Data Centre as a Services Project
Head Agreement (Deed)
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Date
[insert date]
If this Head Agreement is undated above, the Parties agree the date of this Head
Agreement will be the date on which this Head Agreement was executed by the last party
to do so
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Parties
The COMMONWEALTH OF AUSTRALIA (Commonwealth) as represented by the
Department of Finance and Deregulation (ABN 61 970 632 495) (Finance)
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and
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[Insert name of PROVIDER] (ABN [insert Provider's ABN]) (Provider).
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Background
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3.1
Finance has established a Data Centres as a Service Multi-Use List (MUL) from which
Agencies may acquire the Services Information, Communication and Technology (ICT)
services, including cloud computing services (Services).
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3.2
The Provider applied for inclusion in the MUL.
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3.3
Having satisfied the Conditions for Participation, Finance appointed the Provider to the
MUL on the terms set out in this Head Agreement.
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3.4
The Provider has fully informed itself on all aspects of the Service requirements and has:
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a) represented to Finance in respect of this Head Agreement, and represents to each
Customer in respect of each Contract, that it has the ability to supply the Services; and
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b) offered to enter into this Head Agreement under which Agencies can purchase the
Services.
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3.5
The Parties have agreed to enter into this Head Agreement, by which the Provider offers to
provide Services on the terms and conditions contained in this Head Agreement and any
Contract formed under this Head Agreement.
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Definitions
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4.1
Definitions, Interpretation and Order of precedence
In this Head Agreement including the Contract Terms, except where the contrary intention
is expressed, the following definitions are used:
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Agency means any one or more of the following as the context requires:
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a) all agencies subject to the Financial Management and Accountability Act 1997;
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b) all bodies subject to the Commonwealth Authorities and Companies Act 1997;
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c)
all other bodies governed by the Governor-General or a Minister of the Commonwealth
or over which the Commonwealth exercises control; and
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d) all bodies governed by a State Governor or by a Minister of a State or Territory or over
which a State or Territory exercises control (including departments in State or Territory
Governments);
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Application for Inclusion (AFI) means the application submitted by the participant to the
Commonwealth seeking inclusion on the MUL, of which [insert reference to the Part of the
AFI that you want to form part of the Head Agreement] forms part of the Head Agreement;
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Authorised Representative means the authorised representative of the party in this Head
Agreement specified in clause 33 of this Head Agreement;
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Business Day means any day that is not a Saturday or Sunday or a public holiday or a
bank holiday in the jurisdiction that the Services are to be performed;
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Charges mean the amount or amounts (including GST or other tax) payable by the
Customer to the Provider for the Services in accordance with the Contract;
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Commencement Date means the commencement date specified in the Contract;
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Condition of Participation means the conditions for participation set out in [insert
reference] of the AFI;
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Confidential Information means:
a. in relation to Finance or a Customer, information that:
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i.
is by its nature confidential;
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ii.
is designated by Finance or the Customer as confidential; or
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iii.
the Contractor knows or ought to know is confidential, including:
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1.
information comprised in or relating to any of Finance’s or the Customer’s
Intellectual Property);
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2.
information relating to the policies, strategies, practices and procedures of
Finance or the Customer and any information in the Contractor's possession
relating to Finance or the Customer;
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3.
information relating to other contractors of Finance or the Customer
(including Panellists); and
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4.
Security Classified Information; or
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iv.
is Customer Material or data,
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but does not include information which:
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v.
is or becomes public knowledge other than by breach by the Provider of any
confidentiality obligation; or
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has been independently developed or acquired by the Provider as established by
written evidence; and
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b.
in relation to the Provider, means information specified in the Work Order.
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Contract means a contract formed pursuant to clause 12 of this Head Agreement;
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Contract Manager means the contract managers specified in clause 0 of the Contract
Terms;
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Contract Terms means Schedule 3 of this Head Agreement.
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Customer means the Agency specified as a Customer in the Contract;
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Fair Work Principles mean the Australian Government Fair Work Principles released by
the Minister for Employment and Workplace Relations on 31 July 2009
http://www.deewr.gov.au/WorkplaceRelations/Policies/FairWorkPrinciples/Pages/Publicatio
ns.aspx;
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Fair Work Principles User Guide means the Fair Work Principles User Guide (November
2011) released by the Department of Education, Employment and Workplace Relations
http://www.deewr.gov.au/WorkplaceRelations/Policies/FairWorkPrinciples/Pages/Publicatio
ns.aspx;
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General Interest Charge Rate means the general interest charge rate determined under
section 8AAD of the Taxation Administration Act 1953 on the day payment is due,
expressed as a decimal rate per day;
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GST means a Commonwealth goods and services tax imposed by the GST Act;
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GST Act means A New Tax System (Goods and Services Tax) Act 1999;
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Head Agreement means this Deed and the schedules to this Deed;
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Head Agreement Term means the Initial Term plus any extension in accordance with
clause 6.2;
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Intellectual Property Rights means all intellectual property rights that may subsist in
Australia or elsewhere, whether or not they are registered or capable of being registered;
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Law means any applicable statute, regulation, by-law, ordinance or subordinate legislation
in force from time to time in Australia, whether made by a State, Territory, the
Commonwealth, or a local government, and includes the common law and rules of equity
as applicable from time to time, and any applicable Australian industry codes;
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Material means any material brought into existence as part of, or for the purpose of
providing the Services, and includes but is not limited to documents, equipment,
information or data stored by any means;
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Moral Rights means the right of attribution of authorship of work, the right not to have
authorship of work falsely attributed and the right of integrity of authorship as defined in the
Copyright Act 1968;
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Data Centre as a Service Multi-Use List (MUL) means the multi-use list established by
Finance to enable Customers to acquire the Services;
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Operational Rules means the rules governing how the MUL will operate set out in [insert
reference to schedule] of this Head Agreement;
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Parties mean the parties to this Head Agreement or parties to a Contract;
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Schedule means any schedule to this Head Agreement;
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Service Catalogue means the service catalogue specified in clause 9 and annexed to
Schedule 1 of this Head Agreement;
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Service Levels means the service levels specified in the Work Order;
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Services means the services listed in the Service Catalogue, all or some of which may be
required to be provided by the Provider under a Contract;
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Small Business means an enterprise that employs less than the full time equivalent of 20
persons on the day that a Contract is formed. If the enterprise forms part of a group, this
test is applied to the group as a whole;
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Special Conditions means the special conditions attached to the Work Order;
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Specified Personnel means the personnel specified in the Work Order to provide the
Services; and
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Work Order means the work order form set out in Schedule 2 of this Head Agreement.
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Interpretation
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4.2
In this Head Agreement including the Contract Terms, unless the contrary intention
appears:
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Gender - words importing a gender include the other gender;
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Plurals - words in the singular include the plural and vice versa;
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Headings - clause headings are for convenient reference only and have no effect in
limiting or extending the language of provisions;
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Persons - words importing a person include a partnership and a body corporate;
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Australian Dollars - a reference to dollars is a reference to Australian Dollars;
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Legislation - unless stated otherwise, a reference to legislation is to legislation of the
Commonwealth, and includes any statutory modification, substitution or re-enactment of
that legislation or legislative provision;
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Words with Defined Meaning - if any word or phrase is given a defined meaning, any
other part of speech or other grammatical form of that word or phrase has a corresponding
meaning;
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Schedule - the Schedule and any attachments form part of this Contract;
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Figures - a reference to writing is a reference to any representation of words, figures or
symbols, whether or not in a visible form;
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Limitation of words - the meaning of general words is not limited by specific examples
introduced by including, for example or similar expressions;
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Document as varied - a reference to a document or instrument includes the document or
instrument as novated, altered, supplemented or replaced from time to time;
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Time - a reference to time is to the time in the place where the obligation is to be
performed;
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Trustee - if the Provider is a trustee, the Service Provider enters this Head Agreement and
any Contracts personally and in its capacity as trustee and warrants that it has the power
to perform its obligations under this Head Agreement and any Contracts;
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Binds jointly and severally - any agreement, representation, warranty or indemnity by
two or more parties (including where two or more persons are included in the same defined
term) binds them jointly and severally;
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Benefits jointly and severally - any agreement, representation, warranty or indemnity in
favour of two or more parties (including where two or more persons are included in the
same defined term) is for the benefit of them jointly and severally;
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Business Day - if a day on or by which an obligation must be performed or an event must
occur is not a Business Day, the obligation must be performed or the event must occur on
or by the next Business Day;
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No Disadvantage - a provision of this Head Agreement will not be construed to the
disadvantage of a party solely on the basis that it proposed that provision.
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Order of precedence
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4.3
This Head Agreement will be interpreted in accordance with the following order of priority:
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a) The terms of this Head Agreement excluding any Schedules;
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b) Service Catalogue;
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c)
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d) Documents incorporated by reference.
the other Schedules attached to this Head Agreement ; and
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Conflict of Interest
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5.1
The Provider warrants that, at the date of execution of this Head Agreement, no conflict of
interest exists or is likely to arise in the performance of its obligations under the Head
Agreement.
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5.2
If a conflict of interest arises, the Provider must notify Finance and any Customer
immediately. Finance and any Customer may decide at its absolute discretion, without
limiting its other rights under this Head Agreement and any Contract that the Provider may
continue to provide the Services under this Head Agreement and any Contract.
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Head Agreement Term
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6.1
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Extensions
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6.2
Term of the Head Agreement
This Head Agreement begins on the Date of this Head Agreement and continues until
30 September 2014 (Initial Term) unless terminated in accordance with the terms of this
Head Agreement.
Finance may extend the Initial Term by three further periods of 12 months each on the
terms and conditions then in effect, by giving written Notice to the Provider. Such Notice
must be provided:
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a) at least three (3) months before the end of the current Head Agreement Term; or
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b) within another period agreed in writing between the Parties.
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Any extension in accordance with this clause 6.2 takes effect from the end of the then
current Head Agreement period.
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7.1
The Provider’s AFI has been accepted by Finance on the basis of the claims made by the
Provider in that AFI, which forms part of this Head Agreement.
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7.2
The Provider warrants the veracity of the information (including any claims) provided:
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Reliance on Claims made in the Application for Inclusion
a) in the AFI; and
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b) subsequently in connection to their ongoing participation on the MUL,
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and acknowledge that Customers specifically rely on this information whenever purchasing
Services from the MUL.
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7.3
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8.1
Notwithstanding any other provision in this Head Agreement, Finance may remove the
Provider from the MUL, and terminate this Head Agreement in accordance with clause 19,
if it is found that the Provider provided false or misleading information.
Scope of Head Agreement
This Head Agreement does not:
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a) oblige Finance or a Customer to acquire any Services, or any particular quantity of
Services, from the Provider; or
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b) prevent Finance or a Customer from obtaining Services that are the same as, or
similar to, the Services from other providers.
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Service Catalogue
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9.1
The Services which the Provider offers to supply to a Customer are set out in the Service
Catalogue.
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9.2
If the Provider intends to supply to the Customer a service that is not in the Service
Catalogue, the Provider must amend the Service Catalogue to include that service before it
supplies the Service to the Customer.
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9.3
The Provider agrees to negotiate in good faith with Finance and the Customer to determine
a price for the new Service.
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10.1 The Service Catalogue may be amended or replaced by the Provider, subject to Finance’s
published timetable and approval. The timetable will be published on Finance’s website
[insert hyperlink]
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10.2 Finance will not withhold approval for amending or replacing the Service Catalogue if the
amendment or replacement relates only to removal of existing Services in the Service
Catalogue.
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10.3 If Finance approves the amended Service Catalogue, Finance will publish the amended
Service Catalogue on its website [insert hyperlink] and the amended Service Catalogue
takes effect on the date of publication.
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11.1 The Provider warrants that:
Procedures for amending or replacing the Service Catalogue
Warranties
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a) it has the right to supply the Services;
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b) it has and will maintain the requisite skills, capabilities and experience to provide the
Services;
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c)
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d) the Services will be performed in accordance with the terms of the Contract;
the Services will not infringe the Intellectual Property of a third party;
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e) the Services will be performed in accordance with the Service Levels; and
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f)
the Services will comply with such other warranties and Special Conditions set out in
the Contract.
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Formation of Contracts
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Placing Work Orders and formation of Contracts
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12.1 A Customer may at any time issue a Work Order for the provision of Services.
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12.2 The Provider must notify the Customer within seven (7) days of receipt of the Work Order
whether it has the capability and capacity to provide the Services as stipulated in the Work
Order. If the Provider can provide the Services, the Provider must promptly execute the
completed Work Order to create a separate Contract between the Provider and the
Customer.
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Negotiation of Charges
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12.3 The Provider must ensure that the Charges in a Contract are based on charges that do not
exceed the applicable charges specified in the Service Catalogue. The Parties to a
Contract may negotiate Charges lower than those set out in the Service Catalogue but the
Charges must not be higher than those charges.
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Term of a Contract
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12.4 Each Contract will take effect from the Commencement Date and continues for the Term
specified in the Contract, unless terminated in accordance with the terms of the Contract.
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12.5 The maximum term of a Contract must not exceed 12 months.
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12.6 If the Head Agreement is terminated or expires while a Contract is in force, the Contract
remains in force until the Contract expires or is terminated in accordance with its terms.
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Terms of a Contract
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12.7 The terms of each Contract will be:
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a) the terms of the Head Agreement as relevant;
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b) the Contract Terms;
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c)
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d) any other Document specified in the Work Order as being part of, incorporated into, or
otherwise applicable to, the Work Order (including relevant Annexures and
Schedules);
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and interpreted in that order of priority.
the executed Work Order including any annexure;
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Relationship
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13.1 This Head Agreement does not create a relationship of employment, agency or partnership
between the Parties or their Personnel.
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13.2 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
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Confidentiality
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14.1 The Provider agrees not to disclose to any person, other than the Commonwealth or
Customer, any Confidential Information relating to this Head Agreement, Contract or the
Services, without prior written approval of Finance or Customer.
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14.2 The obligation in clause 14.1 will not be breached where the Provider is required by law or
a Stock Exchange to disclose the relevant information, or where the Confidential
Information is so designated in a Work Order by the Provider.
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14.3 At any time, Finance or a Customer may require the Provider to arrange for its employees,
agents or subcontractors to give a written undertaking relating to non-disclosure of
Confidential Information in the form acceptable to Finance or the Customer.
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14.4 Finance and the Customer are not bound to keep any information in connection with this
Head Agreement or a Contract confidential except to the extent it has agreed in writing to
keep specified information confidential, including Confidential Information so designated by
the Provider in a Work Order. Finance or the Customer will not be in breach of any
confidential agreement where Finance or the Customer is required by Parliament or at law
to disclose the information.
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15.1 The Provider agrees to comply and ensure that its officers, employees, agents and
subcontractors comply with the Privacy Act 1988 (Cth) and do or refrain from doing
anything required to ensure that Finance and Customers are able to comply with its
obligations under that Act.
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16.1 The Provider agrees to give Finance, Customers, or nominees, all assistance reasonably
requested for any purpose associated with this Head Agreement or any Contract, or any
review of the Provider’s performance under this Head Agreement or any Contract. This
will include, but is not limited to, access to premises, material and personnel associated
with the Services and this Head Agreement or any Contract.
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17.1 The Provider must maintain proper business and accounting records relating to this Head
Agreement and the Services provided under any Contracts, and allow Finance, Customers
or authorised representatives to inspect those records when requested. The Provider will
provide any assistance and information required should the Australian National Audit
Office wish to conduct an audit of the Provider’s accounts and records.
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18.1 For any dispute arising under this Head Agreement;
Privacy
Access to Provider’s Premises, Materials and Personnel
Record Keeping
Dispute Resolution
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a) the Parties will try to settle the dispute by negotiation;
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b) if unresolved, the party claiming that there is a dispute will give the other Party a notice
setting out the details of the dispute;
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c)
within seven (7) days of the notice, each Party will nominate a senior representative,
not having prior involvement in the dispute;
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d) the senior representative will try to settle the dispute by negotiation; and
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e) failing settlement within a further 14 days, either party may take other action to resolve
the dispute.
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18.2 Each Party will bear its own costs for dispute resolution.
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18.3 Despite the existence of a dispute, the Provider will (unless requested by Finance not to do
so) continue its performance under this Head Agreement.
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18.4 The procedure for dispute resolution does not apply to action relating to termination or to
legal proceedings for urgent interlocutory relief.
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Monthly Report
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19.1 By the 5th day of every calendar month, the Provider must provide Finance with a monthly
report (Report). The Report must be in the format set out in Attachment [insert number]
and must contain the following information:
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Reporting Requirements
a)
For each Contract that the Provider has entered into in the previous month:
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i.
a copy of the Work Order;
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ii.
the Work Order ID number;
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iii.
total value of the Contract;
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iv.
the subcontractors that will be used; and
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b)
invoices the Provider issued in the previous month, identifying the Contract each
invoice relates to.
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Notifiable Events
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19.2 The Provider must notify Finance immediately if any of the following events occurs:
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a)
the Provider being a corporation, there is any change in the direct or indirect beneficial
ownership or control of the Provider;
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b)
the Provider disposes of the whole or any part of its assets, operations or business
other than in the ordinary course of business;
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c)
the Provider ceases to carry on business;
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d)
the Provider ceases to be able to pay its debts as they become due;
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e)
the Provider being a corporation enters into liquidation or has a controller or managing
controller or liquidator or administrator appointed;
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f) the Provider being a natural person is declared bankrupt or assigns his or her estate for
the benefit of creditors;
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g)
where the Provider is a partnership, any step is taken to dissolve that partnership; or
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h)
a change in subcontractors for a Contract.
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Data on Request
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19.3 If requested by Finance, the Provider must use its best endeavours to provide relevant
data in an appropriate format to assist Finance to identify savings made by the
Commonwealth under the MUL.
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20
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Termination for Default and Termination for Convenience
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20.1 Finance may terminate this Head Agreement in whole or in part:
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Termination
a) if the Provider:
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i.
breaches a material provision of this Head Agreement, where that breach is not
capable of remedy;
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ii.
breaches any provision of this Head Agreement where that breach is capable of
remedy, and fails to remedy the breach within the period specified by Finance
(which period must be not less than 30 days) in a notice of default issued to the
Provider;
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iii.
is found to have provided false or misleading information to the Commonwealth in
respect to any aspect of their participation on the MUL;
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iv.
fails to comply with the Operational Rules;
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v.
persistently breaches any Contracts;
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vi.
in Finance’s reasonable opinion , is no longer able to satisfy the Conditions of
Participation;
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vii.
in Finance’s reasonable opinion, no longer has the capacity and capability to
provide the Services in accordance with this Head Agreement;
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viii.
is unable to pay all its debts when they become due;
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ix.
if incorporated – has a liquidator, administrator or equivalent appointment under
legislation other than the Corporations Act 2001 appointed to it; or
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x.
if an individual – become bankrupt or enters into an arrangement under Part IX or
Part X of the Bankruptcy Act 1966.
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b) for convenience, acting reasonably.
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20.2 Where this Head Agreement is terminated under clause 20.1 the Provider is not entitled to
compensation.
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Resignation from the MUL
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20.3 The Provider may terminate this Head Agreement by resigning from the MUL on provision
of 30 days prior notice to Finance.
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21.1 If the Head Agreement is terminated under clause 20.1 or the Provider resigned from the
MUL under clause 20.3, Finance will promptly remove the Provider from the MUL.
Effect of Termination or Resignation
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22
Entire Agreement and Severability
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22.1 This Head Agreement constitutes the entire agreement between the Parties and
supersedes all prior representations, agreements, statements and undertakings, whether
verbal or in writing.
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22.2 If any provision or part of a provision of this Head Agreement is held to be illegal,
unenforceable or otherwise invalid, that provision or part will be deemed to be severed
from this Head Agreement and the remainder of this Head Agreement will continue in
effect.
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23.1 This Head Agreement may be executed in counterparts. All executed counterparts
constitute one document.
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24.1 This Head Agreement shall not be varied except by agreement in writing signed by
Finance and the Provider.
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25
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25.1 The Provider may only assign its rights or novate its rights and obligations under this Head
Agreement or a Contract with the written prior consent of Finance or the Customer as
relevant.
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26.1 If a Party does not exercise (or delays in exercising) any of its rights, that failure or delay
does not operate as a waiver of those rights.
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27.1 Clauses 5, 14, 15, 16 and 17 survive termination or expiry of this Head Agreement.
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28.1 The laws of the Australian Capital Territory apply to this Head Agreement.
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28.2 The laws of the State or Territory stipulated in the Work Order apply to the Contract.
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29.1 The Provider must comply, and as far as practicable must ensure its subcontractors
comply with all relevant requirements of the Fair Work Principles, the Fair Work Principles
User Guide and the Work, Health and Safety Act 2011.
Counterparts
Variation of this Head Agreement
Assignment and Novation
Waiver
Survival
Applicable Law
Fair Work Principles and Work, Health and Safety Act
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30.1 The Provider must not destroy, transfer, or permit the transfer of, custody or the ownership
of any Commonwealth record (as defined in the Archives Act 1983 (Cth)) without the prior
written consent of the Customer.
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31.1 The Provider acknowledges that the giving of false or misleading information to the
Commonwealth is a serious offence under section 137.1 of the schedule to the Criminal
Code Act 1995. The Provider must ensure that any subcontractor engaged in connection
with a Contract acknowledges the information contained in this clause.
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32.1 Where the Customer has received a freedom of information request for access to a
document created by, or in the possession of the Provider or its subcontractors, that
relates to the Contract and is required to be provided under the Freedom of Information Act
1982 (Cth), the Provider must promptly provide the document to the Customer, on request,
at no cost.
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33.1 The Provider must notify Finance immediately on becoming aware of: any non-compliance
by the Provider or its Personnel with the Equal Opportunity for Women in the Workplace
Act 1999 (Cth).
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The Provider agrees to comply with any Laws applicable to its performance of this Head
Agreement or a Contract.
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35.1 Any notice or communication under this Head Agreement (including the issuance and
acceptance of a Work Order) will be effective if it is in writing from one Authorised
Representative and delivered to the other Authorised Representative, at the postal
address, or email address, or facsimile number.
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35.2 Finance’s Authorised Representative and contact details are:
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Customer Records requirements
Criminal Code Acknowledgement
Freedom of Information
Equal Opportunity for Women in the Workplace Act 1999 (Cth)
Compliance with Laws
Notices
[insert details]
35.3 The Provider’s Authorised Representative and contact details are:
[insert details]
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Signing page
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EXECUTED as a Deed
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Signed, sealed and delivered for and on
behalf of the Commonwealth of Australia
as represented by the Department of
Finance and Deregulation ABN
61 970 632 495 by its duly authorised
delegate in the presence of


Signature of witness
Signature of delegate
Name of witness (print)
Name of delegate (print)
Position of delegate (print)
ON: [insert date]
Signed, sealed and delivered by [insert
name of company]
ABN: [insert]
in accordance with Section 127 of the
Corporations Act 2001 in the presence of

Signature of director

Signature of director/company secretary
(Please delete as applicable)
Name of director (print)
Name of director/company secretary (print)
ON: [insert date]
ON: [insert date]
442
443
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DCaaS Project Head Agreement v4.2 – 14 June 2012
444
445
Schedule 1 Service Catalogue
[To be annexed]
P a g e 14
DCaaS Project Head Agreement v4.2 – 14 June 2012
Schedule 2 Work Order
In accordance with the Head Agreement (No. ___________________) between the
Commonwealth of Australia represented by the Department of Finance and Deregulation
and [insert Provider's name] (Provider), the Customer places this Work Order for the
provision of Services specified below in accordance with the terms and conditions
described in the Head Agreement.
Title of task
PO NUMBER
Provider
[Insert Provider's details]
Provider’s Contract
Manager (clause 0)
[insert name of Provider’s Contract Manager]
Provider’s Contract
Manager contact details
(clause 0)
[insert contact details of Provider’s Contract Manager]
Customer
[Insert if Contracting Agency details]
Customer’s Contract
Manager (clause 0)
[insert name of Customer’s Contract Manager]
Customer’s Contract
Manager contact details
(clause 0)
[insert contact details of Customer’s Contract Manager]
Commencement Date
(clause 12.4)
Term (clause 12.4)
Specified Personnel
(clause 0)
[insert names of Provider’s Specified Personnel and the roles or
tasks that each Specified Personnel must perform]
Charges (Clause 4.1)
[insert charges to be paid by the Customer]
Liability Cap (Clause 9)
Applicable Law (Clause
28.2 Head Agreement)
Intellectual Property
(Clause 7)
[leave blank if default position is acceptable]
Confidential Information
(Clause 14 Head
Agreement)
[Insert any information designated by Provider as confidential]
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DCaaS Project Head Agreement v4.2 – 14 June 2012
Details of any Services to be supplied including any specifications are specified in
Annexure 1.
Special Conditions are attached at Annexure 2.
Service Levels for the Services are attached at Annexure 3.
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DCaaS Project Head Agreement v4.2 – 14 June 2012
Signing page for Contract
EXECUTED as a contract
Signed for and on behalf of the
Commonwealth of Australia as
represented by the [insert name and ABN
of Customer] by its duly authorised
delegate in the presence of


Signature of witness
Signature of delegate
Name of witness (print)
Name of delegate (print)
Position of delegate (print)
ON: [insert date]
Executed by [insert name of company]
ABN: [insert]
in accordance with Section 127 of the
Corporations Act 2001 in the presence of

Signature of director

Signature of director/company secretary
(Please delete as applicable)
Name of director (print)
Name of director/company secretary (print)
ON: [insert date]
ON: [insert date]
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DCaaS Project Head Agreement v4.2 – 14 June 2012
5.2
Schedule 3 Contract Terms
Services
1.1
The Provider must provide the Services:
Subcontracting
a) specified in the Work Order; and
b) to the standard that would be expected of an
experienced and professional supplier of similar
services and any other standard specified in the
Work Order.
6.1
Subcontracting the whole or part of the Provider’s
obligations under the Contract will not relieve the
Provider from any of its obligations under the Contract.
6.2
Any subcontracting of the Provider’s obligations must
be approved in advance by the Customer in writing.
Approvals and Compliance
2.1
The Provider must obtain and maintain any licences or
other approvals required for the lawful provision of the
Services. The Provider must comply with and ensure
its officers, employees, agents and subcontractors
comply with the laws from time to time in force in the
State, Territory or other jurisdiction in which any part of
the Contract is to be carried out and all Commonwealth
laws and policies relevant to the Services.
Intellectual Property
7.1
The ownership model and licensing arrangement of the
intellectual property rights in the Material are the mode
and arrangement set out in the Work Order. If no
ownership and arrangement are set out in the Work
Order, clause 7.2 applies.
7.2
Ownership of the intellectual property rights in the
Material vest in the Provider. The Provider grants the
Customer a non-exclusive, irrevocable, perpetual,
worldwide, fee-free licence (including a right to
sublicense) to use, modify, adapt and publish the
Material and any adaptation of the Material for any
purpose other than commercial exploitation, to the
extent that material embodies the Provider’s Intellectual
Property Rights.
Warranties
3.1
3.2
Where the Provider provides products or services
supplied by a third party as part of the Services, the
Provider assigns to the Customer, to the extent
permitted by Law, the benefits of the warranties given
by the third party. The assignment of third party
warranties to the Customer does not in any way relieve
the Provider from the warranties by the Provider.
When advised by the Customer of an error or a defect
in the Services, the Provider will promptly do all that is
required to ensure the Services meet the requirements
of the Contract.
Indemnity
8.1
Access to Customer’s Site and
protecting the Customer’s property
4.1
4.2
4.3
When accessing the Customer’s place, area or facility,
the Provider must comply with any security and safety
requirements notified to the Provider by the Customer
or of which the Provider is, or should reasonably be
aware. The Provider must ensure that its officers,
employees, agents and subcontractors are aware of,
and comply with, such security and safety
requirements.
The Provider, when using Customer provided premises
or facilities, comply with all reasonable directions of the
Customer.
The Provider must ensure that any material and
property (including security-related devices and
clearances) provided by the Customer for the purposes
of the Contract is protected at all times from
unauthorised access, use by a third party, misuse,
damage and destruction and returned as directed by
the Customer.
Specified Personnel
5.1
At the Customer’s request, the Provider, at no
additional cost to the Customer, must promptly replace
any Specified Personnel that the Customer reasonably
considers should be replaced with personnel
acceptable to the Customer.
The Provider indemnifies the Customer, its officers,
employees and contractors against any liability, loss,
damage, cost (including the cost of any settlement and
legal costs and expenses on a solicitor and own client
basis), compensation or expense arising out of or in
any way in connection with:
a)
a default or any unlawful, wilful or negligent act or
omission on the part of the Provider, its officers,
employees, agents or subcontractors; or
c)
any action, claim, dispute, suit or proceeding
brought by any third party in respect of any use,
infringement or alleged infringement of that third
party’s Intellectual Property Rights or Moral
Rights;
in connection with the Services.
8.2
The Provider’s liability to indemnify the Customer under
clause 8.1 is reduced to the extent that any wilful
default or unlawful or negligent act or omission of the
Customer its officers employees or contractors
contributed to the liability, loss, damage, cost,
compensation or expense.
8.3
The Customer holds the benefit of this indemnity on
trust for its officers, employees and contractors.
Liability
9.1
The liability of each party arising out of or in connection
with the Contract (including under any indemnity) is,
subject to clause 9.2, limited to the amounts specified
in the Work Order, or if no amount is specified in the
Work Order, the total Charges payable under the
Contract.
9.2
Any limit on the liability under clause 9.1 does not apply
in relation to liability relating to:
The Provider must ensure that the Specified Personnel
provide the Services and are not replaced without the
prior consent of the Customer.
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DCaaS Project Head Agreement v4.2 – 14 June 2012
a) personal injury (including sickness and death);
b) loss, or damage to, tangible property;
Invoices
13.1
c) an infringement of Intellectual Property Rights; or
a) it is correctly addressed and calculated in
accordance with the Contract;
d) a breach of any statute or any wilfully wrong act or
omission including, in the case of the Provider,
any act or omission that constitutes repudiation of
the Contract.
9.3
9.4
b) it relates only to Services that have been accepted
by the Customer in accordance with the terms of
the Contract;
The limitation of liability in clause 9.1 applies in respect
of each single occurrence or a series of related
occurrences arising from a single cause.
c) it includes any purchase order number, and the
name and phone number of the Customer’s
Contract Manager; and
The liability of a party (Party A) for any losses incurred
by another party (Party B) will be reduced
proportionately to the extent that:
a) any negligent act or omission of Party B (or of its
subcontractors or personnel); or
d) it is a valid tax invoice in accordance with the GST
Act.
13.2
If the Provider owes any amount to the Customer in
connection with the Contract, the Customer may set off
that amount, or part of it, against its obligations to pay
any correctly rendered invoice.
13.3
Approval and payment of an amount of an invoice is not
evidence of the value of the obligations performed by
the Provider, an admission of liability or evidence the
obligations under the Contract have been completed
satisfactorily, but is payment on account only.
13.4
The Provider must promptly provide to the Customer
such supporting documentation and other evidence
reasonably required by the Customer to substantiate
performance of the Contract by the Provider.
13.5
The Customer will pay the amounts owed by it for the
Services under the Contract on receipt of a correctly
rendered invoice no later than 30 days of the date of
the invoice.
13.6
If the Customer fails to pay on a correctly rendered
invoice within 30 days of receipt and the Provider is a
Small Business, the Provider may submit a separate
invoice for payment of simple interest on the unpaid
amount at the General Interest Charge Rate calculated
in respect of each day from the day after the amount
was due, up to and including the day that payment is
made, provided the interest payable exceeds $10.
b) any failure by Party B to comply with its obligations
and responsibilities under the Contract,
9.5
contributed to those losses, regardless of whether legal
proceedings are brought by Party A for negligence or
breach of contract.
Insurance
10.1
The Provider must obtain and maintain such insurances
and on such terms and conditions as a prudent
supplier, providing services similar to the Services,
would procure and maintain and if requested, must
provide the Customer with evidence of the insurances
remain in force.
Acceptance of Services
11.1
The Customer may reject the Services within 14 days
after delivery. If the Customer does not notify the
Provider of the rejection within the 14 day period, the
Customer will be taken to have accepted the Services
on the expiry of the 14 day period. The Customer may
reject the Services where the Services do not comply
with the requirements of the Contract. If the Customer
rejects the Services the Customer may:
a)
b)
c)
11.2
require the Provider to modify the Services, within
a period determined by the Customer, at the
Provider’s cost, so that the Services meet the
requirements of the Contract;
require the Provider to, at its own cost, redeliver
the Services which meet the requirements of the
Contract, within a period determined by the
Customer; and
terminate the Contract in accordance with clause
15 of the Contract.
Modified or redelivered Services are subject to
acceptance under this clause 0. The Provider will
refund all payments related to the rejected Services
unless modified or redelivered Services are accepted
by the Customer.
Charges
12.1
The Charges are inclusive of all GST and all taxes,
duties (including any customs duty) and government
charges imposed or levied in Australia or overseas.
The Provider must submit a correctly rendered invoice
to the Customer. An invoice is correctly rendered if:
Dispute Resolution
14.1
For any dispute arising under the Contract;
a)
the Parties will try to settle the dispute by
negotiation;
b)
if unresolved, the party claiming that there is a
dispute will refer the dispute to Finance, providing
a notice setting out the details of the dispute
c)
Finance will try to settle the dispute by facilitating
negotiations between the parties; and
d)
failing settlement within a further 14 days after
referral to Finance, the parties may agree to refer
the dispute to mediation or some alternative
dispute resolution procedure;
e)
if the dispute or difference is not settled within 30
days of the submission to mediation or some
other form of alternative dispute resolution
procedure (unless such period is extended by
agreement of the parties), it can be submitted to
arbitration in accordance with, and subject to, The
Institute of Arbitrators & Mediators Australia
Rules for the Conduct of Commercial Arbitrations.
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DCaaS Project Head Agreement v4.2 – 14 June 2012
14.2
Each Party will bear its own costs for dispute resolution.
The parties to the dispute must equally pay the costs of
any mediator or arbitrator.
14.3
Despite the existence of a dispute, the Provider will
(unless requested the Customer not to do so) continue
its performance under the Contract.
14.4
The procedure for dispute resolution does not apply to
action relating to termination or to legal proceedings for
urgent interlocutory relief.
Unforeseen Events
15.1
Occurrence of unforeseen event
A party (Affected Party) is excused from performing
its obligations under the Contract to the extent it is
prevented by circumstances beyond its reasonable
control (other than lack of funds for any reason or
any strike, lockout and labour disputes in respect of
the Contractor only), including but not limited to acts
of God, natural disasters, acts of war, riots and
strikes outside that party's organisation.
15.2
Notice of unforeseen event
When the circumstances described in clause 16.1
arise or are reasonably perceived by the Affected
Party as an imminent possibility, the Affected Party
must give notice of those circumstances to the other
party as soon as possible, identifying the effect they
will have on its performance. An Affected Party must
make all reasonable efforts to minimise the effects of
such circumstances on the performance of the
Contract.
15.3
16.2
15.4
persistently breaches any Contracts;
d)
is found to have provided false or misleading
information to the Commonwealth in respect to
any aspect of their participation on the MUL;
e)
fails to comply with the Operational Rules;
f)
persistently breaches any Contracts;
g)
is removed from the MUL;
h)
is unable to pay all its debts when they become
due;
i)
if incorporated – has a liquidator, administrator or
equivalent appointment under legislation other
than the Corporations Act 2001 appointed to it; or
j)
if an individual – become bankrupt or enters into
an arrangement under Part IX or Part X of the
Bankruptcy Act 1966.
Where this Contract is terminated under clause 16.1 0,
the Provider is not entitled to compensation.
In addition to any other rights it has under the Contract,
the Customer, acting in good faith, may at any time
terminate the Contract or reduce the scope of the
Services by notifying the Provider in writing. If the
Customer issues such a notice, the Supplier must stop
or reduce work in accordance with the notice; comply
with any directions given by the Customer; and mitigate
all loss, costs (including the costs of its compliance with
any directions) and expenses in connection with the
termination or reduction in scope.
16.4
Where the Contract is terminated under this clause
16.3, the Customer will be liable for payments to the
Provider only for Services accepted in accordance with
clause 0, before the effective date of termination (to a
maximum of the total Charges less any payments
already made), and any reasonable costs incurred by
the Provider, limited an amount not exceeding the
preceding month’s Charges from the date of
termination, that are directly attributable to the
termination, if the Provider substantiates these amounts
to the satisfaction of the Customer.
16.5
The Provider will be entitled to profits for the proportion
of the Services accepted before the effective date of
termination but will not be entitled to profit anticipated
on any part of the Contract that is terminated or subject
to a reduction in scope.
If this Contract is terminated under clause 16.3:
b) where the Provider is the Affected Party, it will be
entitled to payment for Services accepted or
work performed prior to the date of intervention
of the circumstances described in clause 16.1.
Termination
c)
16.3
Consequences of termination
a) each party will bear its own costs and neither
party will incur further liability to the other; and
breaches any provision of the Contract where
that breach is capable of remedy and fails to
remedy the breach within the period specified by
the Customer (which period must be not less than
14 days) in a notice of default issued to the
Provider;
Termination for Convenience
Termination
If non-performance or diminished performance by the
Affected Party due to the circumstances under
clause 16.1 continues for a period of more than 14
consecutive days or other period as specified in the
Work Order, the other party may terminate the
Contract immediately by giving the Affected Party
written notice.
b)
Variation of Contract
17.1
The Contract shall not be varied except by agreement
in writing signed by the Customer and the Provider.
Termination by the Customer for Default
16.1
The Customer may terminate this Contract in whole or
in part and exercise any of its other legal rights if the
Provider:
a)
Survival
18.1
Clauses 0, 0, 0 and 0 of the Contract Terms survive
termination or expiry of the Contract.
breaches a material provision of the Contract,
where that breach is not capable of remedy;
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DCaaS Project Head Agreement v4.2 – 14 June 2012
Knowledge Transfer
19.1
The Provider must provide the following assistance to
the Customer on termination or expiration of the
Contract:
a)
transferring or providing access to the Customer
to all information stored by whatever means held
by the Provider or under the control of the
Provider in connection with the Contract; and
b)
making Specified Personnel and other personnel
available for discussions with the Customer as
may be required. The time, length and subject of
these discussions will be at the sole discretion of
the Customer, provided that any matter discussed
is not considered to reveal any 'Commercial-inConfidence' information of the Provider.
Notices
20.1
Any Notice or communication under the Contract will be
effective if it is in writing from one Contract Manager
and delivered to the other Contract Manager, at the
postal address, or email address or facsimile number
set out in the Work Order.
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DCaaS Project Head Agreement v4.2 – 14 June 2012