemnifies the Agency in
respect of any such Loss.
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Policies and Procedures Manual
12.6
The Contractor must develop and maintain a Policies and Procedures Manual, which
details all aspects of the Contractor's provision of the Deliverables and such other
information specified in the Contract Order Form.
12.7
The Contractor must provide the Policies and Procedures Manual to the Agency for
the Agency's Acceptance within 60 Business Days after the Contract Start Date and
each anniversary of the Contract Start Date during the Contract Period.
13
Circumstances Beyond Control
13.1
If the Contractor is prevented from performing its obligations under this Contract due
to circumstances beyond the Contractor’s reasonable control (for example acts of
God, natural disasters, acts of war, riots and strikes outside that party’s organisation),
the Contractor must give Notice of such circumstances to the Agency Representative
(and providing a copy to the Finance Representative) as soon as possible, identifying
the specific effect those circumstances will have on its performance of this Contract.
13.2
The Contractor must make all reasonable efforts to minimise the effects on this
Contract of circumstances beyond the Contractor’s reasonable control.
13.3
If the Contractor is prevented from performing its obligations under this Contract due
to circumstances beyond the Contractor’s reasonable control, the Agency
Representative may approve an extension of time for the Contractor to perform the
affected obligations, provided that the Contractor has given the Agency
Representative all information or evidence required to demonstrate that the
Contractor's performance under this Contract is affected and that the Contractor has
otherwise complied with this clause 13 and notified Finance.
14
Step-in Rights
Issue of Step-In Notice
14.1
Without prejudice to any other right or remedy which an Agency may have under a
Contract or under any Law, if a Trigger Event occurs an Agency may, at its option,
give a Notice (Step-In Notice) to the Contractor. The Agency must provide a copy of
any Step-in Notice given under this clause 14.1 to Finance.
14.2
For the purposes of this clause 14, a Trigger Event occurs if:
14.2.1
any default or non-performance by the Contractor under a Contract which
substantially prevents, hinders, degrades or delays the performance of any
critical function of the relevant Agency;
14.2.2
in the Agency's reasonable opinion there has been substantial nonperformance by the Contractor of its obligations under the Contract;
14.2.3
the Contractor does not commence to remedy the relevant event
immediately after being given notice by the Agency Representative
requiring the Contractor to remedy the relevant event or fails to remedy the
relevant event within 20 Business Days (or such longer period as agreed by
the Agency) after being given that notice;
14.2.4
the Contractor seeks to terminate a Contract other than in accordance with
its legal rights under the Contract or at Law, or otherwise repudiates or
abandons a Contract; or
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14.2.5
an event referred to in clause 25.2 or clause 25.3 occurs in respect of the
Contractor.
Upon issue of Step-In Notice
14.3
Upon the issue of a Step-In Notice to the Contractor:
14.3.1
the Agency, after notifying Finance in writing, may take control of that part
or the whole of the provision of Deliverables under the affected Contract as
is necessary to exercise the Step-In Rights under this clause and to remedy
the Trigger Event;
14.3.2
the Agency may procure Similar Deliverables for the affected Agencies
elsewhere or make any other arrangements considered necessary by
Finance to maintain continuity of operations;
14.3.3
the Contractor agrees to provide all reasonable assistance to the Agency or
its nominee wherever and however reasonably possible to ensure that the
Agency is able to take the steps permitted under this clause 14, including
by:
(a)
14.4
the grant of royalty-free licences to the Agency to:
(i)
access the relevant part of the Contractor facilities and
use the Contractor's equipment, furnishings and fittings;
and
(ii)
use any Documentation and software, including
Intellectual Property Rights in that Documentation and
software, or other Material or intellectual property in
respect of which the Contractor has the necessary
ownership or usage rights, needed for the exercise of
the Agency's rights under this clause 14;
(b)
providing the Agency or its nominee with access to, and the use
of, relevant Contractor Personnel for no additional Charges; and
(c)
ensuring that the Agency or its nominee is able to assist the
Contractor to continue to meet the Contractor's ongoing
contractual or other obligations (other than obligations arising
under the Contract) that relate to the Contractor's activities
affected by the Step-In Notice, without any liability accruing to the
Agency or its nominee in respect of those obligations (but without
limitation to clause 14.14).
The steps which the Agency will be entitled to take in assuming control of the
provision of the part or the whole of the Deliverables, pursuant to this clause 14
include:
14.4.1
temporarily assuming total or partial possession, management and
operation of those parts of the Contractor's facilities which may be relevant
to ensure the provision of the Deliverables, or to remedy the Trigger Event;
14.4.2
such other steps as are, in the reasonable opinion of the Finance
Representative, necessary to safeguard the provision of the Deliverables as
required by the relevant Contract(s), or to remedy the Trigger Event; and
14.4.3
ceasing the exercise of any of its rights referred to above, to the extent and
for the period reasonably necessary as determined by the Agency having
regard to the Trigger Event giving rise to the relevant Step-In Notice.
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14.5
Upon the Agency or its nominee exercising any of its rights under this clause 14, the
Contractor's obligations under the relevant Contract to provide the Deliverables, or in
respect of which the Agency is exercising its rights under this clause, are suspended
to the extent and for such period as is necessary to permit the Agency to exercise
those rights.
Cost of exercising Step-In Rights
14.6
If the Agency exercises its rights under this clause 14, the Agency will be entitled to
retain from the Charges an amount equal to its or its nominee's reasonable costs and
any necessary capital expenditure (Reasonable Costs) required in exercising those
rights and, where appropriate, providing the relevant Deliverables.
14.7
If the Reasonable Costs calculated in accordance with clause 14.6 exceed the
Charges payable under the affected Contract(s), Finance or its nominee may recover
from the Contractor the difference between the Reasonable Costs and the Charges
that would otherwise have been payable to the Contractor for those Deliverables.
14.8
The Charges payable by the affected Agency (or Agencies) to the Contractor during
the period in which Finance exercises its rights under this clause 14 will be the
amount payable under the relevant Contract(s), after taking into account any rights
Finance may have to set off, retain or recover the Charges including under clauses
14.6 and 14.7.
Cessation of Step-In Rights
14.9
The Agency must cease to exercise its rights under this clause 14 if:
14.9.1
in its reasonable opinion, the Trigger Event is satisfactorily remedied or
resolved; and
14.9.2
the Agency is reasonably satisfied that there is no longer a material risk to
the provision of the Deliverables under the affected Contract.
Termination by the Agency
14.10
If the event giving rise to the Trigger Event has not been remedied or resolved within
a period of 20 Business Days from the date that the Step-In Notice was issued, or
such later date for remedy or resolution agreed to by the Agency and the Contractor,
the Agency, after notifying Finance in writing, may terminate this Contract in
accordance with clause 25.
14.11
Subject to the Contractor's right to receive any payments to be made under
clause 14.8, if the Contract is terminated in the circumstances referred to in
clause 14.10, the Contractor is not entitled to any termination compensation or
payment whatsoever, including any payment in relation to the remaining period of the
Contract.
Indemnity
14.12
Subject to clause 14.14, the Contractor indemnifies Finance and affected Agencies
against any Loss that Finance and affected Agencies incurs or suffers as a result of
exercising its Step-In Rights in accordance with this clause 14.
Other matters
14.13
No action of Finance or its nominee under this clause 14 limits or otherwise affects
the Contractor's liability to an Agency with respect to any default or non-performance
by, or other liability of, the Contractor under the relevant Contract(s).
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14.14
Subject to clause 14.6, the Contractor's liability under clauses 14.12 and 14.13 will
be reduced proportionately to the extent that any tortious (including negligent),
unlawful act or omission of Finance or an Agency (or their nominees) caused or
contributed to the Loss.
15
Books and Records
Maintenance of records
15.1
The Contractor must at all times maintain full, true, accurate and up-to-date accounts
and records relating to this Contract. Such accounts and records must:
15.1.1
include appropriate audit trails for transactions performed;
15.1.2
record all receipts and expenses in relation to the provision of Deliverables;
15.1.3
record all other matters on which the Contractor is required to report by this
Contract;
15.1.4
be kept in a manner that permits them to be conveniently and properly
audited, and enables the Charges and Approved Pass-Through Expenses
to be determined;
15.1.5
comply with any applicable Australian Accounting Standards; and
15.1.6
be made available to the Agency as required for monitoring and reviewing
the performance of the Contractor’s obligations under this Contract
including being available for audit and access in accordance with clause
16.
Subcontractor requirements
15.2
The Contractor must retain, and require its Subcontractors to retain, securely for a
period of seven years after termination or expiration of this Contract, whichever is
later, all accounts and records referred to in clause 15.1.
Survival
15.3
This clause 15applies for the Contract Period and for a period of seven years after
the termination or expiry of this Contract.
Archival requirements
15.4
The Contractor agrees to comply with any reasonable directions from the Agency with
respect to any applicable Commonwealth, State or Territory Laws relating to archival
requirements.
Costs
15.5
The Contractor must bear its own costs of complying with this clause 15.
16
Audit and Access
Note: It is intended that Finance and Agency will align any audits and that Finance
will be the lead Agency in relation to any audit.
Right to conduct audits
16.1
The Agency, or a person or organisation nominated by the Agency (Authorised
Investigator), may during Business Hours, on reasonable notice and with Finance's
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written approval, conduct audits relevant to the performance of the Contractor's
obligations under this Contract. Audits may be conducted of:
16.1.1
the Contractor's operational practices and procedures as they relate to this
Contract;
16.1.2
the Charges and the accuracy of the Contractor’s invoices and reports in
relation to the provision of Deliverables under this Contract;
16.1.3
the Contractor's compliance with its confidentiality, privacy and security and
other obligations under this Contract;
16.1.4
Material (including accounts and records) in the possession of the
Contractor relevant to the Deliverables or this Contract; and
16.1.5
any other matters reasonably determined by the Agency to be relevant to
the operations and the performance of the Deliverables or this Contract
excluding Contractor Proprietary Information.
Access by the Agency
16.2
The Authorised Investigator, may during Business Hours and on giving reasonable
Notice to the Contractor:
16.2.1
access the premises of the Contractor (including any Location from which
work under this Contract is Performed); and
16.2.2
inspect and copy relevant Documents, books and records, however stored,
in the possession, custody or control of the Contractor or its Personnel
for the purposes of this clause 16.
16.3
The Authorised Investigator must comply with the Contractor's Security Plan whilst on
the Contractor's premises.
16.4
The Contractor must comply with any request from the Agency, as applicable, for the
Contractor to:
16.4.1
give the Authorised Investigator copies of Documents, books, records and
information referred to in clause 16.2 in a data format and storage medium
accessible by the Authorised Investigator; and
16.4.2
provide assistance in respect of any inquiry into or concerning this Contract.
For this purpose, an inquiry includes any administrative or Statutory review,
audit or inquiry (whether within or external to the Agency organisation), any
request for information directed to the Agency, and any inquiry conducted
by Parliament or any Parliamentary committee, the Australian Information
Commissioner, the Freedom of Information Commissioner or the Privacy
Commissioner or, if the Agency is a State Agency, to the equivalent office
holders in that State or Territory.
Conduct of audit and access
16.5
The Contractor must provide:
16.5.1
access to the computer hardware and software of the Agency;
16.5.2
access to its computer hardware and software used in providing the
Deliverables to the extent necessary for the Authorised Investigator to
exercise its rights under this clause 16; and
16.5.3
the Authorised Investigator with any reasonable assistance requested by
the Authorised Investigator or to use that hardware and software.
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16.6
The Authorised Investigator must use reasonable endeavours to ensure that:
16.6.1
audits performed pursuant to clause 20.1; and
16.6.2
the exercise of the rights granted by this clause 16,
do not unreasonably delay or disrupt in any material respect the Contractor's
performance of its obligations under this Contract.
Costs
16.7
Subject to clause 20.9, each party must bear its own costs of all inspections, access
and audits.
16.8
If the Contractor is able to substantiate that it has incurred direct expenses in the
exercise by the Agency of the rights granted under this clause 16 which, having
regard to the value of this Contract, are substantial, the Agency and the Contractor
will negotiate an appropriate and reasonable reimbursement. Any reimbursement
must not be greater than the direct expenses incurred and substantiated, and will not
be payable if the audit reveals failures by the Contractor to comply with this Contract.
Auditor-General, Australian Information Commissioner, Privacy Commissioner and
Ombudsman
16.9
The rights of the Agency under this clause 16 apply equally to the Auditor-General,
the Australian Information Commissioner, the Freedom of Information Commissioner,
the Privacy Commissioner and the Ombudsman or a delegate of any of the
above-listed persons for the purpose of performing the Auditor-General's, the
Australian Information Commissioner, the Freedom of Information Commissioner's,
the Privacy Commissioner's or Ombudsman's Statutory functions or powers or, if the
Agency is a State Agency, to the equivalent office holders in that State or Territory
(each an Authorised Investigator).
Contractor to comply with Authorised Investigator's requirements
16.10
The Contractor must do all things necessary to comply with the requirements of an
Authorised Investigator, notified under clause 20.3Error! Reference source not
ound., provided such requirements are legally enforceable and within the power of
the Authorised Investigator.
No restriction
16.11
Nothing in this Contract reduces, limits or restricts in any way any Statutory function,
power, right or entitlement of an Authorised Investigator. The rights of the Agency
under this clause 16 are in addition to any other Statutory power, right or entitlement
of an Authorised Investigator.
No reduction in responsibility
16.12
The requirement for, and participation in, audits does not in any way reduce the
Contractor's responsibility to perform its obligations in accordance with this Contract.
Consequences of audit
16.13
The Contractor must promptly take, at no additional cost to the Agency, corrective
action to rectify any error, non-compliance or inaccuracy identified in any audit
relating to the way the Contractor has performed its obligations under this Contract.
16.14
If an audit reveals any overcharging, the Contractor must:
16.14.1
promptly refund any amounts overcharged to the Agency; and
16.14.2
pay to the Agency the cost of any auditor fees that the Agency has incurred.
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Survival
16.15
This clause 16 applies for the Contract Period and for a period of seven years after
the termination or expiry of this Contract.
17
Intellectual Property Rights
Intellectual Property Rights in New Material
17.1
Unless specified otherwise in a Contract Order Form and subject to this clause 17,
Intellectual Property Rights in any New Material vest in the Contractor absolutely
upon creation. Intellectual Property Rights in any reports required under this Contract
will vest in the Agency absolutely upon creation.
Note: To be determined by Agency after risk assessment.
17.2
The Contractor grants to the Agency an irrevocable, perpetual, non-exclusive, worldwide, paid-up licence to hold, use, execute, reproduce, upload, display, perform and
sublicense that New Material and to alter, enhance, and produce derivative works
from that New Material for use by the Agency but not to exploit that New Material for
commercial purposes.
17.3
To the extent any New Material incorporates or is delivered in conjunction with
Existing Material:
17.3.1
Intellectual Property Rights in that Existing Material are retained by the
owner of those Intellectual Property Rights absolutely; and
17.3.2
in respect of Intellectual Property Rights in the Existing Material as and to
the extent incorporated in New Material, the Contractor grants to (or must
acquire for where the Intellectual Property Rights in the Existing Material
are owned by a third party) the Agency an irrevocable, perpetual, nonexclusive, world-wide, paid-up licence to hold, use, execute, reproduce,
display, perform and sublicense that Existing Material as part of the relevant
New Material, and to alter, enhance, and produce derivative works from that
Existing Material as a whole for use by the Agency provided that the
Agency must not exploit the Existing Material for commercial purposes.
17.4
On the expiration or termination of this Contract, the Contractor must deliver to the
Agency copies of all New Material and any data relevant to that New Material or the
Agency held by the Contractor or under its control, in a format that the Agency can
use.
17.5
The Contractor must ensure that, to the extent it has control of the Agency's
Confidential Information, it is used, copied, supplied or reproduced only for the
purposes of this Contract in accordance with clause 18.1.
Intellectual Property warranty
17.6
Unless specified otherwise in a Contract Order Form in a manner that provides
protection to the Agency, the Contractor warrants that:
17.6.1
the Deliverables, and use of those Deliverables, will not infringe the
Intellectual Property Rights or Moral Rights of any person; and
17.6.2
it has the necessary rights to grant the licences required by this clause 17.
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Remedy for breach of Intellectual Property warranty
17.7
If someone claims, or the Agency reasonably believes that someone is likely to claim,
that all or part of the Deliverables infringe their Intellectual Property Rights or that use
of the Deliverables infringes their Moral Rights, the Contractor must, in addition to the
indemnity under clause 24.1.5 and to any other rights that the Agency may have
against it, promptly, at the Contractor's expense:
17.7.1
secure the rights for the Agency to continue to use the affected Deliverables
free of any claim or liability for infringement; or
17.7.2
replace or modify the affected Deliverables so that the Deliverables or the
use of them does not infringe the Intellectual Property Rights or Moral
Rights of any person in a way that does not degrade the performance or
quality of the affected Deliverables.
Moral Rights
17.8
To the extent permitted by applicable Laws, the Contractor must ensure that each of
the Personnel used by the Contractor in the production or creation of the New
Material gives a genuine consent in writing, in a form acceptable to the Agency, to the
use of the New Material for the Specified Acts, even if such use would otherwise be
an infringement of their Moral Rights.
Specified Acts
17.9
18
In this clause 17, Specified Acts means:
17.9.1
not attributing the authorship, or falsely attributing the authorship, of any
New Material, or any content in the New Material (including without
limitation literary, dramatic, artistic works and cinematograph films within
the meaning of the Copyright Act 1968 (Cth));
17.9.2
materially altering the style, format, colours, content or layout of the New
Material and dealing in any way with the altered New Material;
17.9.3
reproducing, communicating, adapting, publishing or exhibiting any New
Material; and
17.9.4
adding any additional content or information to the New Material.
Confidentiality
Disclosure of Confidential Information
18.1
Subject to clause 18.6, a party must not, without prior consent from the other party,
disclose any Confidential Information of the other party to a third party.
18.2
In giving consent to the disclosure of Confidential Information, a party may impose
such conditions as it thinks fit, and the other party must comply with those conditions
if it proceeds to make the disclosure.
Written undertakings
18.3
Each party must take all reasonable steps to ensure that, subject to clause 18.6, its
Personnel engaged to perform work under this Contract do not disclose Confidential
Information of the other party obtained during the course of performing such work.
18.4
Unless specified otherwise in a Contract Order Form, a party may at any time request
the other party to arrange for any of its Personnel to whom information may be
disclosed pursuant to clauses 18.6.1, 18.6.2 or 18.6.3 (other than a person
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employed under the Public Service Act 1999 (Cth) or, where the Agency is a State
Agency, the equivalent legislation)) to give a written undertaking in the form set out at
Schedule 1 - Attachment 2 (Deed of Confidentiality) to the Head Agreement.
18.5
If a party receives a request under clause 18.4, it must promptly arrange for all such
undertakings to be given and must provide copies to the other party.
Exceptions to obligations
18.6
The obligations of the parties under this clause 18 will not be taken to have been
breached to the extent that Confidential Information:
18.6.1
is disclosed by a party to its Personnel solely in order to comply with
obligations, or to exercise rights, under this Contract;
18.6.2
is disclosed to a party's internal management Personnel, solely to enable
effective management or auditing of Contract-related activities;
18.6.3
is shared by the Agency within the Agency or with another Agency including
Finance, if this serves the Commonwealth's or the Agency's legitimate
interests;
18.6.4
is disclosed by the Agency to the responsible minister and his or her
advisers;
18.6.5
is disclosed by the Agency in response to a request from a House or a
Committee of the Parliament of the Commonwealth, or from a State or
Territory Parliament or Assembly if the Agency is a State or Territory
Agency;
18.6.6
disclosure is authorised or required by Law, including under this Contract,
under a licence or otherwise, to be disclosed; or
18.6.7
is in the public domain otherwise than due to a breach of this clause 18.
Obligations on disclosure
18.7
A party that discloses Confidential Information to another person must:
18.7.1
18.7.2
if the disclosure is pursuant to clause 18.6.1 or:
(a)
inform the receiving person that the information is Confidential
Information; and
(b)
not provide the information unless the receiving person agrees to
keep the information confidential and agrees, if requested, to
provide a written confidentiality undertaking; or
if the disclosure is pursuant to clauses 18.6.3, 18.6.4, 18.6.5 or 18.6.6,
inform the receiving party that the information is Confidential Information.
No reduction in privacy obligations
18.8
Nothing in clauses 18.1 to 18.7 limits any obligation which either party may have
under Statute including under the Privacy Act, Part 13 of the Telecommunications Act
1997 (Cth), under any applicable State or Territory privacy legislation, or under a
contract, in relation to the protection of personal information.
Announcements
18.9
Subject to clause 18.10, the Contractor must not make a Public Announcement in
relation to this Contract unless it has the Agency's written agreement.
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18.10
The Contractor is not required to obtain the Agency's written consent to make a
Public Announcement if the Public Announcement is required by Law or a regulatory
body (including a relevant stock exchange).
18.11
If the Contractor is required by Law or a regulatory body to make a Public
Announcement, the Contractor must:
19
18.11.1
limit the Public Announcement to the extent required by the relevant Law or
regulatory body; and
18.11.2
to the extent practicable, first consult with and take into account the
reasonable requirements of the Agency and Finance(as applicable).
Privacy
Personal Information
19.1
This clause 19 applies only where the Contractor deals with Personal Information
when, and for the purpose of, providing the Deliverables under this Contract. Nothing
in clause 19 derogates from clauses 18 or 20.
19.2
The Contractor must:
19.2.1
use or disclose Personal Information obtained during the course of
performing the Services under Contract, only for the purposes of this
Contract;
19.2.2
not do any act, or engage in any practice that would breach an Australian
Privacy Principle, or which if done or engaged in by an Agency, would be a
breach of that Australian Privacy Principle by an Agency;
19.2.3
not use or disclose Personal Information, or engage in an act or practice
that would breach an Australian Privacy Principle or an APP Code, unless:
(a)
in the case of an Australian Privacy Principle or an APP Code, if
the activity or practice is engaged in for the purpose of
discharging, directly or indirectly, an obligation under this
Contract, and the activity or practice is inconsistent with the
Australian Privacy Principle or APP Code;
(b)
notify individuals whose Personal Information is held by the
Contractor or Subcontractor, as the case may be, of the
complaints mechanism outlined in the Privacy Act that may apply
to the Contractor;
(c)
disclose in writing to any person who asks, the content of the
provisions of this Contract (if any) that are inconsistent with an
Australian Privacy Principle or an APP Code binding a Party to
this Contract;
(d)
carry out and discharge the obligations contained in the
Australian Privacy Principles as if it were an Agency under the
Privacy Act; and
(e)
ensure that any Contractor Personnel who are required to deal
with Personal Information for the purposes of this Contract, are
made aware of the obligations of the Contractor as set out in this
clause 19.
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19.3
The Contractor must promptly notify the Agency Representative if the Contractor:
19.3.1
becomes aware of a breach or possible breach of any of the obligations
contained in, or referred to in this clause 19, whether by the Contractor or a
Subcontractor;
19.3.2
becomes aware that a disclosure of Personal Information may be required
by Law; or
19.3.3
receives a request or an inquiry from the Privacy Commissioner, or from
any individual to whom any Personal Information held by the Contractor or
Subcontractors relates, in respect of Personal Information.
19.4
The Contractor must ensure that all Subcontracts entered into for the purposes of
fulfilling its obligations under this Contract contain provisions to ensure that each
Subcontractor has the same awareness and obligations as the Contractor has under
this clause 19, including the requirement in relation to Subcontracts.
19.5
In this clause 19, the term "Agency" "has the same meaning as it has in section 6 of
the Privacy Act.
20
Security
20.1
The Contractor must:
20.2
20.1.1
comply with any security requirements specified in the Contract Order Form
(including those contained in the PSPF and the ISM) and as otherwise
notified by the Agency to the Contractor from time to time; and
20.1.2
ensure that its officers, employees, agents and Subcontractors are aware of
and comply with the Agency's security requirements in respect of the
Deliverables, including having and maintaining appropriate Personnel
security clearances.
The Contractor must:
20.2.1
comply with the requirements of the PSPF and the ISM, as amended from
time to time;
20.2.2
ensure that its officers, employees, agents and Subcontractors undertake
any security checks, clearances or accreditations as required by the
Agency; and
20.2.3
notify the Agency of any changes to circumstances which may affect the
Contractor’s capacity to provide the Deliverables in accordance with the
Agency's security requirements.
21
Unconditional Financial Undertaking
21.1
If an Agency determines that it requires an Unconditional Financial Undertaking that
is specific to this Contract, in addition to any Unconditional Financial Undertaking the
Contractor has provided under the Head Agreement, the Agency must have approval
in writing from the Finance Representative prior to specifying its requirements in a
Contract Order Form.
21.2
If specified in the Contract Order Form, the Contractor must, on or before the
Contract Start Date (or other date as agreed by the parties in a Contract Order Form),
provide the Agency Representative with an executed Unconditional Financial
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Undertaking substantially in the form of Schedule 1 - Attachment 4 (Unconditional
Financial Undertaking) to the Head Agreement.
21.3
If the Contractor does not comply with any of its obligations under this Contract, the
Agency may call on the Unconditional Financial Undertaking without notice to the
Contractor.
21.4
If the Agency calls on the Unconditional Financial Undertaking in accordance with
clause 21.3, then no later than five (5) Business Days after the Agency gives the
Contractor a Notice asking for it, the Contractor agrees to deliver to the Agency, a
replacement or additional Unconditional Financial Undertaking.
21.5
If the Agency does not call on the Unconditional Financial Undertaking, the Agency
will return the Unconditional Financial Undertaking, within six months after expiry or
termination of this Contract.
22
Performance Guarantee
Note: The Agency will determine the need for a Performance Guarantee based on its
risk assessment. Note that Finance is likely to require all Performance Guarantees
and Unconditional Financial Undertakings to be managed by Finance.
22.1
If an Agency determines that it requires a Performance Guarantee that is specific to
this Contract, in addition to any Performance Guarantee the Contractor has provided
under the Head Agreement, the Agency must have approval in writing from the
Finance Representative prior to specifying its requirements in a Contract Order Form.
22.2
If specified in the Contract Order Form, the Contractor must, on or before the
Contract Start Date or other date agreed by the parties in a Contract Order Form,
provide the Agency Representative with an executed Performance Guarantee
substantially in the form of Schedule 1 - Attachment 4 (Performance Guarantee
and Indemnity) of the Head Agreement unless otherwise requested by an Agency.
23
Liability
23.1
The liability of a party for breach of this Contract, or in tort, or for any other common
law or Statutory cause of action arising out of the operation of this Contract will be
determined under the relevant Law in Australia that is recognised, and would be
applied, by the High Court of Australia.
Liability Cap
23.2
Subject to clause 23.3, the Contractor's liability under clause 24.1 or for breach of
this Contract in equity, tort including negligence or Statute for any Loss is capped as
specified in the Contract Order Form (Liability Cap).
23.3
Unless specified otherwise in a Contract Order Form, the Liability Cap does not apply
to any Loss arising out of:
23.3.1
personal injury (including sickness or death of a person);
23.3.2
loss of, or damage to, tangible property;
23.3.3
any breach of Intellectual Property Rights, confidentiality, privacy, or breach
of any personnel or data security obligations in this Contract or at Law;
23.3.4
any breach of any Statute, fraud or any unlawful act or omission; or
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23.3.5
liability for Taxes (and any related penalties or interest) in respect of this
Contract payable by the Contractor or payable by the Agency but
recoverable from the Contractor.
Note: The liability cap will depend on the Agency risk assessment.
23.4
The liability of a party for Loss sustained by the other party will be reduced
proportionately to the extent that such Loss has been caused by:
23.4.1
the other party's failure to comply with its obligations and responsibilities
under this Contract; or
23.4.2
the negligent act or omission of the other party,
regardless of whether a claim is made by the other party for breach of Contract or for
negligence.
23.5
24
To the extent permitted by Law, notwithstanding any other clause in the Contract,
other than clause 23.4, neither Party is liable to the other Party for breach of the
Contract, or in tort (including negligence), or for any other common law, equitable or
Statutory cause of action arising out of, or in connection with, the operation of the
Contract (including under an indemnity) for:
23.5.1
punitive or exemplary damages of any kind;
23.5.2
loss of goodwill, loss of savings, business profits, revenue or opportunity
arising out of, or in connection with, the Contract; or
23.5.3
consequential or indirect Losses, meaning (to the extent not otherwise
specifically excluded in this clause 23.5) Losses such as may reasonably
be supposed to have been in the contemplation of both Parties, at the time
they entered into the Contract, as the probable result of breach of the
Contract, but not including Losses such as may fairly and reasonably be
considered as arising naturally (that is according to the usual course of
things) from the relevant breach of the Contract. For the avoidance of doubt
clause 23.5.3 excludes consequential or indirect Losses within the meaning
of the second limb of Hadley v Baxendale (1854) 9 Ex 341.
Indemnity
Contractor's indemnity
24.1
Subject to clause 23, and unless specified otherwise in a Contract Order Form, the
Contractor indemnifies the Agency and Agency Personnel (Indemnified Persons) in
respect of any direct Loss suffered or incurred by an Indemnified Person which is
caused by or arises from:
24.1.1
any breach of this Contract by the Contractor or Contractor Personnel,
including a breach in respect of which the Agency exercises an express
right to terminate this Contract;
24.1.2
without limiting clause 24.1.1, any breach of any of the obligations of the
Contractor or a Subcontractor under or in respect of clauses 18, 19 or 20;
24.1.3
any breach of any Statute by the Contractor or Subcontractor in the
performance of this Contract;
24.1.4
any negligent or unlawful act or omission of the Contractor or Contractor
Personnel in the performance of this Contract; or
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24.1.5
24.2
a claim made by a third party arising out of or in connection with an
allegation that any Deliverables (including the use of any Deliverables by
the Indemnified Persons) infringes the Intellectual Property Rights or Moral
Rights of the third party,
The indemnity for Loss suffered or incurred by an Indemnified Person will be reduced
proportionately to the extent that such Loss has been caused by:
24.2.1
the Indemnified Person's failure to comply with its obligations and
responsibilities under this Contract; or
24.2.2
the negligent or unlawful act or omission of the Indemnified Person,
regardless of whether a claim is made by the Indemnified Person for breach of
Contract or for negligence.
24.3
For the purposes of clause 24.1.5, an infringement of Intellectual Property Rights
includes unauthorised acts which would, but for the operation of section 163 of the
Patents Act 1990 (Cth), section 100 of the Designs Act 2003 (Cth), section 183 of the
Copyright Act 1968 (Cth) and section 25 of the Circuit Layouts Act 1989 (Cth),
constitute an infringement.
Rights not exclusive
24.4
The rights of the Indemnified Persons pursuant to the indemnity in this clause 24 are
in addition to, and not exclusive of, any other right, power, or remedy provided by
Law, but the Indemnified Persons are not entitled to be compensated in excess of the
amount of the relevant Loss they have incurred.
Indemnified Person's obligations
24.5
If an Indemnified Person wishes to enforce an indemnity under clause 24.1, it must:
24.5.1
give written Notice to the Contractor promptly;
24.5.2
subject to the Contractor agreeing to comply at all times with clause 24.6 if
the Indemnified Person is subject to the Legal Services Directions, permit
the Contractor, at the Contractor's expense, to handle all negotiations for
settlement and, as permitted by Law, to control and direct any settlement
negotiation or litigation that may follow; and
24.5.3
in the event that the Contractor is permitted to handle negotiations or
conduct litigation on behalf of an Indemnified Person, under clause 24.5.2
and at the Contractor's cost, provide all reasonable assistance to the
Contractor in the handling of any negotiations and litigation.
Contractor's obligations
24.6
If the Contractor is permitted to handle negotiations or conduct litigation on behalf of
an Indemnified Person that is subject to the Legal Services Directions, the Contractor
must:
24.6.1
comply with applicable government policy and obligations relevant to the
conduct of the litigation and any settlement negotiation (including the Legal
Services Directions) and any direction issued by the Attorney-General to
the Commonwealth or delegate;
24.6.2
keep the Indemnified Person and the Agency (and Finance, at the Agency's
request) informed of any significant developments relating to the conduct of
the defence or settlement of any claim;
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24.6.3
provide to the Indemnified Person and the Agency (and Finance, at the
Agency's request) all information and Documents reasonably requested by
the Indemnified Person or the Agency, to enable the Indemnified Person or
the Agency to ascertain whether the defence or settlement by the
Contractor of any claim is being conducted in accordance with applicable
government policy and obligations including the Legal Services Directions
(including any requirements relating to legal professional privilege and
confidentiality); and
24.6.4
comply with any conditions imposed by the Indemnified Person or the
Agency (including any condition requiring the provision of an Unconditional
Financial Undertaking or other financial undertaking).
Disputes regarding Intellectual Property Rights
24.7
The Contractor is not required to comply with the Legal Services Directions if it is in
Dispute with a person other than an Indemnified Person concerning the Intellectual
Property Rights subsisting in the Deliverables provided that:
24.7.1
the claim affects Agencies of the Contractor other than the Agency; and
24.7.2
there is no current Dispute with an Indemnified Person in respect of the
same subject matter (but if there is a Dispute with another Agency and the
Agency is obliged to comply with the Legal Services Directions, the
Contractor must also comply).
Rights held on trust
24.8
Where an indemnity in this clause 24.8 provides a benefit to a person who is not a
party to this Contract, that benefit will be held on trust for that person by the Agency
or the Agency through whom those rights are obtained and that benefit may be
exercised by the person as beneficiary under the trust or on their behalf by the
Agency as trustee.
Mitigation
24.9
Each party will use all reasonable endeavours to mitigate its Loss, arising under
and/or in connection with a breach of this Contract.
25
Termination
Termination by the Agency for default
25.1
Without limiting any other rights or remedies the Agency may have against the
Contractor arising out of or in connection with this Contract, the Agency may
terminate this Contract, effective immediately, by giving Notice to the Contractor
(Termination Notice) if:
25.1.1
the Contractor breaches a material provision of this Contract, where that
breach is not capable of remedy;
25.1.2
the Contractor breaches any provision of this Contract that is capable of
remedy, and fails to remedy the breach within 20 Business Days or such
other timeframe as is agreed in writing after receiving Notice requiring it to
remedy the breach; or
25.1.3
an event listed in clause 25.3 happens to the Contractor and the Agency
reasonably considers that such an event will adversely impact on the
Contractor's ability to provide the Deliverables.
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A Notice given under this clause 25.1 must be approved in writing by Finance.
25.2
25.3
Without limitation and in addition to those which may be specified in a Contract Order
Form, for the purposes of clause 25.1.1, each of the following constitutes a breach of
a material provision:
25.2.1
a failure to comply with clauses 3.5 and 3.6 (Approved Third Party
Providers);
25.2.2
breach of a warranty in clause 9 except clauses 9.2.2 and 9.2.3 (Contract
Warranties);
25.2.3
a failure to comply with clause 17 (Intellectual Property Rights);
25.2.4
a failure to comply with clause 18.1 (Confidentiality);
25.2.5
a failure to comply with clause 19 (Privacy);
25.2.6
a failure to comply with clause 20 (Security); and
25.2.7
a failure to notify the Agency of a Conflict of Interest under clause 30
(Conflict of interest) or an inability to resolve a Conflict of Interest to the
reasonable satisfaction of the Agency.
The Contractor must notify the Agency in writing immediately if one or more of the
following occurs:
25.3.1
the Contractor disposes of the whole or any substantial part of its assets,
operations or business other than in the ordinary course of business;
25.3.2
the Contractor ceases to carry on business;
25.3.3
the Contractor ceases to be able to pay its debts as they become due;
25.3.4
if the Contractor is a corporation, there is any change in the direct or
indirect beneficial ownership or control of the Contractor which may have an
adverse effect on the ability of the Contractor to perform its obligations
under this Contract;
25.3.5
is the subject of Insolvency Proceedings;
25.3.6
becomes an Insolvent Under Management; or
25.3.7
if the Contractor is a trustee, the trust is terminated or an even occurs for
vesting the trust property.
Termination and reduction for convenience
25.4
The Agency may, by Notice, at its absolute discretion, terminate or reduce the scope
of this Contract including as a result of a machinery of government change. A Notice
given under this clause 25.4 must be approved in writing by Finance.
25.5
If this Contract is terminated or reduced in scope pursuant to clause 25.4:
25.5.1
the Contractor must comply with reasonable directions given by the Agency;
and
25.5.2
the Contractor must do everything reasonably possible to mitigate its Loss
including by redeploying infrastructure, equipment and Personnel; and
25.5.3
the Agency will only be liable for:
(a)
payments under the payment terms specified in the Contract
Order Form for work conducted before the effective date of
termination or reduction; and
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(b)
25.5.4
any other unavoidable costs suffered by the Contractor in direct
consequence of a termination or reduction under clause 25.4.
unavoidable costs include amortised start-up costs and
reasonable wind-down expenses directly related to this Contract if
the Contractor substantiates all amounts claimed to the
reasonable satisfaction of the Agency Representative; and
except for payments in respect of work conducted to which
clause 25.5.3(a) applies, the Contractor will not be not entitled to
compensation for Loss including of prospective profits or any other indirect
or Consequential Losses.
Termination by Contractor
25.6
25.7
The Contractor may only terminate this Contract by issuing a Notice to Terminate in
writing where the Agency has:
25.6.1
not paid a properly rendered invoice within the period specified in the
Contract Order Form or 120 Business Days after payment was due and
payable and the Contractor has notified the Agency in writing of its claim for
payment at least 40 Business Days and then 60 Business Days after
payment was due; or
25.6.2
breached a material obligation provision (as specified in clause 25.2 or in
the Contract Order Form) in this Contract and has failed to remedy the
breach within 40 Business Days or such other period agreed by the parties
after receiving a Notice requiring it to remedy the breach.
The Contractor has no right and, to the extent permitted by Law, waives any right
which it may otherwise have had to terminate this Contract.
Consequences of termination
25.8
If this Contract is terminated in whole or in part under this clause 25:
25.8.1
subject to the terms of this Contract, the parties are relieved from future
performance of this Contract or relevant part of it;
25.8.2
subject to this Contract including the Transition Out Plan, all licences and
authorisations relating to or concerning this Contract granted to the
Contractor by the Agency terminate immediately despite anything to the
contrary contained in the licence or authorisation;
25.8.3
each party must comply with all surviving terms of this Contract and the
Transition Out Plan; and
25.8.4
the accrued rights of either party are not affected.
26
Transition Out
26.1
The Contractor must perform Transition Out Services in accordance with this
clause 26, the Contract and the Transition Out Plan approved by the Agency to
ensure the orderly transition out of the Deliverables. Transition Out Charges will be
agreed as part of the agreement of the Transition Out Plan but will be based on the
Charges in Schedule 3 - Attachment 2 (Deliverables and Charges).
26.2
The Contractor agrees that:
26.2.1
upon the expiration or earlier termination of this Contract or a reduction in
the scope of the Deliverables, the Contractor may be replaced by the
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Agency or another contractor appointed by the Agency to provide
Deliverables the same as or similar to the Deliverables;
26.2.2
it is essential for the continuing operation of the Agency and its functions
that there be no interruption to the provision of the Deliverables to the
Agency as a result of the transition from the Contractor to the Agency or an
incoming contractor; and
26.2.3
the Contractor will be required to provide relevant Deliverables in
accordance with this Contract until the expiration or earlier termination of
this Contract (unless the Agency directs or agrees otherwise).
26.3
If requested in the Contract Order Form, the Contractor must develop and submit to
the Agency for approval, a Transition Out Plan in accordance with the Contract Order
Form.
26.4
The Contractor must:
26.4.1
perform all activities described in the approved Transition Out Plan;
26.4.2
fully co-operate with the Agency and any incoming contractor and do all
tasks and things as may be reasonably necessary to ensure the smooth
transition of the provision of the Deliverables from the Contractor to the
incoming contractor or the Agency (as the case may be) in a manner which
ensures no interruption to the provision of the Deliverables;
26.4.3
work in good faith to resolve any issues arising with the transition from the
Contractor to the incoming contractor or the Agency (as the case may be);
26.4.4
comply with all reasonable directions from the Agency Representative,
having regard to the requirements of the Agency or the incoming contractor;
26.4.5
take all available steps to protect Material in which Intellectual Property
Rights, Confidential Information or personal information of the Agency or its
Personnel subsists;
26.4.6
return to the Agency (or such other person as directed by the Agency
Representative) all Agency Material, Commonwealth data and other
property or information provided by the Agency to the Contractor under or in
connection with this Contract in the condition required by this Contract and
to the satisfaction of the Agency Representative;
26.4.7
engage in briefings as required by the Agency Representative and the
incoming contractor with a view to ensuring that the Agency or incoming
contractor have sufficient information to provide the Deliverables or
products or services of a similar nature to the Deliverables;
26.4.8
use reasonable endeavours to novate to the Agency, or to any person
nominated by the Agency, any Subcontract as required by the Agency
Representative on the terms of a novation deed that are reasonably
satisfactory to the Agency Representative; and
26.4.9
if any Subcontract is not specific to this Contract, use reasonable
endeavours to procure the Subcontractor to enter into a contract with the
Agency, or any person nominated by the Agency, as required by the
Agency Representative on terms reasonably satisfactory to the Agency
Representative.
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27
Variation
Variation to a Contract
27.1
Variations to this Contract must be agreed by the parties and, in accordance with
clause 4.12 of the Head Agreement approved by Finance before they become
effective. Any variations to this Contract which do not accord with clause 4.12 of the
Head Agreement will be null and void and the Contractor will be deemed to have
waived all rights (if any) to claim any Losses from Finance or the Agency concerned
in relation to the amendment.
27.2
The following variation process applies to this Contract.
27.3
The Contractor must not vary this Contract without the Agency's prior written
approval. If the Contractor wants to vary or seek to vary this Contract:
27.3.1
27.4
the Contractor must request the Agency's approval by providing to the
Agency a draft Change Order (using the Change Order Form) setting out
the proposed variations and specifying what impact those variations will
have on:
(a)
the Charges;
(b)
the Deliverables;
(c)
the Contractor's ability to perform its obligations under this
Contract; and
(d)
this Contract;
27.3.2
subject to clause 27.4.1 and clause 4.12 of the Head Agreement, within
10 Business Days or such other time period specified in a Contract Order
Form after receiving the request or within another period agreed by the
parties, the Agency will approve or reject the Contractor's request; and
27.3.3
if the Agency approves the request, the Contractor may seek to vary this
Contract in accordance with the change control process set out in this
Contract.
If the Agency wants to vary this Contract:
27.4.1
the Agency will issue the Contractor with a draft Change Order (using the
Change Order Form) setting out the proposed variations;
27.4.2
the Contractor will respond to the draft Change Order within 10 Business
Days specifying what impact those variations will have on:
(a)
the Charges;
(b)
the Deliverables;
(c)
the Contractor's ability to perform its obligations under this
Contract; and
(d)
this Contract;
27.4.3
subject to clause 27.5, within 10 Business Days after receiving the
Contractor's response under clause 27.3.2, the Agency will notify the
Contractor in writing if it intends to proceed with the variation; and
27.4.4
if the Agency elects to proceed with the variation under clause 27.3, the
Agency may vary this Contract in accordance with the change control
process set out in this Contract.
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27.5
To avoid doubt, the Contractor acknowledges that changes that seek to modify the
Contract Terms must be approved by Finance in accordance with clause 4.12 of the
Head Agreement.
27.6
All executed Changes Orders must be provided to the Finance Representative.
27.7
If the Contractor seeks to vary pricing for CPI changes, a variation for CPI changes
will need to be submitted to Finance. The Contractor will need to substantiate any
proposed increases to Finance. Finance will not unreasonably withhold their
approval.
28
Notices and other Communications
Service of Notices
28.1
28.2
A Notice must be in written English and signed by:
28.1.1
in the case of a Notice from the Contractor, the Contractor Representative;
and
28.1.2
in the case of a Notice from the Agency, the Agency Representative.
A Notice relating to:
28.2.1
notification of change of its address for the issue of Notices specified in the
Contract Order Form;
28.2.2
extension of the Contract Period under clause 2.2;
28.2.3
circumstances beyond control under clause 13;
28.2.4
step in under clause 14;
28.2.5
the conduct of an audit under clause Error! Reference source not found.;
28.2.6
additional or replacement Unconditional Financial Undertaking or
Performance Guarantee under clauses 21 or 22;
28.2.7
enforcement of an indemnity under clause 24.5;
28.2.8
termination of this Contract under clause 25;
28.2.9
a dispute under clause 29;
28.2.10
a Conflict of Interest under clause 30;
28.2.11
assignment, novation or waiver under clauses 31.4 and 29.5,
is properly given or served by a party if that party:
28.2.12
delivers it by hand; or
28.2.13
posts it by registered post,
to the recipient's address for Notices specified in the Contract Order Form and
marked for the attention of the person who at that time is the Representative, in
accordance with this Contract, of the party intended to receive it. A PDF copy of the
communications referenced in this clause 28.2 may be sent by email as an informal
notification of the Notice (in addition to the formal communication sent in accordance
with this clause 28.2).
28.3
A party issuing a Notice under this Contract must provide a copy of the Notice to the
Finance Representative.
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Deemed receipt
28.4
A Notice or other communication is deemed to be received:
28.4.1
if delivered by hand, when the party which sent the Notice or other
communication holds a receipt for it, signed by a person employed by the
intended recipient at the physical address for Notices; or
28.4.2
if delivered by registered post, when the party who sent the Notice or other
communication holds a receipt for it, signed by a person employed at the
physical address for the Notices (referred to by Australia Post as ‘Domestic
Delivery Confirmation’).
Formal and informal communications
28.5
The parties wish to distinguish formal communications and informal communications.
28.6
A formal communication is one which complies with the requirements of clauses 28.1
to 28.4. An informal communication is one which does not comply with the
requirements of clauses 28.1 to 28.4. Examples of informal communications include:
28.7
28.6.1
oral communications, whether made during meetings, discussions, over the
phone or otherwise; and
28.6.2
communications sent by email.
Formal communications will have effect as communications under or in connection
with this Contract. Informal communications will not:
28.7.1
be treated as formal communications under or in connection with this
Contract; or
28.7.2
affect the parties' rights or obligations under or in connection with this
Contract,
and do not vary this Contract and cannot be relied upon.
29
Dispute resolution
No arbitration or court proceedings
29.1
If a dispute arises in relation to the interpretation, conduct, enforcement or any other
aspect of this Contract (Dispute), a party must comply with this clause 29 before
starting arbitration or court proceedings (except proceedings for urgent interlocutory
relief). After a party has sought or obtained any urgent interlocutory relief that party
must follow this clause 29.
Dispute Notice
29.2
A party claiming a Dispute has arisen must give the other parties to the Dispute (with
a copy to Finance) a Notice setting out details of the Dispute.
Parties to resolve Dispute
29.3
During the 10 Business Days after a Notice is given under clause 29.2 (or longer
period if the parties to the Dispute agree in writing), each party to the Dispute must
use its reasonable efforts through a meeting of CEOs or equivalent (or their
nominees) to resolve the Dispute. If the parties cannot resolve the Dispute within that
period, they must refer the Dispute to the Agency Representative for further
discussions.
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29.4
If the matter remains in Dispute 10 Business Days after referral to the Agency
Representative under clause 29.3, the parties must refer the Dispute to a mediator at
the request of one of the parties to the Dispute.
Appointment of mediator
29.5
If the parties to the Dispute cannot agree on a mediator within 5 Business Days after
a request under clause 29.2, the parties must request the chairperson of LEADR or
the chairperson's nominee to appoint a mediator.
Role of mediator and obligations of parties
29.6
The role of the mediator will be to assist in negotiating a resolution of the Dispute.
The mediator may not make a decision which is binding on a party to the Dispute
unless the party agrees in writing. Unless agreed by the mediator and parties, the
mediation must be held within 15 Business Days after the request for mediation in
clause 29.2. The parties must attend the mediation and act in good faith to genuinely
attempt to resolve the Dispute.
Confidentiality
29.7
Any information or Documents disclosed by a party under this clause 29:
29.7.1
must be kept confidential and are subject to clause 18.1; and
29.7.2
may only be used to attempt to resolve the Dispute.
Costs
29.8
Each party to a Dispute must pay its own costs of complying with this clause 29. The
parties to the Dispute must equally pay the costs of any mediator.
Termination of process
29.9
A party to a Dispute may terminate the Dispute resolution process by giving Notice to
each other party with a copy to Finance after it has complied with clauses 29.1 to
29.6. Clauses 31.7 and 29.8 survive termination of the Dispute resolution process.
Breach of this clause
29.10
If a party to a Dispute breaches clause 29, the other party does not have to comply
with those clauses in relation to the Dispute.
30
Conflict of Interest
Notification of a Conflict of Interest
30.1
If, during the performance of this Contract a Conflict of Interest arises, or appears
likely to arise, the Contractor must:
30.1.1
notify the Agency and Finance immediately in writing;
30.1.2
make full disclosure of all relevant information relating to the Conflict of
Interest; and
30.1.3
take all steps that the Agency reasonably requires the Contractor to take in
order to resolve or otherwise deal with the Conflict of Interest.
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31
General
Approvals and consents
31.1
Except where this Contract states otherwise, a party may, in its discretion, give
conditionally or unconditionally or withhold any approval or consent under this
Contract.
Costs
31.2
Each party must pay its own costs of negotiating, preparing and executing this
Contract.
Further action
31.3
Each party must do, at its own expense, everything reasonably necessary (including
executing Documents) to give full effect to this Contract and any transaction
contemplated by those Documents.
Assignment and novation
31.4
A party may only assign its rights or novate its rights and obligations under this
Contract (in whole or part) with the prior written consent of the other party and
Finance, and this consent must not be unreasonably withheld, except that the Agency
may assign its rights or novate its rights and obligations under this Contract to
another Agency without obtaining the Contractor's consent if all, or substantially all, of
its functions are transferred to another Agency as part of a machinery of government
change.
Note: Finance must approve in writing of any potential assignment or novation.
Waiver
31.5
31.6
Waiver of any provision of, or right under, this Contract:
31.5.1
must be by Notice from the party entitled to the benefit of that provision or
right; and
31.5.2
is effective only to the extent set out in such Notice.
The fact that a party fails to do, or delays in doing, something the party is entitled to
do under this Contract, does not amount to a waiver of any obligation of, or breach of
obligation by, the other party.
Severability
31.7
A term or part of a term of this Contract that is illegal or unenforceable may be
severed from this Contract and the remaining terms or parts of the terms of that
Document will continue in force.
Entire agreement
31.8
The Head Agreement (including all Schedules and Documents incorporated by
reference) and this Contract constitute the entire agreement between the parties in
connection with its subject matter and supersedes all previous agreements or
understandings between the parties in connection with its subject matter.
Rights are cumulative
31.9
The rights, powers and remedies provided in this Contract are cumulative and are not
exclusive of the rights, powers or remedies provided by Law independently of this
Contract.
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Survival
31.10
The following clauses survive the termination and expiry of this Contract:
31.10.1
clause 8 (Charges, Payment and Invoicing);
31.10.2
clause 9 (Contract Warranties);
31.10.3
clause 15 (Books and Records);
31.10.4
clause 16 (Audit and Access);
31.10.5
clause 17 (Intellectual Property Rights);
31.10.6
clause 18 (Confidentiality);
31.10.7
clause 19 (Privacy);
31.10.8
clause 21 (Unconditional Financial Undertaking);
31.10.9
clause 22 (Performance Guarantee);
31.10.10 clause 23 (Liability);
31.10.11 clause 24 (Indemnity);
31.10.12 clause 25 (Termination) in respect of the rights and obligations arising on
termination;
31.10.13 clause 26 (Transition Out);
31.10.14 any clauses that are expressed to or which by their nature survive
termination or expiry; and
31.10.15 all clauses required to give effect to this clause 31.10 including definitions
and interpretation.
Governing Law and jurisdiction
31.11
This Contract is governed by the Laws of the Australian Capital Territory.
31.12
Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of
the courts of the Australian Capital Territory.
32
Agency obligations
32.1
The Agency must pay for Deliverables that are delivered in accordance with this
Contract.
32.2
The Agency must use reasonable endeavours to ensure that Agency Personnel do
not interfere with the operations, equipment, Material or Personnel of the Contractor's
other customers.
32.3
The Agency must comply with all relevant Statutes in its use of the Deliverables,
unless the Contractor, Contractor Personnel, Subcontractors or third parties outside
the control of the Agency have caused the non-compliance.
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Part B - Module Specific Terms
33
Scope of Deliverables
33.1
The Contractor must only provide the ICT Hardware and Associated Services
Deliverables (Deliverables) that the Contractor is entitled to offer specified in this
Module 2 – Part D - Deliverables, in accordance with the functional, performance and
other requirements and any Contract.
33.2
The Contractor must supply the Deliverables in accordance with the Statement of
Requirement established by Finance under the RFT FIN14BPAM2335, and
subsequent Statement of Requirement published by Finance f rom ti me to t i m e .
33.3
Under the ICT Hardware and Associated Services Panel it is:
33.3.1
mandatory for Non-corporate Commonwealth entities subject to the Public
Governance, Performance and Accountability Act 2013 (PGPA Act) entities
to purchase ICT Hardware Products in the Desktop PC, Mobile PC, Virtual
Desktop Devices and Monitors Categories from the ICT Hardware and
Associated Services Panel;
33.3.2
optional for Non-corporate Commonwealth entities to purchase ICT
Hardware Products and/or Services in the Centralised Services, Installation
Services, Servers and Server Racks Categories from the ICT Hardware and
Associated Services Panel; and
33.3.3
optional for Corporate Commonwealth entities subject to the PGPA Act and
State and Territory Governments and bodies to use the ICT Hardware and
Associated Services Panel for all Categories.
33.4
Finance may, at its discretion, change, add or remove Categories and Deliverables at
any time.
34
Role of Finance
34.1
As at clause 3 of the Head Agreement, Finance will also:
34.1.1
administer the Product and Service Catalogue in accordance with clause
35; and
34.1.2
oversee the proper performance of the Contracts to ensure that the
Commonwealth obtains the collective benefits to which it is entitled under
this Module including management of obsolescence and technology change.
Provision of dedicated Personnel
34.2
The Contractor must provide the following Personnel for all queries relating to the ICT
Hardware and Associated Services Panel, provision of the Deliverables and support
the implementation of this Module.
34.2.1
Account Executive
(a)
The role of the Account Executive is to:
(i)
perform the functions of an Account Manager if
required;
(ii)
be the initial escalation point for Finance to escalate
issues the Agency may experience with an Account
Manager;
Draft Module 2 – ICT Hardware and Associated Services
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34.2.2
provide contact details to Finance;
(iv)
be available within Business Hours; and
(v)
respond to enquiries (excluding request for quote)
within 1 Business Day of the enquiry being received.
Account Manager
(a)
35
(iii)
The role of the Account Manager is to:
(i)
provide reports as requested by Finance or Agency;
(ii)
provide pricing and quotes as requested by Finance;
(iii)
respond to enquiries (excluding request for quote)
within 1 Business Day of the enquiry being received.
(iv)
provide contact details to Finance and Agency;
(v)
be available within Business Hours;
(vi)
be the first escalation point for Finance to escalate
issues the Agency may experience with the Account
Manager’s sales support team;
(vii)
process the Contract Order Form within 2 Business
Days of the contract being received from the Agency;
and
(viii)
report progress to the Agency and provide timelines for
the Contract Order Form document; and
(ix)
provide replacement Contractor Personnel with
appropriate security clearances if required by the
Agency.
Product and Service Catalogue
Creation of the Product and Service Catalogue
35.1
35.2
The Contractor acknowledges that:
35.1.1
Finance has established, or will publish from time to time, a Statement of
Requirement for ICT Hardware and Services to be supplied under the
Deliverables in Part D - Deliverables; and
35.1.2
Finance has created, or will create, a Product and Service Catalogue
which sets out the Deliverables that the Contractor is entitled to offer to
supply to Agencies pursuant to this Module.
The Product and Service Catalogue will include details of the Deliverables which the
Contractor is entitled to supply to Agencies pursuant to this Module, and for each of
those Deliverables:
35.2.1
the Specifications;
35.2.2
the product warranty and Defect rectification provisions, including the
Warranty Period; and
35.2.3
the applicable Charges.
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35.3
The Contractor grants to Finance a licence to include information about its
Deliverables, including Charges, specifications, product warranty and Defect
rectification provisions and logos, in the Product and Service Catalogue.
Limitation to use of the Product and Service Catalogue
35.4
As per clause 4.13 of the Head Agreement and with reference to clause 33 of the
Contract Terms, the Contractor must not supply or offer to supply to Agencies any
mandatory Deliverables that are the same as, or similar to, the mandatory Deliverables
available in the Product and Service Catalogue.
Stable Hardware Specification
35.5
Within 5 Business Days of a request from Finance, the Contractor must provide to
Finance a schedule (Road Map) setting out in detail the planned changes to the
Hardware specified in the Product and Service Catalogue, including any changes to
model availability and specific components.
35.6
The Road Map must project planned changes to the Hardware specified in the Product
and Service Catalogue at least twelve (12) months in advance.
35.7
The Contractor must provide at least six (6) months Notice to Finance of proposed
changes in the specifications for the Hardware specified in the Product and Service
Catalogue.
35.8
The Contractor must ensure that Hardware specifications that may affect Agencies
Standard Operating Environment (SOE) remain unchanged for a minimum period of
twelve (12) months from the date the Hardware is added to the Product and Service
Catalogue.
35.9
the Contractor must, at no cost to the Agency, assist the Agency with the redevelopment of its SOE to accommodate the changes to the Hardware specifications
or configuration if requested to do so by the Agency if:
35.10
35.9.1
the Contractor has provided Hardware to an Agency; and
35.9.2
the Contractor changes the specifications or configuration of that Hardware.
The Contractor warrants that, except as otherwise specified in a Contract, the
specifications for all Hardware delivered under a Contract Order Form pursuant to
the Contract will be the same, whether delivered to one site or several different
sites.
Cessation of Production
35.11
The Contractor must ensure that it offers Hardware to Agencies in such a way that
does not reduce the abilities of Agencies to manage the ongoing development of their
SOEs.
35.12
The Contractor must notify Finance at least six (6) months prior to the date on which it
intends to cease production of an item of Hardware specified in the Product and
Service Catalogue.
Testing of Samples
35.13
If required, the Contractor must provide to Finance (or Agencies) test samples of each
item of Hardware it proposes to offer Agencies. Testing may be conducted in
accordance with clause 35.14.
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35.14
Finance may require the Contractor to conduct testing of samples of each item of
Hardware at an accredited test facility (where the facility is approved by Finance), at
the Contractor’s facility or at another location as agreed with Finance.
35.15
All testing must be conducted on the basis that:
35.16
35.15.1
the samples tested are exactly the same as those that will be supplied
under a Contract (and if the items supplied under a Contract are not the
same as a sample offered for testing, they will be deemed non-compliant
with the Contract, even if they comply with the Specifications); and
35.15.2
if required by Finance, the testing process is approved by Finance or in
the presence of Finance Personnel.
The Contractor must provide to Finance or the Agency a reasonable number of
samples of that Deliverable to enable that testing to be undertaken if at any time:
35.16.1
Finance requires the Contractor to provide samples of a Deliverable to
allow Finance to undertake testing to determine if the Deliverable meets
Finance's Statement of Requirements in order to assist Finance to
determine whether that Deliverable should be included in, or remain in,
the Product and Service Catalogue; or
35.16.2
Finance or an Agency requires the Contractor to provide samples of a
Deliverable to allow them to undertake testing to determine if the
Deliverable meets their requirements (such as interoperability with a SOE
or other equipment), in order to assist Finance or the Agency to
determine whether to place a Contract for that Deliverable.
Revisions to the Product and Service Catalogue
35.17
35.18
Finance may on a six (6) monthly basis unless otherwise determined by Finance in
its absolute discretion:
35.17.1
invite the Contractor (and other Panellists) to propose updates or
additions to the Product and Service Catalogue for one or more
Categories;
35.17.2
conduct a n evaluation of any updates or additions to the Product and
Service Catalogue proposed by the Contractor (and other Panellists) for
the relevant Category; and
35.17.3
issue a revised Product and Service Catalogue containing such updates
(including deletion or addition of Deliverables) as Finance determines, at
its absolute discretion, to be appropriate.
For Non-Mandatory categories upon receipt of an invitation from Finance pursuant to
clause 35.17.1, the Contractor may:
35.18.1
propose to increase or decrease any of the Charges included in the
Product and Service Catalogue for the relevant Category; or
35.18.2
propose an update or addition to the Deliverables included in the Product
and Service Catalogue or applicable Specifications for the relevant
Category (subject to any restrictions included in the Product and Service
Catalogue in respect of maintaining the availability of Deliverables for a
particular period).
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35.19
If, pursuant to clause 35.19, Finance receives a proposal from the Contractor to
decrease any of the Charges included in the Product and Service Catalogue, it will
amend the Product and Service Catalogue accordingly.
35.20
If, pursuant to clause 35.19, Finance receives a proposal from the Contractor to
increase any of the Charges included in the Product and Service Catalogue, it will
assess that proposal and may:
35.21
35.20.1
decline to amend the Product and Service Catalogue if the current
Charges had been offered by the Contractor as being fixed for a period
which is continuing;
35.20.2
amend the Product and Service Catalogue as requested; or
35.20.3
remove the Deliverable from the Product and Service Catalogue.
If, pursuant to clause 35.19, Finance receives a proposal from the Contractor to
update or add to the Deliverables or amend the Specifications included in the
Product and Service Catalogue, it will assess that proposal and may:
35.21.1
agree to amend the Product and Service Catalogue entirely or partly as
requested; or
35.21.2
decline to amend the Product and Service Catalogue.
35.22
The Contractor may submit a proposal to vary the Product and Service Catalogue at
any time, but any such proposal will only be considered in accordance with clauses
3 5 .19 to 35.22 and the Product and Service Catalogue will not be varied more often
than six monthly other than if otherwise determined by Finance in its absolute
discretion.
35.23
The Contractor must, in response to any request from Finance, identify any
additional requirements such as other hardware, software, firmware, cables,
manuals, accessories, training, or any other items that Agencies would need to
purchase to achieve full functionality of its Deliverables referred to in the Product
and Service Catalogue and the Charges associated with those additional
requirements.
36
Reporting
36.1
Further to clause 12 of the Contract, the Contractor must provide the reports set out
in Part C (Reporting Requirements) to Finance and provide Agency specific reports
as defined in the Contract Order Form to the Agency.
37
Supply of Hardware
Packaging and Quality Management
37.1
The Contractor will package all Deliverables to ensure their safe delivery, and if the
Agency sets out in a Contract any requirements for packing, marking or labelling,
the Contractor will comply with those requirements.
37.2
The Contractor will ensure that the Deliverables are packaged, marked, labelled
and delivered in accordance with the manufacturer's normal standard.
37.3
Any discrepancies in quantity or any damage to the Deliverables or packaging
found at the time of receipt will be corrected by the Contractor at no cost to the
Agency.
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37.4
The Contractor will during the Contract Term maintain and comply with a quality
system conforming to the appropriate quality system standard, and must possess a
current certificate issued by a Joint Accreditation System of Australia and New
Zealand (JAS- ANZ) accredited certification body certifying the Contractor's
compliance with that quality system.
37.5
The Contractor will ensure that its Subcontractors also maintain and comply with a
quality system conforming to the appropriate quality system standard, and possess
a current certificate issued by a JAS-ANZ accredited certification body certifying the
Subcontractor's compliance with that quality system.
37.6
For the purposes of this clause 37, the appropriate quality system standards will
be ISO 9001 Quality Management Systems, or an equivalent quality standard
approved by the Agency, or the Standards Australia quality system standards
applicable to the Deliverables specified in Schedule 3 - Attachment 2
(Deliverables and Pricing), for their design, manufacture, supply, delivery and
maintenance as appropriate.
Transfer of title and risk
37.7
Title in the Hardware components of the Deliverables passes to the Agency:
37.7.1
on Acceptance, for Deliverables that are to be Accepted;
37.7.2
on delivery to the Agency for Deliverables that are not required to be
Accepted; and
37.7.3
on replacement, in respect of items replaced during the Warranty Period.
37.8
Clause 37.7 does not apply to Hardware which is leased in accordance with
clause 38.
37.9
The Agency accepts risk for Loss of or damage to the Hardware components of the
Deliverables from the time the Agency takes delivery of the Hardware, except to the
extent that the Loss or damage is caused or contributed to by the Contractor or its
Personnel.
Operating Software Licence
37.10
The Contractor grants to the Agency (or shall procure the grant to the Agency of) a
non-exclusive, non-transferable licence to use the software (including operating
software) installed on or provided with the Hardware for all purposes related to the
use of the Hardware.
Documentation
37.11
The Contractor must supply Documentation for the Deliverables as specified in the
Contract Order Form and in accordance with clause 41.
Associated Services
37.12
The Contractor must perform any Associated Services specified in the Contract
Order Form.
Acquisition through a Reseller
37.13
The Contractor must, if it acquires the Deliverables through a Reseller, comply with
any additional requirements for that approach that are specified in the Contract
Order Form.
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Specific Warranties
37.14
37.15
The Contractor is wholly responsible for the quality of the Deliverables and, in
addition to other warranties in the Contract, warrants that the Deliverables will:
37.14.1
be newly manufactured;
37.14.2
be free from any material Defect in workmanship, design and Materials;
and
37.14.3
be fit for purpose.
Nothing in this clause 37 limits the application of any indemnity provided under the
Contract.
Rectification
37.16
Rectification of any Deliverables which do not conform to the requirements of the
Specifications or comply with any warranties applicable to a Contract will be in
accordance with the warranty rectification terms and procedures contained in
Schedule 3 - Attachment 2 (Deliverables and Pricing) or the Product and Service
Catalogue. If Schedule 3 - Attachment 2 (Deliverables and Pricing) or the
Product and Service Catalogue do not contain warranty rectification terms and
procedures for a particular Deliverable, the Contractor must:
37.16.1
within two Business Days of being informed by the Agency of a Defect,
replace the affected Deliverable(s) with Deliverable(s) that conform to the
Specifications and that comply with all warranties applicable to the
Contract; and
37.16.2
meet all costs associated with that replacement, including any packing,
freight, repair, modification, disassembly, reassembly site attendance or
other costs, except if the Defect in the Deliverable(s) is due to negligence
of the Agency.
37.17
Rectification work undertaken pursuant to clause 37.16 is subject to the same
Acceptance Testing requirements that applied to the original Deliverables.
37.18
Rectification work und ertaken pursu ant to clause 37.16 is warranted for the same
Warranty Period as applied to the original Deliverables, commencing on the date of
Acceptance of that rectification work.
37.19
If the Contractor does not rectify Deliverables as required by clause 37.16 within
the time frame required by the applicable warranty arrangements or clause 37.16
(as applicable):
37.19.1
the Agency may, at its discretion, perform or have performed that
rectification; and
37.19.2
the reasonable expenses of the rectification will be money due to the
Agency under the Contract.
Ongoing availability of Deliverables and spares
37.20
The Contractor warrants that, in respect of each item of Deliverables, the
Contractor will for a period of 4 years commencing on the Acceptance Date of that
Deliverable (or if the Deliverable is not subject to Acceptance, commencing on the
date of delivery or provision of the Deliverable):
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37.21
37.20.1
if there is a requirement in the Contract to provide support and spare
parts for that Deliverable, continue to provide the support and spare parts
for that Deliverable;
37.20.2
continue to supply all items required by the Agency that the Contractor
makes generally commercially available to enable the Agency to maintain
that Deliverable; and
37.20.3
if specified in the Contract, provide training for and such other assistance
as is reasonably required by the Agency to enable the Agency to continue
to maintain the Deliverable provided that the Contractor makes that
training or assistance generally commercially available.
Should the Contractor, despite the warranty in clause 37.20, be unable to continue
supplying spare parts at any time after the expiration of the Warranty Period, the
Contractor must give no less than 12 months advance Notice to allow the Agency
to purchase such spare parts as the Agency requires for continuing maintenance of
the Deliverables.
Extended Warranty
37.22
If specified in the Contract Order Form for some or all Deliverables to be supplied
under the Contract, the parties' rights and obligations under the warranties set out
in the Specific Contract Terms extend for the additional period specified in the
Contract Order Form.
37.23
This clause 37 survives termination or expiration of the Contract.
38
Leasing of Hardware
38.1
If an Agency and the Contractor agree that Hardware to be supplied under a
Contract is to be leased, the parties must enter into a separate lease arrangement
in addition to the Contract in relation to that Hardware.
38.2
The Contractor must ensure, whether or not the Contractor is the lessor entity, that
the leasing terms for any leased Hardware are accepted by the Agency and are
consistent with this Module and any Contract placed under it.
38.3
The Contractor will be responsible for managing and resolving any inconsistencies
between this Module and any Contract on the one part, and a leasing arrangement
on the other part, and for any Loss arising from failure to comply with this
clause 38.
39
Standards and Codes
39.1
The Contractor must, in supplying Deliverables, comply with:
39.2
39.1.1
any standards specified in the Contract Order Form;
39.1.2
if there are no standards specified in the Contract Order Form, any
applicable Australian or New Zealand standards that are consistent with
the Specifications; or
39.1.3
if there are no standards specified in the Contract Order Form and no
applicable Australian or New Zealand standards, any applicable
international standards that are consistent with the Specifications.
The Contractor must, in supplying Deliverables, comply with any industry codes or
best industry practice methodologies specified in the Contract Order Form.
Draft Module 2 – ICT Hardware and Associated Services
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39.3
The Contractor must perform its obligations under a Contract in such a way that the
Commonwealth is able to participate in any necessary inspections of work in
progress and tests or evaluations of the Deliverables, and is able to maintain full
use of the Deliverables for the purposes for which they are delivered without being
in breach of any workplace health and safety Laws.
40
Documentation
Provision of Documentation
40.1
The Contractor must give the Agency electronic access to up-to-date, complete and
accurate Documentation including Documentation that the Contractor usually makes
available free to its best customer for the Deliverables required to be supplied under
a Contract.
40.2
In addition to the Documentation usually provided to the Agencies the Documentation
is to include:
40.3
40.4
40.2.1
details of the operation of env ironmental management fe atures to
minimise the cost s and environmental impacts of operating the ICT
Hardware; and
40.2.2
a Safety Data Sheet complying with the Code of Practice for the
Preparation of Safety Data Sheets for Hazardous Chemicals of the Work
Health and Safety Act (the WHS Act) for any material incorporated into the
Hardware which may give rise to a health, safety or environmental effect.
The Contractor must provide the Documentation:
40.3.1
in accordance with the applicable Contract;
40.3.2
upon supply of the Deliverables to the Agency or promptly after a
variation to the Documentation;
40.3.3
at no additional cost to the Agency; and
40.3.4
in both hard copy and in a consolidated electronic form that is readable by
generally available software products.
The Contractor must ensure that, at the time of delivery, the Documentation:
40.4.1
contains sufficient information to enable the Agency to have full use,
operation and maintenance of the Deliverables;
40.4.2
is current, accurate and consistent with the Specifications;
40.4.3
is of a professional standard in terms of its presentation, accuracy and
scope;
40.4.4
adequately explains key terms and symbols; and
40.4.5
is in English.
40.5
If any Documentation is revised or replaced for any reason during the Term, or
needs to be revised or replaced to update it or to correct inaccuracies, the
Contractor must give the Agency access to revisions or replacements at no
additional cost to the Agency.
40.6
Agency Personnel may use the Documentation for any use in conjunction with the
use of the Deliverables including undertaking other tender processes,
maintenance and support activities, internal training activities associated with the
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Deliverables and auditing or reviewing the Contractor’s performance under the
Contract.
40.7
The Contractor grants to the Agency the applicable licences in respect of the
Documentation.
41
Delivery Management
Project Management
41.1
The Contractor is responsible for project management and for undertaking all tasks,
including planning and management, required to meet the Contractor's obligations
under the Contract and must utilise for this purpose a project management
methodology acceptable to the Agency for each Contract and specified in the
Contract Order Form.
41.2
The Contractor must, for each Contract, and unless otherwise specified in the
Contract Order Form, develop for Acceptance by the Agency a Project Plan that
provides for the following matters:
41.3
41.2.1
an outline of the proposed project management methodology;
41.2.2
the names, roles and responsibilities of any Key Personnel;
41.2.3
a schedule for provision and Acceptance of the Deliverables;
41.2.4
a list of all Milestones;
41.2.5
the proposed risk management approach;
41.2.6
a detailed risk register, updated from time to time; and
41.2.7
any other matter referred to in the Contract Order Form.
If the Project Plan is approved by the Agency, it will be deemed to be incorporated
into the Contract, and the Contractor must:
41.3.1
provide the Deliverables in accordance with the Project Plan and in
particular the Milestones; and
41.3.2
maintain and update the Project Plan in consultation with the Agency
throughout the Term. Any change to the Project Plan that is inconsistent
with the Contract must be agreed in writing by the Agency in accordance
with clause 27 of Part A – Standard Contract Terms.
Cooperation with Personnel
41.4
In the performance of its obligations under a Contract, the Contractor must, at no
additional cost to the Agency:
41.4.1
fully cooperate with the Agency Personnel; and
41.4.2
use its best efforts to coordinate its activities so as to support and facilitate,
in the Agency's best interests, the timely and efficient completion of all
work and other activities to be performed for the Agency by any person.
Cooperation with other contractors
41.5
In the performance of its obligations under this Module or a Contract, the Contractor
must, at no additional cost to the Agency, fully cooperate with third party contractors
including Panellists appointed by the Agency who supply the same, similar or other
products to the Agency (Third Parties) including to
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41.5.1
work together in a collaborative manner, co-operatively and productively
with Third Parties (including providing all reasonable co-operation and
assistance requested by Third Parties):
(a)
to meet an Agency's business requirements, agreed objectives and
obligations under this Module or any Contract;
(b)
so that Agencies receive a seamless, end-to-end service within a
potentially multi-contractor environment; and
(c)
so that Agencies are not adversely affected by Deliverables being
provided from multiple sources;
41.5.2
establish working relationships with Third Parties, including as necessary,
through clarifying responsibilities, objectives, expectations, requirements
and priorities with Third Parties;
41.5.3
develop efficient communications with Third Parties including proactively
communicating and sharing information with Third Parties in a meaningful,
timely and contractually sensitive and compliant manner;
41.5.4
use any co-operation processes and procedures or engagement models
specified by Finance or an Agency from time to time and seek to improve
these processes, procedures and models over time to improve the
performance of the Contractor and other Panellists;
41.5.5
know and understand the responsibilities of Third Parties that interact with
the Contractor;
41.5.6
be flexible and efficiently, ethically and professionally deal with and act
towards Third Parties to address any changes to an Agency's business
over time;
41.5.7
work with the Agency and Third Parties to solve issues with Third Parties in
an efficient, effective and ethical manner prior to instituting a Dispute in
relation to those issues with Third Parties;
41.5.8
use nominated tools and processes or interface with other Third Parties'
tools or processes as required by any Contract; and ensure relevant
security requirements are adhered to at all times.
Monitoring progress
41.6
The parties will meet at times agreed in writing between the parties to discuss any
issues in relation to performance of the Contractor or the provision of Deliverables.
The Contractor must ensure that the Contractor Representative, and the Agency must
ensure the Agency Representative, is reasonably available to attend such meetings
and answer any queries relating to the provision of the Deliverables raised by either
party.
Extension of time
41.7
The Contractor must, on becoming aware that it will be unable to meet a Milestone or
any other obligation under the Contract, promptly Notify the Agency and provide
details of the cause of the anticipated delay or failure and of the Contractor's proposal
for managing the delay.
41.8
Without limiting the parties' obligations to minimise and manage risk in accordance
with the Contract (including in accordance with any risk management methodology
agreed by the parties in accordance with the Project Plan), if the Contractor is
delayed in the provision of the Deliverables and the event giving rise to the delay:
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41.8.1 is beyond the Contractor's reasonable control;
41.8.2 could not have reasonably been contemplated by the Contractor; or
41.8.3 is caused by the Agency,
the Contractor may request an extension of time for the provision of the Deliverables
in accordance with the variation procedures in clause 27 of Part A Standard Contract
Terms.
41.9
If the Agency agrees to any extension of time, the parties will vary the Contract in
accordance with the variation procedures in clause 27 of Part A Standard Contract
Terms.
Agency Supplied Items
41.10
The Agency must provide any Agency Supplied Items specified in the Contract Order
Form.
41.11
The Agency Supplied Items remain the property of the Agency. The Contractor must
return all Agency Supplied Items that are no longer required for the purposes of the
Contract to the Agency as soon as practicable (unless other arrangements are
agreed in writing by the parties).
41.12
The Contractor must:
41.12.1
not do any of the following without the prior written approval of the
Agency:
(a)
use or allow others to use any Agency Supplied Item other than for
the purposes of the Contract;
(b)
part with possession or custody of any Agency Supplied Items;
(c)
create or allow the creation of any lien, charge or mortgage over any
Agency Supplied Item;
(d)
modify any Agency Supplied Items; or
(e)
remove Agency Supplied Items from the Agency's premises or
facilities;
41.12.2
take all reasonable care of all Agency Supplied Items including accounting
for, preserving, installing, storing or handling of Agency Supplied Items;
41.12.3
promptly inform the Agency of any loss, destruction or damage to any
Agency Supplied Items and, if requested by the Agency and to the extent
that such loss, destruction or damage has been caused by the fault of the
Contractor or Contractor Personnel, as soon as practicable replace the
Agency Supplied Items at no cost to the Agency;
41.12.4
comply with any reasonable instructions of the Agency for preserving,
forwarding or disposing of any damaged Agency Supplied Items at its own
cost provided that such damage has been caused by the fault of the
Contractor or Contractor Personnel; and
41.12.5
indemnify the Agency for any loss or destruction of, or damage to, any
Agency Supplied Items of a tangible nature caused by any act or omission
of the Contractor or Contractor Personnel.
Agency Assistance
41.13
The Agency will:
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41.13.1
make available, as reasonably requested by the Contractor, any
management decisions, information and approvals that are reasonably
necessary for the Contractor to perform or provide the Deliverables; and
41.13.2
provide to the Contractor any accommodation, facilities, equipment,
furnishings, fixtures, support and other assistance specified in the
Contract Order Form.
41.14
The Contractor must comply with any terms set out or referred to in the Contract
Order Form, or Notified by the Agency, in relation to any provision of accommodation,
facilities, equipment, furnishings, fixtures, support or other assistance by the Agency.
42
Access
Access to Agency's Site
42.1
The Agency must cooperate with the Contractor by providing access to its premises
and facilities as provided in the Contract Order Form and to the extent reasonably
necessary (during ordinary Business Hours) so as to enable the Contractor to perform
or provide the Deliverables.
42.2
The Contractor must, if using or accessing the Agency's premises and facilities,
comply with all reasonable directions and procedures, including documented
procedures relating to occupational health and safety and security, in effect at those
premises or facilities, whether Notified to the Contractor or as might reasonably be
inferred from the circumstances.
42.3
In addition to the requirements of clause 42.2, the Contractor agrees that when
accessing the Agency’s premises and facilities, it will comply with all applicable
Commonwealth, State and local government Laws, regulations and procedures
relating to occupational health and safety.
42.4
Access to the Agency's premises and facilities may be temporarily denied or
suspended by the Agency, at its sole discretion. If access is temporarily denied or
suspended by the Agency (except in circumstances when access is temporarily
denied or suspended due to an investigation into the conduct of the Contractor’s
Personnel), the Contractor will be entitled to an extension of time to complete any
obligations which are directly and adversely affected by the denial of access. Without
limiting the foregoing, the Agency will, following a temporary denial or suspension of
access, permit a resumption of access as soon as practicable.
42.5
To the extent specified in Contract Order Form, the Agency will be responsible for
preparation of its premises and/or facilities to enable the Contractor to perform or
provide the Deliverables.
Technology Threats
42.6
The parties must comply with all requirements specified in the Contract Order Form in
relation to the protection of data or Materials, including any anti-virus and firewall
requirements (their installation, operation and maintenance) and obligations to backup data or Materials.
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43
Security
Security clearance
43.1
The Agency may, from time to time, Notify the Contractor of the level of security or
access clearance required for Contractor Personnel in respect of the performance of
a particular Contract, and of the date from which, or the period during which, that
clearance will be required and the Contractor must comply with, and ensure that
Contractor Personnel act in accordance with, that Notice.
43.2
The Contractor is responsible for all costs associated with obtaining security
clearances.
43.3
If the Agency denies access to or requests removal of any Contractor Personnel on
the basis that they have failed to obtain or ceased to hold the level of security or
access clearance required by a Notice issued within the time specified in the Notice,
the Contractor must provide suitable replacement Contractor Personnel in
accordance with clause 34.2.2.
Protection of Agency data
43.4
The Contractor must not, and must ensure that Contractor Personnel do not, without
the Agency's prior written consent:
43.4.1
remove Agency data or allow Agency data to be removed from the
Agency's premises; or
43.4.2
remove Agency data or allow Agency data to be removed from the
Contractor's premises; or
43.4.3
take Agency data or allow Agency data to be taken or transmitted by any
means outside of Australia.
43.5
The Agency may impose conditions on any consent provided under this clause 43.5
and the Contractor must comply with those conditions.
43.6
The Contractor must immediately Notify Finance and the Agency, and must comply
with all directions of Finance or the Agency, if the Contractor becomes aware of any
contravention of the Agency’s data security requirements.
Access by foreign service providers
43.7
43.8
The Contractor must not, except as approved in advance in writing by the Finance
Representative:
43.7.1
transmit or store outside of Australia any information of an Agency acquired
by the Contractor, or to which the Contractor has gained access, in the
performance of a Contract (including personal information, other information
held by the Agency in the performance of its functions and information
about the information technology products, systems or architecture of the
Agency); or
43.7.2
permit or enable access by a person outside of Australia to any of the
information referred to in clause 43.7.1.
Any request for the approval of the Finance Representative may be:
43.8.1
granted or rejected by the Finance Representative in his/her absolute
discretion and with or without giving reasons; and
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43.8.2
43.9
may be given subject to conditions, in which case the Contractor must
comply with those conditions prior to and during the transmission, storage
or access which has been permitted.
The Contractor acknowledges and agrees that:
43.9.1
the Agency holds and deals with highly sensitive information;
43.9.2
Finance and the Agency are concerned that such information is not
improperly used or disclosed contrary to the Head Agreement, a Contract or
any Laws; and
43.9.3
use or disclosure of such information contrary to this Module or a Contract
may constitute a breach to which clause 25.1 applies.
Non Return of Hardware
43.10
The Contractor agrees that the following restrictions may apply to the return of
Hardware that is the subject of a warranty claim under a Contract. The first level
applies only to non-volatile storage (such as disk drives). The second is more
stringent and includes the desktop or notebook itself.
43.11
Level 1 restrictions include the following:
(a)
all devices containing non-volatile storage cannot be returned to the
Contractor due to Agency security requirements;
(b)
part numbers or inspection by security cleared Contractor personnel
of failed or replaced non-volatile may be authorised by the Agency;
and
(c)
storage media devices can be provided to the Contractor for warranty
record purposes.
43.12
Where level 1 restrictions apply, the Contractor's warranty arrangements must comply
with the requirements in paragraphs 43.11(a) to 43.11(c) and all pricing must include
these requirements as standard.
43.13
Level 2 restrictions include the following:
43.14
(a)
all devices that store information at some stage (such as
motherboards, remote management cards, SCSI cards, RAM, disks,
etc.) cannot be returned to the Contractor due to Agency security
requirements. When applied to the Hardware requirement, this results
in only the power supply being able to be returned in case of device
failure;
(b)
part numbers or inspection by Contractor Personnel with the
appropriate security clearance of failed or replaced non-volatile
storage media devices can be provided for warranty record purposes.
Where level 2 restrictions apply, the Contractor's warranty arrangements must comply
with the requirements in paragraphs 43.13(a) and 43.13(b) and all pricing must
include these requirements.
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Part C – Reporting Requirements
44
General
44.1
At no cost to Finance or any other Agency, the Contractor must provide Finance with
the reports for each ICT Hardware Deliverable for which it is enrolled as set out in the
Product and Service Catalogue, in a format as specified by Finance or the Agency, or
as set out in a Contract.
44.2
The Contractor must provide reports and Materials for Module 2, including:
Sales Report
44.3
The Contractor must, by the fifth Business Day of each month, send to Finance via
email a Sales Report in the format agreed with Finance and reporting on the matters
as may be advised by Finance from time to time, these may include but are not limited
to details of the Agency Contracts for Deliverables in the preceding calendar month,
including Agency name, category, Make, model numbers Agency identification
(Contract Number), date of invoice, date of order placed, quantity, unit prices and total
value.
Activity Report
44.4
44.5
The Contractor must, by the tenth Business Day of each month, send to Finance via
email an Activity Report in the format agreed with Finance and reporting on the
matters as may be advised by Finance from time to time, These may include but are
not limited to:
44.4.1
the performance standard response times for all Deliverables;
44.4.2
delivery information, including any delays; and status of outstanding Agency
warranty issues, including mean time to repair.
44.4.3
if no actual consumption of services is made, a nil response will be
required.
Finance reserves the right to vary these requirements.
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Part D – Deliverables
45
Deliverables
45.1
At Finance’s absolute discretion, Finance reserves the right to change the
requirements and Deliverables from time to time in this Part D – Deliverables and the
Product and Service Catalogue.
Product and Service Categories
Deliverables
Panellist will only supply the Categories
marked below
Category 1 Desktop PC
Category 2: Mobile PCs
Category 3: Virtual Desktop Device
Category 4: Monitors
Category 5: Centralised Services









Asset Tagging
Asset Configuration and Control
Contractor Supplied Technical Support
Disposal
Order Monitoring
Pre Delivery Configuration
Pre Delivery Imaging
Reporting
Sanitisation
Category 6: Installation Services




Basic Installation
Decommissioning
Extended Installation
Support and Floor Walking
Category 7: Servers


Category 8: Server Racks


[Note: To be updated based on each successful Tenderer's offerings.]
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Part E – Charges
46
Deliverables Charges
46.1
At Finance’s absolute discretion, Finance reserves the right to change the charges
from time to time in this Part E - Charges and the Product and Service Catalogue.
Table 1 - Charges
Deliverables - Product and Service Categories
Category 1: Desktop PC
Category 2: Mobile PC
Category 3: Virtual Desktop Devices
Category 4: Monitors
Item
No
Deliverable
3.
Contractor Supplied Technical Support
4.
Disposal
5.
Order Monitoring
6.
Pre Delivery Configuration
7.
Pre Delivery Imaging
8.
Reporting
9.
Sanitisation
Category 1-4 are Mandatory
Products and the pricing will be
based on the Product and
Service Catalogue.
Charges
(exclusive of
GST)
Category 5: Centralised Services – Non-mandatory Services
1.
Asset Tagging
2.
Asset Configuration and Control
Charges
(inclusive of
GST)
Category 6: Installation Services – Non-mandatory Services
1.
Basic Installation
2.
Decommissioning
3.
Extended Installation
4.
Support and Floor Walking
Category 7: Servers – Non-mandatory Products
1.
2.
3.
Category 7 pricing will be
based on the Product and
Service Catalogue.
Category 8: Server Racks – Non-mandatory Products
1.
2.
3.
[Note: To be updated based on each successful Tenderer's offerings.]
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Schedule 3 – Module 2, Attachment 3 - ICT Hardware and Associated Services
- Contract Order Form
In accordance with the Head Agreement (No. [to be supplied by Finance]) between the
Commonwealth of Australia represented by the Department of Finance (ABN 61 970 632
495) and [INSERT] (ABN INSERT]) (Contractor), the Agency (described in Item 3 below)
places this Order to enter into a Contract for the Deliverables described below in accordance
with the terms and conditions described in the Head Agreement.
Table 1 - Contract Order
1.
Contract Number:
[To be supplied by Finance]
2.
Contractor:
[Insert Contractor name]
3.
Agency:
[Insert Agency name]
4.
Agency’s Purchase Order
Number:
[Insert Agency’s Purchase Order Number]
5.
Contract Start Date (clause
2.1of the Contract):
[Insert date the Contract is due to start eg. dd/mm/yy or
otherwise insert 'on execution']
6.
Term for Contract (clause
2.1of the Contract):
[Insert period of time for which the Contract will run prior
to any extensions]
7.
Contract Option Period
(clauses 2.2 to 2.4 of the
Contract):
[Insert any period of time for which the Contract might
be extended]
8.
Deliverables (clause 3.1 of
the Contract and Part D
(Deliverables):
[Deliverables description should include specifications
such as quantity of ICT Hardware Products, any
particular technical specifications, location of the
Deliverables, delivery date]
9.
Associated Services
(clause 38.12 of the
Contract):
[Provide details of Associated Services (support
services from the Centralised Services and Installation
Services categories) to be provided by the Contractor
including timelines, location, etc. Otherwise insert 'not
applicable']
10.
Documentation (clause 41
of the Contract):
[Insert details of Documentation to be supplied by the
Contractor in addition to that Documentation required to
be provided under clause 41. If no additional
Documentation is to be provided, state 'as per clause
41]
11.
Location of Deliverables:
[Insert location(s)]
12.
Security requirements
including compliance with
the ISM and PSPF (clause
20 of the Contract):
[Insert security requirements such as Whether the
Contractor will require security clearances]
13.
Acceptance Testing and
Acceptance Criteria (clause
4 of the Contract):
[insert agreed Acceptance arrangements]
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14.
Service Levels (clause 5 of
the Contract):
[insert details of Performance Framework including
whether Service Credits are the Agency's sole remedy]
15.
Service Credits (clause 5 of
the Contract):
[insert details of Performance Framework required by
the Agency]
16.
Reporting (clause 12 of the
Contract):
[insert Reports required by the Agency]
17.
Key Personnel (clause 6 of
the Contract):
[insert]
18.
Subcontractors (clause 7 of
the Contract):
[insert Approved Subcontractors that are subject to
clause 7.]
19.
Charges (clause 8 of the
Contract and Annexure 2 –
Charges and Payments ):
[Insert]
Payment of Charges (clause
8 of the Contract and
Annexure 2 Charges and
Payments):
Attention: [Insert]
20.
[Hardware costs and installation/other set up costs,
hourly rates]
Address: [Insert]
[Specify preferred method for payment of Charges –
e.g. electronic transfer and include bank details]
Account Name:
Bank:
BSB number
Account number:
Branch:
Warranties (clause 9 of the
Contract) and Extended
warranty (clause 38.22 of
the Contract):
[insert any other warranties]
22.
Agency Representative and
address for service
(clauses 11 and 28 of the
Contract):
[Insert contact name]
{Insert title}
[insert address, including postcode]
[Insert email address]
Telephone: {insert telephone number, including area
code}
Mobile: {insert mobile number}
Facsimile: [insert facsimile number, including area
code]
23.
Contract Contractor
Representative and address
for service (clauses 11 and
28 of the Contract):
[Insert contact name]
{Insert title}
[insert address, including postcode]
[Insert email address]
Telephone: {insert telephone number, including area
code}
Mobile: {insert mobile number}
Facsimile: [insert facsimile number, including area
code]
21.
Draft Module 2 – ICT Hardware and Associated Services
[If an extended warranty for the Hardware exists, insert
details of warranty here. Otherwise insert 'not
applicable']
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24.
Intellectual Property Rights
(clause 17 of the Contract):
[insert details of IPR and ownership including any
additional clauses]
25.
Agency Confidential
Information under this
Order (clause 18 of the
Contract):
[Insert]
26.
Contractor Confidential
Information under this
Order (clause 18 of the
Contract and Annexure 3 –
Contractor Confidential
Information:
[Insert]
27.
Liability Cap (clause 23 of
the Contract):
[insert details of Agency/Contractor agreed liability cap
e.g. three times the contract value]
28.
Indemnity (clause 24 of the
Contract):
[insert details of Contractor indemnity if different to
clause 24]
29.
Standards and Codes
(clause 40 of the Contract):
[Insert specific standards for the supply of Deliverables
including industry codes or best industry practice
methodologies. Otherwise insert 'not applicable']
30.
Acquisition through a
Reseller (clause 38.18 of the
Contract):
[If Hardware is acquired through a Reseller, insert
details of additional requirements, if any. Otherwise
insert 'not applicable']
31.
Project Management
(clause 42 of the Contract):
[Specify any other matters that need to be included in
the Project Plan in addition to those in clause 32.2.
Otherwise insert 'not applicable']
32.
Agency Supplied Items
(clause 41 of the Contract):
[Insert details of any Agency Supplied Items to be
provided to the Contractor. Otherwise insert 'not
applicable']
33.
Agency Assistance and
responsibility for
preparation of the
premises/facilities (clauses
41 and 42 of the Contract):
[Insert any access to Agency site, accommodation,
facilities, equipment, furnishings, fixtures, support and
other assistance to be provided to the Contractor]
34.
Technology threats (clause
43.7 of the Contract):
[Insert details of the parties' obligations in relation to
technology threats.]
35.
Other:
[insert details of any special conditions or amendments
approved by Finance]
Draft Module 2 – ICT Hardware and Associated Services
[Insert details of the Agency's obligations for the
preparation of its premises and / or facilities]
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Execution
Executed as an agreement for and on behalf
of [INSERT NAME of Agency] (ABN [INSERT
ABN of Agency]) by its duly authorised
delegate:
In the presence of:
................................
Signature of delegate
................................
Signature of witness
.....................
Name of delegate (print)
................................
Name of witness (print)
................................
Date
................................
Date
Executed as an agreement by [INSERT
NAME of Contractor] (ABN [INSERT ABN of
Contractor]) in accordance with Section 127
of the Corporations Act 2001 (Cth):
In the presence of:
................................
Signature of Director
................................
Signature of Director/Company Secretary
.......................
Name of Director (print)
................................
Name of Director/Company Secretary (print)
................................
Date
................................
Date
OR
Executed as an agreement for and on behalf
of [INSERT NAME of Contractor] (ABN
[INSERT ABN of Contractor]) under Power of
Attorney dated [INSERT Date of Power of
Attorney]:
In the presence of:
................................
Signature of Attorney
................................
Signature of Witness
.......................
................................
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Name of Attorney (print)
Name of Witness in Full (print)
................................
Date
................................
Date
OR
Executed as an agreement for and on behalf
of [INSERT Contractor’s name] (ABN
[INSERT ABN]) by its duly authorised
delegate:
In the presence of:
................................
Signature of authorised representative
................................
Signature of witness
.....................
Name and position of authorised
representative (print)
................................
Name of witness (print)
................................
Date
................................
Date
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Annexure 1 - Statement of Work
Deliverables
Specifications
[Specify each Deliverable to be supplied under the
Contract]
[Include Specifications or refer to an Attachment]
[Specify Deliverables required]
Specific Contract Terms
Site Preparation [clause 43.6: Insert details of the Customer's obligations for the preparation of the site
in anticipation of the delivery and installation of a Deliverable]
Acceptance Criteria [clause 4: Insert any additional Acceptance Criteria, if any]
Acceptance Testing [clause 4: Insert details of testing requirements as precondition to Acceptance.
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Annexure 2 – Charges and Payment
1.
Deliverables and Charges Table
Item
Number
Charges (GST
exclusive)
Deliverable
1.
2.
3.
4.
5.
Subtotal
GST
Total (GST inclusive)
2.1
Payment of Charges specified in this Schedule is subject to:
2.1.1 provision of a correctly rendered invoice at least 20 Business Days before the due date for
payment specified in this Annexure; and
2.1.2 if the invoice has not been reduced in accordance with an applicable reduction in Charges
formula, the Customer's right to reduce the payment by the amount of any Service Credit.
2.2
The formula for the reduction of Charges or application of a Service Credit referred to in
paragraph 2.1.2 is set out below:
A credit of 1% of the total Contract value will be payable to the Customer for each Business Day the
Contractor fails to comply with a delivery requirement specified in a Contract to a cap of 10% of the total
Contract value.
2.3
For the purpose of reductions in Charges or credits to the Customer arising under the
Contract, the Customer will calculate the amount due as a reduction or credit based on measurement of
the Contractor's performance under the Contract and the formulae referred to in paragraph 2.2.
2.4
Payments of Charges due under the Contract will be made to the Contractor in accordance
with the Contract. Payment to the Contractor by the Customer is in full satisfaction of the Customer's
payment obligations to the Contractor.
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