DRAFT
Head Agreement
for
Whole-of-Government Cloud Deliverables Panel
Commonwealth of Australia represented by the Department of
Finance
and
[name of Contractor]
Table of Contents
1
Operative Provisions ............................................................................................................... 5
1.1
Interpretations ............................................................................................................. 5
2
Head Agreement ....................................................................................................................... 6
2.1
Operation of this Head Agreement ............................................................................ 6
2.2
Head Agreement Term ................................................................................................ 6
2.3
Extensions of Head Agreement Term ....................................................................... 6
3
Role of Finance ......................................................................................................................... 6
4
Priority of Head Agreement documents ................................................................................ 7
5
Relationship .............................................................................................................................. 7
5.1
General obligations of the parties ............................................................................. 7
5.2
Limitation of relationship ........................................................................................... 8
Part 2 – Provision of Deliverables ....................................................................................................... 8
6
Orders for Deliverables............................................................................................................ 8
6.1
No Assurance of Orders for Deliverables ................................................................. 8
6.2
Request for Quote ....................................................................................................... 8
6.3
Contract ........................................................................................................................ 8
6.4
Prohibited charging..................................................................................................... 8
7
Deliverables .............................................................................................................................. 9
7.1
Contractor to provide Deliverables ........................................................................... 9
7.2
General obligations ..................................................................................................... 9
7.3
Title to Deliverables..................................................................................................... 9
7.4
Obligations regarding development or design Deliverables .................................. 9
7.5
Assistance by the Customer in identifying Problems ............................................. 9
8
Rights in Agency Material ..................................................................................................... 10
8.1
No obligation to provide Customer Material .......................................................... 10
8.2
Use of Agency Material ............................................................................................. 10
8.3
Title to Agency Material remains with the Agency ................................................ 10
8.4
Disclaimers ................................................................................................................ 10
8.5
Return and destruction of Agency Material ............................................................ 10
9
Disengagement and Transition Out ..................................................................................... 10
10
Contractor warranties ............................................................................................................ 11
11
Performance assessment and management ....................................................................... 11
11.1
Performance management framework in Statement of Deliverables .................. 11
11.2
Assessment of Deliverables ..................................................................................... 12
11.3
Non–compliant Deliverables .................................................................................... 12
12
Key Service Partners ............................................................................................................. 12
Part 3 - Financial provisions .............................................................................................................. 13
13
Payment for Deliverables ...................................................................................................... 13
13.1
Obligation to pay charges ........................................................................................ 13
13.2
Interest ........................................................................................................................ 13
13.3
Correct rendering of invoices .................................................................................. 14
13.4
Contractor to provide invoice .................................................................................. 14
13.5
The Customer’s right to defer or withhold payment .............................................. 14
13.6
Incorrect invoices, under/over payment ................................................................. 14
14
GST .......................................................................................................................................... 15
14.1
Interpretation ............................................................................................................. 15
14.2
GST ............................................................................................................................. 15
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14.3
Adjustments ............................................................................................................... 15
15
Taxes, duties and government charges ............................................................................... 15
Part 4 – Information management ..................................................................................................... 16
16
Intellectual Property Rights .................................................................................................. 16
16.1
Ownership of Intellectual Property .......................................................................... 16
16.2
Intellectual Property Licence in Background IP ..................................................... 16
16.3
Third Party IP licence ................................................................................................ 16
16.4
Provision of technical data ....................................................................................... 16
16.5
IP Register .................................................................................................................. 16
16.6
Copy of Software and Source Materials.................................................................. 16
17
Confidentiality ........................................................................................................................ 17
17.1
Confidential Information not to be disclosed ......................................................... 17
17.2
Obligations on disclosure ........................................................................................ 17
17.3
Exceptions to obligations ......................................................................................... 17
18
Protective Security ................................................................................................................. 18
19
Protection of personal information ...................................................................................... 19
Part 5 - Head Agreement risk management ...................................................................................... 19
20
Indemnities ............................................................................................................................. 19
21
Limitations of liability ............................................................................................................ 20
22
Conflict of Interest .................................................................................................................. 20
22.1
Notification of a Conflict of Interest ........................................................................ 20
23
Insurance ................................................................................................................................ 21
23.1
As specified in the Contract Obligation to maintain insurance ........................... 21
23.2
Certificates of currency ............................................................................................ 21
23.3
Proof of insurances ................................................................................................... 21
24
Guarantees .............................................................................................................................. 21
25
Reporting ................................................................................................................................ 22
25.1
Reporting to Finance................................................................................................. 22
26
Accounts, books and records ............................................................................................... 23
27
Audit and access .................................................................................................................... 23
27.1
Right to conduct audits ............................................................................................ 23
27.2
Access by Finance or a Customer........................................................................... 23
27.3
Conduct of audit and access ................................................................................... 24
27.4
Costs ........................................................................................................................... 24
27.5
Auditor-General, Information Commissioner, Privacy Commissioner
and Ombudsman ....................................................................................................... 24
27.6
Contractor to comply with Authorised Investigator's requirements ................... 24
27.7
No restriction ............................................................................................................. 25
27.8
No reduction in responsibility.................................................................................. 25
27.9
Subcontractor requirements .................................................................................... 25
27.10 Consequences of audit ............................................................................................. 25
28
Unforeseen events ................................................................................................................. 25
28.1
Occurrence of unforeseen event ............................................................................. 25
28.2
Notice of unforeseen event ...................................................................................... 25
28.3
Unforeseen events affecting Contractor ................................................................. 26
28.4
Obligation to minimise impact ................................................................................. 26
29
Dispute resolution .................................................................................................................. 26
29.1
No arbitration or court proceedings ........................................................................ 26
29.2
Notification ................................................................................................................. 26
29.3
Parties to resolve Dispute ........................................................................................ 26
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29.4
Appointment of expert or mediator ......................................................................... 26
29.5
Expert finding ............................................................................................................ 26
29.6
Role of mediator and obligations of parties ........................................................... 26
29.7
Confidentiality............................................................................................................ 27
29.8
Costs ........................................................................................................................... 27
29.9
Termination of process ............................................................................................. 27
29.10 Breach of this clause ................................................................................................ 27
29.11 Clause does not apply in certain circumstances ................................................... 27
30
Termination ............................................................................................................................. 27
30.1
Termination and reduction for convenience by the Customer ............................. 27
30.2
Termination by the Customer for default ................................................................ 28
30.3
Termination by the Contractor for default .............................................................. 29
30.4
Survival ....................................................................................................................... 29
30.5
Termination does not affect accrued rights ........................................................... 29
Part 6 – Law and Policy ...................................................................................................................... 29
31
Laws and policies ................................................................................................................... 29
31.1
Compliance with Law and policy ............................................................................. 29
31.2
Freedom of information ............................................................................................ 29
31.3
Notified policies ......................................................................................................... 30
31.4
Health and Safety ...................................................................................................... 30
32
Negation of employment, partnership, Agency .................................................................. 30
Part 7 – Miscellaneous........................................................................................................................ 30
33
Head Agreement Administration .......................................................................................... 30
33.1
Representatives ......................................................................................................... 30
33.2
Delegation .................................................................................................................. 32
33.3
E-commerce ............................................................................................................... 32
34
Notices..................................................................................................................................... 32
35
Variations ................................................................................................................................ 33
35.1
Variations to this Head Agreement to be in writing ............................................... 33
35.2
Variation procedure................................................................................................... 33
35.3
Additional Fees .......................................................................................................... 33
36
Service Tool ............................................................................................................................ 33
37
Changes to a Category of a Cloud Deliverables ................................................................. 33
38
Other Miscellaneous .............................................................................................................. 34
38.1
Entire agreement ....................................................................................................... 34
38.2
Approvals and consents ........................................................................................... 34
38.3
Machinery of government change ........................................................................... 34
38.4
Assignment and Novation ........................................................................................ 34
38.5
Counterparts .............................................................................................................. 35
38.6
Further action ............................................................................................................ 35
38.7
Severability ................................................................................................................ 35
38.8
Waiver ......................................................................................................................... 35
38.9
Governing Law and jurisdiction ............................................................................... 35
Schedule 1 – Head Agreement Glossary .......................................................................................... 37
Schedule 2 - Head Agreement Details .............................................................................................. 43
Schedule 3 - Statement of Deliverables ............................................................................................ 44
Schedule 4 - Fees ................................................................................................................................ 51
Schedule 5 – Contract ........................................................................................................................ 52
Schedule 6 - Confidential Information .............................................................................................. 53
Schedule 7 - Head Agreement of Confidentiality ............................................................................. 54
iii
Schedule 8 - Change Order ................................................................................................................ 58
iv
Head Agreement for Whole-of-Government Cloud Deliverables
Panel
Parties
The COMMONWEALTH OF AUSTRALIA as represented by the Department of Finance
(ABN 61 970 632 495) (Finance)
and
[Insert name of CONTRACTOR] (ABN [INSERT Contractor’s ABN]) (Contractor).
Recitals
A
Finance has been tasked by the Commonwealth Government to put in place a panel for the
provision of Cloud deliverables to Agencies.
B
The Contractor acknowledges and agrees that Finance will administer this Head Agreement
for the benefit of all Agencies, including Finance. The Contractor has fully informed itself on all
aspects of the requirements and has offered to enter into this Head Agreement under which
Agencies, and in certain cases Approved Third Party Providers, can enter Contracts for the
provision of Deliverables.
C
The Contractor has represented to Finance in respect of this Head Agreement, and
represents to each Agency and Finance in respect of any Module and Contract, that it has the
ability to provide the Deliverables for each Module to which it has been enrolled under this
Head Agreement.
D
Finance has agreed to enter into this Head Agreement with the Contractor, and the Contractor
has agreed to enter into this Head Agreement with Finance, by which the Contractor offers to
provide Deliverables on the terms and conditions contained in this Head Agreement (and the
module for the relevant Deliverables) and any Contract formed under this Head Agreement.
1
Operative Provisions
1.1 Interpretations
1.1.1
In this Head Agreement, except where the contrary intention is expressed,
the definitions in Schedule 1 apply;
1.1.2
In this Head Agreement, except where the contrary intention is expressed:
the singular includes the plural and vice versa, and a gender includes other genders;
1.1.2.1 another grammatical form of a defined word or expression has a
corresponding meaning;
1.1.2.2 a reference to a document or instrument including any referred to by
a web address includes the document or instrument as novated,
altered, supplemented or replaced including at a new web address
from time to time;
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1.1.2.3 a reference to A$, $A, AUD, dollar or $ is to Australian currency;
1.1.2.4 a reference to time is to the time in the place where the obligation is
to be performed;
1.1.2.5 a reference to a party is to a party to this Head Agreement, and a
reference to a party to a document includes the party's executors,
administrators, successors and permitted assignees and substitutes;
1.1.2.6 a reference to a statute, ordinance, code or other Law includes
regulations and other instruments under it and consolidations,
amendments, re–enactments or replacements of any of them;
1.1.2.7 the meaning of general words is not limited by specific examples and
the word ‘includes’ in any form is not a word of limitation;
1.1.2.8 a rule of construction does not apply to the disadvantage of a party
because the party was responsible for the preparation of this Head
Agreement or any part of it; and
1.1.2.9 if a day on or by which an obligation must be performed is not a
Business Day, the obligation must be performed on or by the next
Business Day.
2
Head Agreement
2.1 Operation of this Head Agreement
This Head Agreement constitutes a standing offer for the Head Agreement Term during which
the Commonwealth may require the Contractor to provide Deliverables to the Commonwealth
for the benefit of any Agency as and when required by the Commonwealth in accordance with
clause 6.
2.2 Head Agreement Term
This Head Agreement commences on the Effective Date and (unless otherwise lawfully
terminated) shall continue in full force and effect until the expiry of the Head Agreement Term.
2.3 Extensions of Head Agreement Term
The parties may agree in writing to extend the Head Agreement Term for up to the further
periods specified in Item 5 of the Head Agreement Details.
3
Role of Finance
Finance's role is to do (either directly or through a representative) each of the following:
3.1.1
administer this Head Agreement, including approving or rejecting any
proposal from the Contractor to vary its Charges set out in 0 and Schedule 4
- Fees;
3.1.2
approve any change to the Standard Contract Terms in Schedule 2 – Head
Agreement Details;
3.1.3
monitor the performance of Contracts (if any) to ensure that Agencies obtain
the benefits to which they are entitled under the Contracts;
3.1.4
collect data from Contractors (including Key Service Providers);
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4
3.1.5
monitor and report on the operation of the Panel, including its operation,
viability and usage; and
3.1.6
look at implementing a service tool with a catalogue function.
Priority of Head Agreement documents
If there is inconsistency between any of the documents forming part of this Head Agreement, those
documents must be interpreted in the following order of priority to the extent of any inconsistency:
5
4.1.1
Head Agreement Terms and Conditions;
4.1.2
Schedules;
4.1.3
any attachments to the Schedules;
4.1.4
Contract; and
4.1.5
other documents mentioned in this Head Agreement that are to be observed
by the Contractor.
Relationship
5.1 General obligations of the parties
5.1.1
Each party must:
5.1.1.1 diligently perform its obligations under this Head Agreement and any
Contract; and
5.1.1.2 work together in a collaborative manner in good faith.
5.1.2
The Contractor must:
5.1.2.1 comply with any reasonable directions given by Finance in respect of
this Head Agreement;
5.1.2.2 provide all reasonable assistance required by Finance provided that
the assistance requested is consistent with the Contractor's
obligations under this Head Agreement;
5.1.2.3 communicate with Agencies in the manner specified in this Head
Agreement and any Contract or as otherwise directed by Finance
from time to time; and
5.1.2.4 is responsible for all aspects of the provision of Deliverables under a
Contract, irrespective of whether it is a reseller or engages Key
Service Providers for its provision of the Deliverables.
5.1.3
If requested by Finance, the Contractor must participate in any forums or
meetings, at the Contractor's own expense, in relation to the operation of this
Head Agreement and any Contract (including forums or meetings with other
Contractors or with Agencies).
5.1.4
The Contractor must clearly identify itself as a contractor when
communicating through telephone, facsimile, email or any other method in
relation to this Head Agreement and in the course of performing a Contract.
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5.2 Limitation of relationship
5.2.1
This Head Agreement does not create a relationship of employment, agency
or partnership between the parties or their respective Personnel.
5.2.2
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.
Part 2 – Provision of Deliverables
6
Orders for Deliverables
6.1 No Assurance of Orders for Deliverables
The Customer does not promise to procure any particular quantity of Deliverables, nor any
Deliverables at all, and the Contractor is not appointed as the sole provider of the
Deliverables to the Customer or any Agency.
6.2 Request for Quote
6.2.1
The Customer may, by issuing to the Contractor a Request for Quote in a
form nominated by Finance, invite the Contractor to submit a Quotation for
those Deliverables.
6.2.2
The Contractor must obtain a Tracking Number from Finance and display this
number in its response to a Quotation.
6.2.3
The Contractor shall provide either a Quotation in writing or a notice declining
the invitation by the date that the Quotation is required as specified in the
Request for Quote. All Fees quoted must not exceed (or be calculated on the
basis of amounts that exceed) the applicable amounts in Schedule 4 unless
the Customer agrees otherwise.
6.2.4
The Customer may accept or reject a Quotation in its absolute discretion.
6.3 Contract
6.3.1
If the Customer delivers a Contract to the Contractor, the Contract –
Schedule 5 is created for the Deliverables from the date on which the
Customer submits the Contract to the Contractor on the terms of this Head
Agreement and the Contract.
6.3.2
The Customer is not liable to pay any amount for Deliverables performed
unless a Contract has been issued by the Customer for those Deliverables.
6.4 Prohibited charging
6.4.1
The Contractor must not charge Fees or seek any other compensation under
this Head Agreement for the development of Foreground IP if it has
previously charged Fees under this Head Agreement for the development of
the same Foreground IP.
6.4.2
Without prejudice to clause 6.4.1, the Contractor is not entitled to charge
Fees or obtain other compensation under this Head Agreement to develop a
template or Software Deliverable if the Contractor has previously charged
Fees under this Head Agreement to develop the same template or Software
Deliverable. However, the Contractor is entitled to charge Fees for any
8
additional development work required to address the specific requirements of
an Agency that are not met by the template or Deliverable previously
developed.
7
6.4.3
The only Fees that the Contractor may charge or other compensation that it
may seek for Deliverables are as set out in Contracts issued by the
Customer.
6.4.4
Without limiting any other rights the Commonwealth may have for a breach of
clauses 6.4.1, 6.4.2 or 6.4.3, any such moneys paid to the Contractor in
breach of clauses 6.4.1, 6.4.2 or 6.4.3 shall be a debt due to the Customer on
the date paid and shall incur daily simple interest from that date until the date
repaid in full at the general interest rate charge rate determined under section
8AAD of the Taxation Administration Act 1953 (Cth).
Deliverables
7.1 Contractor to provide Deliverables
The Contractor must provide the Deliverables in accordance with the terms of this Head
Agreement at all times from and including the Deliverables Start Date and during the
Deliverables Period.
7.2 General obligations
The Contractor must ensure that the Deliverables:
7.2.1
are provided in accordance with the Statement of Deliverables and Contract;
7.2.2
meet or exceed the Service Levels; and
7.2.3
are provided in accordance with any reasonable directions given by
Finance/Customer from time to time.
7.3 Title to Deliverables
Title to the Material of each Deliverable vests in the Customer on its delivery under this Head
Agreement.
7.4 Obligations regarding development or design Deliverables
7.4.1
When providing development or design Deliverables, templates and
websites, the Contractor must liaise and cooperate with the Customer,
including by performing such tests as the Commonwealth may reasonably
require, ensuring the Deliverables meet the Customer’s requirements.
7.4.2
The Contractor may not use Software that is Foreground IP in a production
environment prior to the Customer approving its use.
7.4.3
The Contractor must observe the relevant Government Standards when
providing the Deliverables.
7.5 Assistance by the Customer in identifying Problems
The Customer may but is not obliged to, assist the Contractor in assessing any Problem by
relaying information to or carrying out instructions from the Contractor. Any such action will be
at the Contractor’s risk.
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8
Rights in Agency Material
8.1 No obligation to provide Customer Material
Except as provided for in the Statement of Deliverables or Contract, the Customer is not
required to provide any Agency Material to the Contractor to assist it to perform the
Deliverables. The Contractor is required to provide all facilities, systems, Software or
information that it may need to provide the Deliverables.
8.2 Use of Agency Material
8.2.1
To the extent that the Contractor needs to use any of the Agency Material, for
the purpose of performing its obligations under this Head Agreement, the
Customer grants to the Contractor a world–wide, royalty–free, non–exclusive,
non–transferable licence (including the right to sublicense) to use, reproduce,
adapt, modify and communicate such Material solely for the purpose of
providing the Deliverables and subject to any restrictions notified by the
Customer.
8.2.2
The Contractor must ensure that Agency Material supplied to it or hosted by it
is used and hosted only for the purposes of performing its obligations under
this Head Agreement and in accordance with any direction by the Customer.
8.3 Title to Agency Material remains with the Agency
Agency Material remains, at all times, the property of the relevant Agency.
8.4 Disclaimers
If the Customer provides the Contractor with Agency Material, the Contractor must not without
the prior written approval of the Customer:
8.4.1
modify that Agency Material other than for the purposes of this Head
Agreement and according to the Statement of Deliverables and Contract; or
8.4.2
destroy, or cause to be destroyed, any Agency Material in the care, custody
or control of the Contractor.
8.5 Return and destruction of Agency Material
The Contractor must:
9
8.5.1
remove all Agency Material from the Cloud that is not required by the
Contractor for the purpose of performing the Contractor's obligations under
this Head Agreement; and
8.5.2
on the Customer’s request promptly return all Agency Material held by it, or
by a Key Service Partner, to the Customer, in a non-proprietary format that is
readily usable by the Customer, or otherwise treat it as directed by the
Customer.
Disengagement and Transition Out
9.1.1
The Contractor must take all actions that are reasonably necessary to ensure
there is an efficient and effective transmission of the Deliverables to the
Customer or its nominee when the Deliverables provision ends under this
Head Agreement, so as to cause minimum disruption to the Deliverables and
minimum inconvenience to the Customer and each affected Agency. Without
prejudice to the generality of that obligation, the Contractor must:
10
9.1.1.1 liaise with the Customer to plan and implement all necessary actions;
9.1.1.2 transfer to the Customer or its nominee all Agency Material in a nonproprietary format that is readily usable by the Customer or its
nominee and sufficient information to allow reading of, searching of,
interpretation and processing of the Material by the Customer or its
nominee; and
9.1.1.3 remove from the Cloud all backed-up versions of the Agency
Material.
9.1.2
The Contractor must provide to Finance such verification that the Customer
or its nominee reasonably requires, verifying the Contractor's performance of
its obligations under clause 9.1.1.
10 Contractor warranties
10.1.1 The Contractor represents and warrants that:
10.1.1.1
the Deliverables are fit for purpose;
10.1.1.2
the use of any Material licensed under this Head Agreement
in accordance with that licence will not infringe any third party's
Intellectual Property Rights;
10.1.1.3
there are no provisions in the Contractor's contracts with its
Key Service Partners that, if observed, would cause the Contractor
not to comply with any requirement under this Head Agreement;
10.1.1.4
the Contractor's contracts with its Key Service Partners
include provisions that will allow Finance to exercise all the rights set
out in this Head Agreement if Key Service Partner cooperation is
required; and
10.1.2 none of its Personnel:
10.1.2.1
have unlawfully entered or remain in Australia; or
10.1.2.2
are working in Australia in breach of their visa conditions.
10.1.3 If, during the duration of this Head Agreement a warranty in clause 10.1.1
becomes inaccurate the Contractor must promptly:
10.1.3.1
10.1.3.2
notify in writing Finance of all details relating to why the
warranty is no longer accurate; and
remedy the defect at the Contractor's cost.
11 Performance assessment and management
11.1 Performance management framework in Statement of Deliverables
The parties will implement and comply with their obligations in the performance management
framework set out in the Statement of Deliverables.
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11.2 Assessment of Deliverables
11.2.1 Finance may assess the Deliverables in accordance with the relevant Service
Levels and generally as specified in the Statement of Deliverables to verify
that the Deliverables have been provided in accordance with the Contractor's
obligations.
11.2.2 The Contractor must:
11.2.2.1
cooperate with any performance assessment conducted by
Finance; and
11.2.2.2
provide to Finance performance reports in accordance with
the requirements of the Statement of Deliverables or as reasonably
requested by Finance
11.3 Non–compliant Deliverables
11.3.1 Finance will notify the Contractor if it assesses the Contractor's performance
of Deliverables as not meeting the Service Levels or other requirements
under this Head Agreement.
11.3.2 The Contractor is not relieved of responsibility for the Deliverables because of
any approval given by Finance under this Head Agreement or an act or
omission of any Key Service Partner.
11.3.3 If the Contractor Representative is not meeting the service levels, the issue
will be escalated within the Contractor’s organisation to the Manger who is
responsible for the Contractor Representative.
11.3.4 Finance reserves the right to suspend the Contractor’s organisation from the
panel for a period of time, determined by Finance, if their performance does
not meet the service levels or other requirements under this Head
Agreement. (30.2)
11.3.5 Finance reserves the right to request a new Contractor Representative or
Account Manager if their performance has not met the service levels or other
requirements under this Head Agreement.
12 Key Service Partners
12.1.1 The Contractor must not enter into a contract during the Head Agreement
Term with a proposed Key Service Partner that was not disclosed to Finance
as a Key Service Partner prior to the Effective Date unless the following
conditions are satisfied:
12.1.1.1
the Contractor must give Finance at least 30 days prior
written notice of the proposed engagement of the Key Service
Partner with details of the purpose of the proposed engagement;
12.1.1.2
the contract must only be entered into after Finance gives its
written approval of the proposed engagement of the Key Service
Partner, which will not be unreasonably withheld; and
12.1.1.3
the Key Service Partner must not be named by the Workplace
Gender Equality Agency as an employer currently not complying with
the Workplace Gender Equality Act 2012 (Cth).
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12.1.2 The Contractor must:
12.1.2.1
ensure that it has written consent of each Key Service Partner
to the disclosure of the Key Service Partner's identity and contract
details as required for government purposes; and
12.1.2.2
if requested by Finance, ensure that any Key Service Partner
that is a subcontractor executes and delivers a Confidentiality
Undertaking in favour of Finance or the nominated Customer.
Part 3 - Financial provisions
13 Payment for Deliverables
13.1 Obligation to pay charges
13.1.1 Subject to this clause 13, the Customer must pay to the Contractor the Fees.
13.1.2 A Fee set out in the Contract is deemed to be payable on a correctly
rendered invoice, 30 days in arrears unless the Customer and Contractor
agree to separate terms
13.2 Interest
13.2.1 This Clause 13.2 only applies where:
13.2.1.1
the value of this Contract is not more than A$1 million (GST
inclusive); and
13.2.1.2
the amount of the interest payable exceeds A$10.
13.2.2 For payments made by the non-corporate Commonwealth entity more than
30 days after the amount became due and payable, the non-corporate
Commonwealth entity must pay the Interest accrued on the payment.
13.2.3 Interest payable under this clause 13.2 will be 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 and payable, up to and including
the day that the non-corporate Commonwealth entity effects payment as
represented by the following formula:
SI =
UA
x
GIC x
D
SI
=
simple interest amount;
UA
=
the unpaid amount;
GIC
=
General Interest Charge Rate daily rate; and
Where:
D
=
the number of days from the day after payment was due up to
and including the day that payment is made.
13.2.4 In this clause 13.2 “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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13.3 Correct rendering of invoices
13.3.1 For the purposes of this clause, an invoice is correctly rendered if:
13.3.1.1
it is correctly addressed and calculated in accordance with
the Contract;
13.3.1.2
it relates only to supplies that have been delivered to the
corporate and non-corporate Commonwealth entities in accordance
with the Contract; and
13.3.1.3
it is a valid tax invoice in accordance with A New Tax System
(Goods and Services Tax) Act 1999 (Cth).
13.3.2 The Contractor must not charge the Customer for any fees, charges or
expenses (including travel and accommodation, document reproduction,
transportation and courier charges, and telecommunications charges) in
addition to the Fees.
13.4 Contractor to provide invoice
The Contractor must provide correctly rendered GST invoices to the Customer that includes
the following details:
13.4.1 Contract number, name of the Customer, a description of the Deliverables
provided for the relevant period or the achievement of the event to which the
invoice relates; and
13.4.2 any further information required by the Contract or reasonably requested by
the Customer.
13.5 The Customer’s right to defer or withhold payment
13.5.1 Subject to clause 13.5.2, the Customer may withhold from any payment due
to the Contractor amounts the Customer deems reasonable or appropriate to
protect it from loss because of any failure by the Contractor, in any material
respect, to perform its obligations under this Head Agreement until such time
as the Customer is satisfied that those obligations have been completed.
13.5.2 The Customer is not entitled to defer, reduce or withhold payment under
clause 13.5.1 to the extent that the non-completion, defect or deficiency in
relation to the Deliverables, or the failure of the Contractor (as the case may
be), is due to an act or omission of the Customer.
13.6 Incorrect invoices, under/over payment
If an invoice is found to have been rendered incorrectly after payment, any underpayment or
overpayment will be recoverable by or from the Contractor, as the case may be, within the
current financial year only, may be offset against any amount subsequently due by the
Customer to the Contractor. The Customer may at its sole discretion require that interest at
the general interest rate charge rate determined under section 8AAD of the Taxation
Administration Act 1953 (Cth) be paid on the overpaid amount until the amount is repaid to
the Customer in full.
14
14 GST
14.1 Interpretation
In this clause 14, a word or expression defined in the A New Tax System (Goods and
Deliverables Tax) Act 1999 (Cth) (GST Act) has the meaning given to it in that Act.
14.2 GST
14.2.1 If a party (Contractor or Key Service Partner) makes a delivery under or in
connection with this Head Agreement in respect of which GST is payable, the
Customer of the Deliverables must pay to the Contractor or Key Service
Partner, an additional amount equal to the GST payable on the Deliverable
(GST Amount).
14.2.2 If a party must reimburse or indemnify another party for a loss, cost or
expense, the amount to be reimbursed or indemnified is first reduced by any
input tax credit the other party is entitled to for the loss, cost or expense, and
then increased in accordance with clause 14.3.1.
14.2.3 If a payment is calculated by reference to or as a specified percentage of
another amount or revenue stream, that payment will be calculated by
reference to or as a specified percentage of the amount or revenue stream
exclusive of GST.
14.3 Adjustments
14.3.1 If the GST payable by a Contractor on any supply made under or in
connection with this Head Agreement varies from the GST Amount paid or
payable by the Customer under clause 14.2.1 such that a further amount of
GST is payable in relation to the supply or a refund or credit of GST is
obtained in relation to the Deliverables, then the Contractor will provide a
corresponding refund or credit to, or will be entitled to receive the amount of
that variation from, the Customer.
14.3.2 Any payment, credit or refund under this clause is deemed to be a payment,
credit or refund of the GST Amount payable under clause 14.2.1.
14.3.3 If an adjustment event occurs in relation to the Deliverables, the Contractor
must issue an adjustment note to the Customer in relation to that supply
within 10 Business Days after becoming aware of the adjustment.
14.3.4 A party need not make a payment for a taxable Deliverable made under or in
connection with this Head Agreement:
14.3.4.1
until it receives a tax invoice for the Deliverables to which the
payment relates; and
14.3.4.2
in the case of a tax invoice issued by the Contractor, the tax
invoice complies with clause 13.4, unless any requirement of that
clause is inconsistent with the GST Act.
15 Taxes, duties and government charges
Except as expressly provided in this Head Agreement all taxes, duties and government
charges imposed or levied in Australia or overseas in connection with this Head Agreement
are to be borne by the Contractor.
15
Part 4 – Information management
16 Intellectual Property Rights
16.1 Ownership of Intellectual Property
16.1.1 Nothing in this Head Agreement affects the ownership of Background IP or
Third Party IP.
16.1.2 Ownership of all Foreground IP vests in the Contractor absolutely upon
creation.
16.2 Intellectual Property Licence in Background IP
The Contractor grants to the Customer a royalty-free, irrevocable, world-wide, non-exclusive
licence for the Head Agreement Term in respect of all Background IP owned or controlled by
the Contractor including the right to sub-licence:
16.2.1 Agency to complete the Deliverables upon termination of this Head
Agreement; and
16.2.2 to remedy defects or omissions in the Deliverables.
16.3 Third Party IP licence
If requested by the Customer, the Contractor shall ensure that the Customer is granted a
licence to exercise all Third Party IP, on the best available commercial terms.
16.4 Provision of technical data
The Contractor must provide with the Deliverables such technical data as may be necessary
to allow the Customer to exercise their Intellectual Property Rights as defined in clause 16.
The Contractor shall ensure that all technical data provided to the Customer will enable a
reasonably skilled person to efficiently and effectively do the things permitted to be done
under clause 16.
16.5 IP Register
The Contractor must:
16.5.1 maintain and update an IP Register in a form reasonably approved by the
Customer; and
16.5.2 within 30 days after the Effective Date and after that at least once in each
period of 12 months during the Head Agreement Term, provide a copy of the
IP Register to the Customer.
16.6 Copy of Software and Source Materials
The Contractor must make available to the Customer and each Agency via an online
repository a downloadable copy of all:
16.6.1 Material permitted to be provided under the contract; and
16.6.2 Software licensed under clause 16.
16
17 Confidentiality
17.1 Confidential Information not to be disclosed
A party must not, without the prior written consent of the other party, disclose any Confidential
Information of the other party to a third party, unless the Confidential Information:
17.1.1 is disclosed only to the extent strictly necessary in order for it to manage and
perform its obligations or to exercise or enforce its rights under this Head
Agreement or to abide by legal obligations;
17.1.2 is disclosed by the Customer to the responsible Minister or a House or a
Committee of the Parliament;
17.1.3 is shared with another Agency or the Agency's advisers, where this serves
the Commonwealth's legitimate interests;
17.1.4 is authorised or required by Law to be disclosed; or
17.1.5 is in the public domain other than as a result of a breach of this clause 17.
17.2 Obligations on disclosure
17.2.1 Where a party discloses Confidential Information to another person:
17.2.1.1
if the disclosure is under clause 17.1.1, the party making the
disclosure must, if required by the other party, obtain from the
recipient a properly executed Confidentiality Undertaking; and
17.2.1.2
if the disclose is under clauses 17.1.2, 17.1.3 or 17.1.4 the
party making the disclosure must inform the recipient of the
confidential nature of the information.
17.2.2 A Confidentiality Undertaking will not be required under clause 17.2.1.1 if the
party making the disclosure confirms to the other party in writing that the
recipient is an individual who is bound by obligations in their employment
contract not to disclose the Confidential Information. The party making the
disclosure must use all reasonable endeavours to enforce those obligations.
17.3 Exceptions to obligations
17.3.1 The obligations of the parties under this clause 17 will not be taken to have
been breached to the extent that Confidential Information:
17.3.1.1
is disclosed by a party to its Personnel solely in order to
comply with obligations, or to exercise rights, under this Contract;
17.3.1.2
is disclosed to a party's internal management Personnel,
solely to enable effective management or auditing of Contract-related
activities;
17.3.1.3
is shared by the Agency within the Agency or to Finance (or
another Agency), if this serves the Commonwealth's or the Agency's
legitimate interests;
17.3.1.4
is disclosed by the Agency to the responsible minister and his
or her advisers;
17
17.3.1.5
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;
17.3.1.6
disclosure is authorised or required by Law, including under
this Contract, under a licence or otherwise, to be disclosed; or
17.3.1.7
is in the public domain otherwise than due to a breach of this
clause 17.
17.4 Announcements
17.4.1 The Contractor must not make a public announcement unless it has
Finance's written agreement if the announcement concerns the Head
Agreement and the Customer's written agreement if the announcement
concerns a Contract, except if the public announcement is required by Law or
a regulatory body (including a relevant stock exchange).
17.4.2 If the Contractor is required by Law or a regulatory body to make a public
announcement in connection with:
17.4.2.1
17.4.2.2
the Head Agreement or any Contract; or
any transaction contemplated by the Head Agreement or a
Contract,
the Contractor must:
17.4.2.3
limit the public announcement to the extent required by the
relevant Law or regulatory body; and
17.4.2.4
to the extent practicable, first consult with and take into
account the reasonable requirements of Finance and the Customer
(as applicable).
17.4.3 Nothing in clauses 17.4.1 to 17.4.2 prohibits Finance or a Customer from
disclosing to Finance Personnel or Customer Personnel, or the Contractor
from disclosing to Contractor Personnel, the fact of the Head Agreement or
any Contract and the subject matter of those agreements, provided that the
confidentiality obligations set out in this clause 17 are complied with.
18 Protective Security
18.1.1 To the extent required by the Customer, the Contractor must, and must
ensure that it’s Key Service Partners and Personnel and to the extent
applicable, the Deliverables, comply with the requirements of the Protective
Security Policy Framework and the Information Security Manual.
18.1.2 The Contractor must inform the Customer, and when required, Finance, by
telephone as soon as possible after it becomes aware of any Security
Incident, and as soon as practicable (and at least within 5 Business Days)
confirm the details by notice in writing. In the event of any Security Incident,
the Contractor must comply with all directions of the Customer to resolve the
incident.
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19 Protection of personal information
19.1.1 This clause 19 applies only where the Contractor deals with Personal
Information when, and for the purpose of, providing the Deliverables. In this
clause 19, 'Personal Information', 'Approved Privacy Code' and 'Australian
Privacy Principles' have the meaning given to those terms in the Privacy Act
1988 (Cth).
19.1.2 The Contractor must:
19.1.2.1
not breach any privacy laws in its collection, use, storage or
disclosure of data;
19.1.2.2
use or disclose Personal Information obtained during the
course of performing this Head Agreement only for the purposes of
this Head Agreement;
19.1.2.3
carry out and discharge the obligations contained in the
Australian Privacy Principles as if it were an Agency under the
Privacy Act 1988 (Cth);
19.1.2.4
not use or disclose Personal Information or engage in an act
or practice that would breach a registered Approved Privacy Code
that is applicable to the Contractor; and
19.1.2.5
assist the Commonwealth to meet its obligations in relation to
Personal Information collected, used or disclosed in connection with
the Deliverables.
Part 5 - Head Agreement risk management
20 Indemnities
20.1.1 The Contractor indemnifies Finance, and their Personnel (Indemnified
Parties) in respect of any claim, action, damage, loss, liability, cost, charge,
expense, outgoing or payment (including legal expenses on a solicitor own
client basis) which any of the Indemnified Parties pays, suffers, incurs or for
which it is liable in connection with:
20.1.1.1
any breach of this Head Agreement by the Contractor;
20.1.1.2
any infringement by the Contractor of the Intellectual Property
Rights of a third party; and
20.1.1.3
any negligent, unlawful, illegal, fraudulent or dishonest act,
error or omission of the Contractor and its Personnel in the provision
of the Deliverables.
20.1.2 The indemnity in clause 20.1.1 will be reduced proportionally to the extent
that the Indemnified Parties caused or contributed to the breach, error or
omission, or improperly and unnecessarily incurred any such claims, actions,
damages, losses, liabilities, costs, charges, expenses, outgoings or
payments.
20.1.3 The Indemnified Parties must take all reasonable steps to mitigate their
losses which may be subject to a claim for payment under clause 20.1.1.
19
20.1.4 Finance may enforce on behalf of its Personnel the indemnity in
clause 20.1.1.
20.1.5 In the event that the Contractor is permitted to handle negotiations or conduct
litigation on behalf of Finance, it must comply at all times with government
policy and obligations relevant to the conduct of the litigation as notified by
Finance.
21 Limitations of liability
21.1.1 The parties agree that the Contractor's maximum liability to Finance and
Customers under each Contract entered into under this Head Agreement is
limited to the amount set out in the applicable Contract.
21.1.2 The limit on liability under clause 21.1.1 does not apply in relation to liability
for:
21.1.2.1
21.1.2.2
21.1.2.3
an infringement of third party Intellectual Property Rights;
a breach of any obligation of confidentiality, security matter or
privacy; or
malicious, unlawful or illegal acts or conduct.
21.1.3 Any breach of statute or any wilfully wrong act or omission including, in the
case of the Contractor, and act or omission that constitutes repudiation of the
Contract.
22 Conflict of Interest
22.1 Notification of a Conflict of Interest
If, during the performance of this Head Agreement or any Contract a Conflict of Interest
arises, or appears likely to arise, the Contractor must:
22.1.1 notify Finance immediately in writing;
22.1.2 make full disclosure of all relevant information relating to the Conflict of
Interest; and
22.1.3 take all steps that Finance reasonably requires the Contractor to take in order
to resolve or otherwise deal with the Conflict of Interest.
20
23 Insurance
23.1 As specified in the Contract Obligation to maintain insurance
23.1.1 The Contractor must have and maintain valid and enforceable insurance
policies to the amounts specified in the Contract:
23.1.1.1
for the Contract Period;
23.1.1.2
property and public liability insurance;
23.1.1.3
either professional indemnity or (if approved by the Customer)
errors and omissions in the amount specified in the Contract Details
per occurrence and in aggregate;
23.1.1.4
valid and enforceable insurance policies for professional
indemnity or (if approved by the Customer) errors and omissions in
the amount specified in the Contract;
23.1.1.5
product liability insurance;
23.1.1.6
workers' compensation as required by Statute;
23.1.1.7
special risks insurance; and
23.1.1.8
any other, or increased, insurance specified in the Order.
23.1.2 for 7 years following the expiry or termination of this Contract, professional
indemnity or errors and omissions insurance.
23.2 Certificates of currency
23.2.1 The Contractor must, on request by the Agency, provide current relevant
confirmation of insurance Documentation from its insurance brokers certifying
that it has insurance as required by this clause 23.
23.3 Proof of insurances
23.3.1 The Contractor must, on request by Finance or the Customer, provide to
Finance or the Customer, within 5 Business Days, proof of the currency of the
required insurances including:
23.3.1.1
an insurance certificate certifying that the insurance
required by this clause 23 is in force; and
23.3.1.2
copies of the policies of insurance or at a minimum, details
of any exclusions and other information about the required
insurances as reasonably requested by Finance or a Customer.
24 Guarantees
24.1.1 If required by Finance, the Contractor must provide Finance within the
timeframe specified by Finance with an executed:
24.1.1.1
Performance Guarantee in the form of Schedule 2 Attachment 1 (Performance Guarantee and Indemnity); and / or
24.1.1.2
Unconditional Financial Undertaking in the form of Schedule 2
- Attachment 2 (Unconditional Financial Undertaking),
21
for the benefit of Finance and any Agency under a Contract.
Note: Finance will manage Performance Guarantees and Unconditional Financial
Undertakings at a Whole of Government level. An Agency may only require the
Contractor to provide a Performance Guarantee and / or Unconditional Financial
Undertaking for a Contract if Finance has provided its prior written approval to the
Agency to do so. Normally all Performance Guarantee and Unconditional Financial
Undertakings will be taken out at the Head Agreement rather than Contract level.
24.1.2 Finance may require the Contractor to increase or reduce the amount of the
Performance Guarantee and Unconditional Financial Undertaking (as
applicable) from time to time, including to reflect the Contractor's enrolment
on, or removal from enrolment from, a Module or entry into of any Contract.
24.1.3 If the Contractor does not comply with any of its obligations under this Head
Agreement or any Contract, Finance may call on either or both the
Performance Guarantee and/or Unconditional Financial Undertaking (at
Finance's absolute discretion) without notice to the Contractor.
24.1.4 If Finance calls on an Unconditional Financial Undertaking under clause
24.1.3, Finance may, by written Notice to the Contractor, require the
Contractor to provide a replacement or additional Unconditional Financial
Undertaking and the Contractor must provide such replacement or additional
Unconditional Financial Undertaking to Finance within 5 Business Days after
the date of the Notice.
24.1.5 All costs incurred in obtaining and maintaining the required security will be
met by the Contractor.
25 Reporting
25.1 Reporting to Finance
At no cost to Finance or any other Agency, the Contractor must provide Finance with the
reports for each Deliverable to which it is enrolled, as set out in 0 – Statement of
Deliverables.
The Contractor must promptly provide additional information in respect of this Head
Agreement and any Contract as Finance may reasonably request from time to time.
As a minimum, the reports will include:
25.1.1 Tracking Number, details of the Agency Orders for Deliverables in the
preceding calendar month, including model numbers and SKU, Agency
name, date of sale, quantity and unit prices;
25.1.2 delivery information, including any delays;
25.1.3 status of outstanding Agency warranty issues, including mean time to repair;
and
25.1.4 invoices and Contracts will be provided to Finance upon request to support
the Contractors Reports.
Intellectual Property Rights in all reports provided under this Head Agreement will vest in
Finance absolutely upon creation.
22
26 Accounts, books and records
The Contractor must keep, maintain and audit adequate accounts, books and records, in
sufficient detail to enable the amounts payable by the Customer under this Head Agreement
to be determined.
27 Audit and access
27.1 Right to conduct audits
27.1.1 Finance in respect of the Head Agreement or Contract, and the Customer in
respect of the Contract to which it is a party, or a person or organisation
nominated by Finance or the Customer, as applicable, may conduct audits
relevant to the performance of the Contractor's obligations under the Head
Agreement or Contract at any time.
27.1.2 Audits may be conducted if they relate to this Head Agreement or Contract of:
27.1.2.1
the Contractor's operational practices and procedures as
they relate, including security procedures;
27.1.2.2
the accuracy of the Contractor’s invoices and reports in
relation to the provision of Deliverables;
27.1.2.3
the Contractor's compliance with its confidentiality, privacy
and security and other obligations;
27.1.2.4
Material (including books and records) in the possession of
the Contractor relevant to the Deliverables; and
27.1.2.5
any other matters determined by Finance or the Customer
to be relevant to the Deliverables.
27.2 Access by Finance or a Customer
27.2.1 Finance in respect of the Head Agreement or Contract, and the Customer in
respect of a Contract to which it is a party, or a person nominated by Finance
or the Customer, as applicable, may, at reasonable times and on giving
reasonable Notice to the Contractor:
27.2.1.1
access the premises of the Contractor to the extent relevant
to the performance of the Contract; and
27.2.1.2
inspect and copy relevant Documents, books and records,
however stored, in the possession, custody or control of the
Contractor or its Personnel.
27.2.2 The Contractor must comply with any request from Finance or the Customer,
as applicable, for the Contractor to:
27.2.2.1
give Finance or the Customer, or their nominee, copies of
records and information in a data format and storage medium
accessible by Finance or the Customer by use of the Customer’s
existing computer hardware and software or other facilities; and
27.2.2.2
provide assistance in respect of any inquiry into or
concerning the Head Agreement or Contract. For this purpose, an
inquiry includes any administrative or statutory review, audit or inquiry
(whether within or external to Finance or the Customer's
organisation), any request for information directed to Finance or the
23
Customer, and any inquiry conducted by Parliament or any
Parliamentary committee.
27.3 Conduct of audit and access
27.3.1 The Contractor must provide access to its computer hardware and software
to the extent necessary for Finance or the Customer to exercise its rights
under this clause 27, and provide Finance or the Customer, or their nominee,
with any reasonable assistance requested by Finance or the Customer to use
that hardware and software.
27.3.2 Finance and the Customer must use reasonable endeavours to ensure that:
27.3.2.1
audits performed pursuant to clause 27.1.1; and
27.3.2.2
the exercise of the general rights granted by clauses 27.1
and 27.2.2; and
27.3.2.3
do not unreasonably delay or disrupt in any material respect
the Contractor's performance of its obligations under the Head
Agreement or Contract.
27.4 Costs
27.4.1 Subject to clause 27.4.2, each party must bear its own costs of all
inspections, access and audits.
27.4.2 If the Contractor is able to substantiate that it has incurred direct expenses in
the exercise by Finance or the Customer of the rights granted under
clauses 27.1.1, 27.1.2, 27.2.1 or 27.2.2 which, having regard to the value of
the relevant Contract, are substantial, Finance or the Customer, as
applicable, 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 the Head Agreement or any
Contract.
27.5 Auditor-General,
Ombudsman
Information
Commissioner,
Privacy
Commissioner
and
27.5.1 The rights of Finance and the Customer under clauses 27.2.1 and 27.2.2
apply equally to the Auditor-General or a delegate of the Auditor-General, the
Information Commissioner or a delegate of the Information Commissioner,
the Privacy Commissioner or a delegate of the Privacy Commissioner and the
Ombudsman or a delegate of the Ombudsman for the purpose of performing
the Auditor-General's, the Information Commissioner's, the Privacy
Commissioner's or Ombudsman's statutory functions or powers or, if the
Customer is a State or Territory Agency, to the equivalent office holders in
that State or Territory (each an Authorised Investigator).
27.6 Contractor to comply with Authorised Investigator's requirements
27.6.1 The Contractor must do all things necessary to comply with the requirements
of an Authorised Investigator, notified under clause 27.1, provided such
requirements are legally enforceable and within the power of the Authorised
Investigator.
24
27.7 No restriction
27.7.1 Nothing in the Head Agreement or any Contract reduces, limits or restricts in
any way any function, power, right or entitlement of an Authorised
Investigator. The rights of Finance and the Customer under this clause 27 are
in addition to any other power, right or entitlement of an Authorised
Investigator.
27.8 No reduction in responsibility
27.8.1 The requirement for, and participation in, audits does not in any way reduce
the Contractor's responsibility to perform its obligations in accordance with
the Head Agreement or Contract.
27.9 Subcontractor requirements
27.9.1 The Contractor must ensure that any subcontract entered into for the purpose
of the Head Agreement or Contract contains an equivalent clause granting
the rights specified in this clause 27.
27.10
Consequences of audit
27.10.1 The Contractor must promptly take, at no additional cost to Finance or the
Customer, 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 the Head Agreement or Contract, including the way the
Contractor has:
27.10.1.1
supplied any Deliverable; or
27.10.1.2
calculated Charges, or any other amounts or fees billed to
the Customer.
28 Unforeseen events
28.1 Occurrence of unforeseen event
An affected Party (Party) is excused from performing its obligations under this Head
Agreement, and it is not required to indemnify or pay damages in respect of any breach, and
this Head Agreement may not be terminated in reliance on such a breach, to the extent it is
prevented by, or the breach or failure or the event giving rise to an entitlement to claim under
an indemnity, is caused by circumstances beyond its reasonable control:
28.1.1 including but not limited to acts of God, natural disasters, acts of war, riots,
strikes outside that party's organisation and the improper acts and omissions
of the other party over which they have no control; but
28.1.2 not including (in the case of the Contractor's breach or non-performance of
this Head Agreement) the Contractor's or a Key Service Partner's Cloud
Deliverables failure however caused, or lack of funds for any reason or any
strike, lockout and labour disputes, or fraud or theft, or Personnel becoming
unavailable for any reason including illness, injury or death, or disruption
caused by persons exercising a right of access or inspection, or ceasing work
for health and safety reasons or a Key Service Partner's failure or default.
28.2 Notice of unforeseen event
When the circumstances described in clause 28.1 arise or are reasonably perceived by the
Party as an imminent possibility, the Party must give notice of those circumstances to the
other party as soon as possible, identifying the effect they have on its performance.
25
28.3 Unforeseen events affecting Contractor
If the Party is the Contractor and if the circumstance is an improper act or omission of the
Customer, which causes the Contractor to unavoidably incur additional costs, the Customer
will reimburse the Contractor for those unavoidable costs incurred within 30 days after
providing evidence to the Customer of the incurrence of those costs.
28.4 Obligation to minimise impact
Without prejudice to the requirements of clause 28.3, an Affected Party must make all
reasonable efforts to minimise the effects of such circumstances on the performance of its
obligations under this Head Agreement and commence to re-perform its obligations as soon
as the circumstance ceases.
29 Dispute resolution
29.1 No arbitration or court proceedings
If a dispute (Dispute), arises in relation to the conduct of this Head Agreement a party must
comply with this clause 29, and any Dispute resolution procedures set out in the Statement of
Deliverables, before starting arbitration or court proceedings (except proceedings for urgent
interlocutory relief). If a party has sought or obtained any urgent interlocutory relief that party
must then follow this clause 29.
29.2 Notification
A Party claiming a Dispute has arisen must give the other parties to the Dispute Notice setting
out details of the Dispute.
29.3 Parties to resolve Dispute
29.3.1 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 to resolve the Dispute. If the parties
cannot resolve the Dispute within that period or such longer period that they
may agree to, they must refer the Dispute to a mediator (or if the dispute is
solely in relation to a factual issue and not, for example, to the interpretation
of this Head Agreement, to an expert) if one of them requests.
29.3.2 Despite the existence of a Dispute, both parties must (unless requested in
writing by the other party not to do so) continue to perform their obligations
under this Head Agreement.
29.4 Appointment of expert or mediator
If the Parties to the Dispute cannot agree on an expert or mediator within 5 Business Days
after a request under clause 29.3.1, Finance will appoint an expert or mediator, as applicable.
29.5 Expert finding
The Parties agree to be bound by the findings of the expert appointed under clauses 29.3 or
29.4.
29.6 Role of mediator and obligations of parties
The role of a mediator is to assist in negotiating a resolution of the Dispute. A mediator may
not make a binding decision on a party to the Dispute except if the party agrees in writing.
Unless agreed by the mediator and parties, the mediation must be held within 15 Business
26
Days of the request for mediation in clause 29.3.1. The parties must attend the mediation and
act in good faith to genuinely attempt to resolve the Dispute.
29.7 Confidentiality
Any information or documents disclosed by a party under this clause 29:
29.7.1 must be kept confidential; and
29.7.2 may only be used to attempt to resolve the Dispute.
29.8 Costs
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 expert or mediator.
29.9 Termination of process
A party to a Dispute may terminate the dispute resolution process by giving notice to the other
party after it has complied with clauses 29.1 to 29.6. Clauses 29.7 and 29.8 survive
termination of the dispute resolution process.
29.10
Breach of this clause
If a party to a Dispute breaches clauses 29.1 to 29.9, the other party does not have to comply
with those clauses in relation to the Dispute.
29.11
Clause does not apply in certain circumstances
This clause 29 does not apply to any action undertaken by either party under, or purportedly
under clause 30.
30 Termination
30.1 Termination and reduction for convenience by the Customer
30.1.1 The Customer may, at any time, by giving not less than 7 Business Days
notice to the Contractor, terminate this Head Agreement or reduce the scope
of the Deliverables.
30.1.2 If this Head Agreement is terminated under clause 30.1.1, the Customer is
liable only for:
30.1.2.1
payments under clause 13 for the Deliverables which were
performed in accordance with this Head Agreement before the Head
Agreement End Date or under clause 9; and
30.1.2.2
reasonable costs incurred by the Contractor and which are
directly attributable to the termination. No sum in respect of loss of
profit is payable under this clause.
30.1.3 If the scope of the Deliverables is reduced, the Customer’s liability to pay the
Fees in respect of the Deliverables provided on and after the effective date of
the reduction abates in accordance with the reduction in the scope of the
Deliverables.
30.1.4 The Customer is not liable to pay compensation under clause 30.1.2 in an
amount which would, in addition to any amounts paid or due, or becoming
27
due, to the Contractor, exceed the amount that would have been payable
under this Head Agreement had it not been terminated.
30.2 Termination by the Customer for default
30.2.1 Without limiting any other rights or remedies the Customer may have against
the Contractor arising out of or in connection with this Head Agreement, the
Customer may terminate this Head Agreement effective immediately by
giving notice to the Contractor if:
30.2.1.1
the Contractor breaches a material provision of this Head
Agreement where that breach is not capable of remedy;
30.2.1.2
the Contractor breaches any provision of this Head
Agreement and fails to remedy the breach within 10 Business Days
or such longer period as may be specified in the notice after receiving
notice requiring it to do so;
30.2.1.3
the Contractor would incur liability under this Head
Agreement which but for clause 21 would exceed the limitation
amount set out in a Contract;
30.2.1.4
non–performance or diminished performance by the
Contractor due to a circumstance described in clause 28.1 continues
for a period of five 5 consecutive business days; or
30.2.1.5
an event
Contractor.
specified
in
clause 30.2.3
happens
to
the
30.2.2 Without limitation, for the purposes of clause 30.2.1, each of the following
constitutes a breach of a material provision:
30.2.2.1
the occurrence of an event or circumstance where this Head
Agreement expressly states that the Customer may terminate this
Head Agreement on that specific event or circumstance occurring;
30.2.2.2
breach of warranty under clause 10 (Contractor warranties);
and
30.2.2.3
a failure to comply with clauses 6.4 (Prohibited charging), 17
(Confidentiality), 18 (Protective Security), 19 (Protection of personal
information) or 38.4 (Assignment and novation).
30.2.3 The Contractor must notify the Customer promptly if:
30.2.3.1
30.2.3.2
30.2.3.3
there is a change in Control of the Contractor;
the Contractor disposes of the whole or any part of its assets,
operations or business other than in the ordinary course of business;
the Contractor ceases to carry on business;
30.2.3.4
the Contractor ceases to be able to pay its debts as they
become due;
30.2.3.5
the Contractor being a company enters into liquidation or has
a controller or managing controller or liquidator or administrator
appointed the Corporations Act 2001 (Cth);
28
30.2.3.6
the Contractor being a natural person is declared bankrupt or
assigns his or her estate for the benefit of creditors; or
30.2.3.7
where the Contractor is a partnership, any step is taken to
dissolve that partnership.
30.2.4 If this Head Agreement is terminated under clause 30.2.1, the Customer is
liable only for payments under clause 13 for the Deliverables performed in
accordance with this Head Agreement.
30.3 Termination by the Contractor for default
Without limiting any other rights or remedies the Contractor may have against the Customer
arising out of or in connection with this Head Agreement, the Contractor may terminate this
Head Agreement by giving at least 60 days notice to the Customer if the Customer has not
paid a correctly rendered invoice within 60 days of written demand for payment of the unpaid
invoice.
30.4 Survival
The following clauses survive the Head Agreement End Date: 9 (Disengagement and
Transition Out), 10 (Contractor warranties), 16 (Intellectual Property Rights), 17
(Confidentiality), 18 (Protective Security), 19 (Protection of personal information), 20
(Indemnities), 21 (Limitations of liability), 22 (Insurance), 24 (Accounts, books and records)
and 27 (Audit and access).
30.5 Termination does not affect accrued rights
The occurrence of the Head Agreement End Date, including by termination of this Head
Agreement, does not affect any accrued rights or remedies of a party.
Part 6 – Law and Policy
31 Laws and policies
31.1 Compliance with Law and policy
The Contractor must, in performing its obligations under this Head Agreement, comply with all
applicable Laws.
31.2 Freedom of information
31.2.1 In clauses 31.2.2 and 31.2.3, 'document' and 'Commonwealth contract' have
the same meaning as in the Freedom of Information Act 1982 (Cth).
31.2.2 The Contractor acknowledges that this Head Agreement is a Commonwealth
contract.
31.2.3 The Contractor must cooperate with and assist the Customer as it may
reasonably requires to enable it to comply with any obligations it may have
under freedom of information legislation (including the Freedom of
Information Act 1982 (Cth), including by:
31.2.3.1
observing the policies and protocols notified to the Contractor
regarding complying with freedom of information legislation; and
31.2.3.2
if Finance or the Customer receives a request for access to a
document or other Material created by, or in the possession of, the
Contractor or any Key Service Partner that relates to the performance
29
of this Head Agreement (and not to the entry into this Head
Agreement), providing to them, or at their election giving them and
their advisers access to and the means to copy, that document or
other Material.
31.3 Notified policies
Without limiting any other obligations under this Head Agreement, the Contractor must comply
with all Commonwealth policies notified to the Contractor by Finance or the Customer from
time to time which are relevant to the obligations of the Contractor under this Head
Agreement. Where Finance or the Customer notifies the Contractor of a new policy, or a
change to a policy, that is made after the Effective Date which causes the Contractor to incur
compliance costs that it would not otherwise have incurred, the Customer will compensate the
Contractor for its verified, reasonable, additional compliance costs.
31.4 Health and Safety
31.4.1 In this clause 31.4, 'Worker', 'Inspector', 'notifiable Incident' and 'Regulator'
have the meanings given in the Work Health and Safety Act 2011 (Cth) (WHS
Act).
31.4.2 The Contractor must:
31.4.2.1
not, and must ensure its Personnel do not, by act or omission,
place the Customer or Finance in breach of its obligations under any
Laws concerning health and safety, including the WHS Act; and
31.4.2.2
if the Contractor is required by the WHS Act to report a
notifiable Incident to the Regulator in relation to Deliverables,
promptly notify the Customer of the notifiable Incident and, if
requested by the Customer, provide a copy of any written notice
given to the Regulator within 10 Business Days.
32 Negation of employment, partnership, Agency
The Contractor:
32.1.1 is not an agent, representative, trustee, Official or partner of the Customer or
Finance by virtue of this Head Agreement and must not represent itself as
such in any circumstances; and
32.1.2 has no power or Agency to act for or to assume any obligation or
responsibility on behalf of the Customer or Finance.
Part 7 – Miscellaneous
33 Head Agreement Administration
33.1 Representatives
33.1.1 The Contractor Representative is responsible for administration of this Head
Agreement on behalf of the Contractor and must:
33.1.1.1
assign Finance with an Account Manager, listed in clause
33.3.4, to assist with day to day activities in relation to the
management of the Head Agreement;
30
33.1.1.2
be able to answer enquiries, queries or requests for quotation
for Deliverables;
33.1.1.3
be contactable by Finance and the Customer within Business
Hours; and
33.1.1.4
ensure that their contact details are accurate and up to date
at all times.
33.1.2 The Contractor Representative must have sufficient authority within the
Contractor’s organisation to be able to resolve any issues that arise, in a
prompt and effective manner.
33.1.3 The Contractor Representative is the person identified in Item 2 of
Schedule 2 (Head Agreement Details) or, for particular Services, in a Work
Order, or their nominee
33.1.4 Within one week of any change in the contact details of the Contractor
Representative, the Contractor must advise Finance (for the Official Order
Contractor Representative) or the applicable Customer (for the affected
Cloud Deliverables Panel Contract Contractor Representative) by Notice of
the change.
33.1.5 Finance or the applicable Customer may request an alternate Contractor
Representative and the Contractor must nominate an alternative Contractor
Representative when requested.
33.1.6 The Customer Representative is responsible for administration of any Cloud
Deliverables Contract to which the Customer is a party on behalf of the
Customer.
33.1.7 The Finance Representative is responsible for administration of this Head
Agreement on behalf of Finance. The Finance Representative
is the only person authorised to agree to changes to this Head Agreement.
33.1.8 The Finance Representative will be nominated by Notice to the Contractor
from time to time and at the Commencement Date:
Director, ICT Procurement Branch
Department of Finance
John Gorton Building
King Edward Terrace
Parkes ACT 2600
Email: ICTProcurement@finance.gov.au
33.1.9 The Customer Representative will be identified in the relevant Contract
Details.
33.1.10 The Contractor Representative, the Customer Representative and the
Finance Representative may each delegate their functions, or authorise that
their functions be carried out on their behalf. The Contractor, Customer or
Finance, as appropriate, will Notify the other party of any such delegation or
authorisation.
33.1.11 Any oral directions given by a party that, in the other party's opinion will have
an impact on scope, costs, timing or resources relevant to a Contract, must
be confirmed by Notice from the party's Representative in accordance the
Contract, within a reasonable period.
31
33.2 Delegation
The Contractor Representative and the Finance 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 Finance, as appropriate, will notify the other party of any such
delegation or authorisation.
33.3 Escalation of issues
33.3.1 Finance may need to escalate issues where there is an insufficient response
from the Account Manager or Contractor Representative. In this case,
Finance may escalate to the Contractor Representative’s Manager.
33.3.2 The Contractor Representatives Manager for escalation is:
Name: [Insert Name]
Position: [Insert Position Title]
Address: [Insert Position Title]
Email: [Insert Email]
33.3.3 The Contractor Representative for escalation is:
Name: [Insert Name]
Position: [Insert Position Title]
Address: [Insert Position Title]
Email: [Insert Email]
33.3.4 The Account Manager is:
Name: [Insert Name]
Position: [Insert Position Title]
Address: [Insert Position Title]
Email: [Insert Email]
33.3.5 The Finance Representative for escalation is:
Assistant Secretary, ICT Procurement Branch
Department of Finance
John Gorton Building
King Edward Terrace
Parkes ACT 2600
Email: ICTProcurement@finance.gov.au
33.4 E-commerce
The parties will cooperate in performing their respective obligations under the Head
Agreement in an electronic environment.
34 Notices
A notice must be in writing, transmitted electronically and signed by a person duly authorised
by the sender. It is conclusively taken to be received if the recipient's system acknowledges
receipt by any means (including by means of an electronic mail 'read receipt' message). If
receipt is not on a Business Day or is after 5:00 pm on a Business Day, the notice is taken to
be received at 9:00 am on the next Business Day.
32
35 Variations
35.1 Variations to this Head Agreement to be in writing
No variation of this Head Agreement will be binding on the parties unless it is in writing and
signed by both parties.
35.2 Variation procedure
If a party (the Contractor) wants to vary this Head Agreement or any Contract it must provide
the other party (Finance) with details of the variations in writing, substantially in the form of
Schedule 8 (Change Order). Within 20 Business Days after receiving the Contractors request
or as otherwise agreed by the parties, Finance must respond in writing to the Contractor
either accepting or rejecting the variation proposal. Promptly after agreeing the variations the
parties must execute an instrument containing those changes produced by Finance.
35.3 Additional Fees
Finance is not liable for the cost of any additional work undertaken or expenditure incurred by
the Contractor pursuant to a variation of this Head Agreement or any Contract unless such
variation has been effected in accordance with this clause 33.
36 Service Tool
37 Changes to a Category of a Cloud Deliverables
37.1.1 Without limiting any other rights or remedies Finance may have against the
Contractor arising out of or in connection with this Head Agreement, Finance
may, by giving Notice to the Contractor, impose a change in respect of any
one or more Deliverables (or part of any one or more Deliverables) to which
the Contractor is enrolled if one or more of the following occurs:
37.1.1.1
Finance has been requested by Agencies to add additional
categories to the Cloud Panel based on new technology offerings in
the marketplace;
37.1.1.2
Finance has been advised through industry consultation of
new developments within the marketplace;
37.1.1.3
Finance has received negative feedback from an Customer in
respect of the performance of the Contractor;
37.1.1.4
Finance considers that the Contractor is not providing
Deliverables in accordance with a Contract and 0; or
37.1.1.5
Finance has a right to terminate this Head Agreement in
accordance with clause 30.
37.1.2 If Finance imposes a Change in accordance with clause 37.1.1:
37.1.2.1
Finance must notify the Contractor of the reason for imposing
the change; and
37.1.2.2
the following apply until the suspension is lifted in accordance
with clause 37.1.2.2d):
33
a)
Agencies must not issue a Contract Order Form to the
Contractor for the provision of the Deliverables;
b)
the Contractor must promptly notify Finance if it receives
a Contract Order Form for the provision of the
Deliverables;
c)
the Contractor must not enter a Contract with an Agency;
and
d)
each party must continue to perform all of its other
obligations under this Head Agreement and all existing
Contracts.
To avoid doubt, Agencies rights and
obligations also continue under existing Contracts.
37.1.2.3
Finance may at any time lift a change that it has imposed in
accordance with clause 37.1.1 by issuing a Notice to the Contractor
that the change is lifted. Finance must lift the change promptly after
the Contractor demonstrates to Finance's satisfaction that the
Contractor has rectified the issue that caused the change.
38 Other Miscellaneous
38.1 Entire agreement
This Head Agreement records the entire agreement between the parties in relation to its
subject matter and supersedes any prior negotiations and communications between the
parties in connection with its subject matter, whether written or oral.
38.2 Approvals and consents
Except where this Head Agreement expressly states otherwise, a party may, in its discretion,
give conditionally or unconditionally or withhold any approval or consent under this Head
Agreement.
38.3 Machinery of government change
In the event that the Finance's responsibilities for this Head Agreement are transferred to
another Agency:
38.3.1 Finance or the Agency to which responsibility for the Deliverables has been
transferred may notify the Contractor of that fact; and
38.3.2 on receipt of that notice or if there is an effective date specified in the notice,
on that date:
38.3.2.1
Finance shall be deemed to have been replaced in this Head
Agreement by the Agency to which responsibility for the Deliverables
has been transferred; and
38.3.2.2
references to Finance shall be deemed to be references to
the substituted Agency.
38.4 Assignment and Novation
Except as stated in clause 38.3, a party may only assign its rights or novate its rights and
obligations under this Head Agreement with the prior written consent of the other party.
34
38.5 Counterparts
This Head Agreement may be executed in counterparts. All executed counterparts constitute
one document.
38.6 Further action
Each party must do, at its own expense, everything reasonably necessary (including
executing documents) to give full effect to this Head Agreement and any transaction
contemplated by it.
38.7 Severability
A term or part of a term of this Head Agreement that is illegal or unenforceable may be
severed from this Head Agreement and the remaining terms or parts of the terms of this Head
Agreement continue in force.
38.8 Waiver
Waiver of any provision of or right under this Head Agreement:
38.8.1 must be in writing signed by the party entitled to the benefit of that provision
or right; and
38.8.2 is effective only to the extent set out in any written waiver.
38.9 Governing Law and jurisdiction
This Head Agreement is governed by the Law of the Australian Capital Territory and each
party irrevocably and unconditionally submits to the non exclusive jurisdiction of the courts of
that jurisdiction.
Executed as a Head Agreement by the
Department of Finance representing the
Commonwealth of Australia in the presence of:
)
)
)
)
)
.........................................................................
Signature of Witness
.........................................................................
Signature of delegate
.........................................................................
(Print) Name of Witness
.........................................................................
(Print) Full name and position of delegate
Date:
35
Executed by [Insert name of Contractor] in
accordance
with
section 127
of
the
Corporations Act 2001 (Cth):
)
)
)
)
.........................................................................
Director
.........................................................................
Director/Secretary
.........................................................................
(Print) Full Name
.........................................................................
(Print) Full Name
Date:
36
Schedule 1 – Head Agreement Glossary
Act means a document attesting a legal transaction.
Account Manager means the person identified in Clause 33.3.4 to assist with the
administration of this Head Agreement in consultation with the Contractor Representative.
Administrator means a person responsible for carrying out the administration of a business
or organization
Agency means:
(a)
a Commonwealth Agency within the meaning of the Public
Governance, Performance and Accountability Act 2013 (Cth), an
agency governed by the Financial Management and Accountability Act
1997 (Cth) or a company or authority governed by the Commonwealth
Authorities and Companies Act 1997 (Cth);
(b)
any other body governed by the Governor-General or State Governor
or by a Minister of State of the Commonwealth or a State or Territory
including departments in State or Territory Governments; or
(c)
any incorporated company controlled by a State or Territory.
Agency Material means any Material provided to the Contractor by the Commonwealth or an
Agency in connection with this Deed.
Asset means an item of property owned by a person or company, regarded as having value
and available to meet debts, commitments, or legacies
Authorised Personnel means the office holders and their delegates who have a legislative
responsibility to investigate, monitor or audit the affairs of Agencies, including the
Commonwealth Ombudsman, Auditor-General and Privacy Commissioner and their
equivalent State and Territory office holders.
Background IP means Intellectual Property Rights, other than Third Party IP, that:
(a)
are in existence at the Effective Date or are subsequently brought into
existence other than as a result of the performance of this Deed; and
(b)
are embodied in, or attach to, the Deliverables or are otherwise
necessarily related to the functioning or operation of the Deliverables.
Bankrupt means (Of a person or organization) declared in law as unable to pay their debts
Business Day means any day that is not a Saturday, Sunday, public holiday in the Australian
Capital Territory or a national public holiday where a 'national public holiday' is a public
service holiday throughout Australia promulgated in the Commonwealth of Australia Gazette.
Business Hours means from 8:00am to 6:00pm on a Business Day at the place where
Services are to be provided
Cloud means (usually the Cloud) cloud computing; a network of remote servers hosted on
the Internet and used to store, manage, and process data in place of local servers or personal
computers.
37
Cloud Deliverables means all hardware including servers, cabling and routers, and buildings,
plant and equipment used by the Contractor to provide the Deliverables over which the
Contractor or a Key Service Partner exercises or is entitled to exercise possession or control.
Commonwealth means the Commonwealth of Australia.
Confidential Information means information that is by its nature confidential and:
(a)
is described in Schedule 6 or elsewhere in this Head Agreement as
Confidential Information; or
(b)
is agreed by the parties to be confidential after the Effective Date; or
(c)
a party knows or ought to know is confidential; or
(d)
is designated by the Commonwealth as confidential,
but does not include information that:
(e)
is or becomes public knowledge other than by breach of this Head
Agreement or by any other unlawful means;
(f)
is in the possession of that person without restriction in relation to
disclosure before the date of receipt from the Commonwealth; or
(g)
has been independently developed or acquired by that person.
Confidentiality Undertaking means a properly executed deed in the form at Schedule 7 or
as otherwise agreed by the Commonwealth.
Conflict of Interest means any actual or perceived conflict between the duty of the
Contractor to Finance or a Customer and either:
(a)
The contractors own interests; or
(b)
The Contractors duty to another Agency.
Contract means a contract entered into under this Head Agreement between the
Commonwealth and the Contractor.
Contractor means the party specified in Item 2 of the Head Agreement Details.
Contractor Representative means the person identified in Item 2 of the Head Agreement
Details or, for particular Deliverables, in a Contract, or their nominee.
Control of a corporation or other body means the power to determine the outcome of
decisions about the financial and operating policies of that corporation or body or the
membership of the majority of the board of directors (or members of a governing body having
functions similar to a board of directors) of that corporation or body.
Controller means A person or thing that directs or regulates something
Customer means any agency that has executed a contract under this Head Agreement with a
Contractor
Deliverable means any Services, Software, Documentation, New Material or other item to be
supplied by the Contractor under the Contract
38
Deliverables List means the List of Deliverables that is specified in 0 - Statement of
Deliverables supplied by the Contractor under the Contract
Dispute means a disagreement between parties.
Effective Date means the date on which this Head Agreement is signed by the parties, or if
signed on separate days, the date of the last signature.
Expert means A person who is very knowledgeable about or skilful in a particular area.
Fees means the fees payable to the Contractor under this Head Agreement as set out in
Schedule 4 and a Contract.
Finance means the Australian Government Department of Finance or such other Agency to
which responsibility for the operations of this Head Agreement is transferred through
machinery of government changes from time to time.
Finance Representative means the person identified in Item 3 of the Head Agreement
Details or (for a particular Contract) the Contract, or their nominee.
Foreground IP means Intellectual Property Rights which are created under or otherwise in
connection with this Head Agreement, other than Third Party IP.
GST has the meaning given to that term in the A New Tax System (Goods and Services Tax)
Act 1999 (Cth).
Head Agreement means this Head Agreement between the Commonwealth and the
Contractor, as amended from time to time, and includes its schedules and any attachments.
Head Agreement Details means the details set out in Schedule 1 of this Head Agreement.
Head Agreement End Date means the expiry of the Head Agreement Term or the date of
earlier termination of this Head Agreement.
Head Agreement Term means the period specified in Item 4 of the Head Agreement Details
or if the term is extended under clause 2.3, the extended term.
Head Agreement Terms and Conditions means clauses 1Error! Reference source not
found. to 38 of this Head Agreement.
Information Security Manual means the Australian Government Information Security
Manual.
Intellectual Property Rights means all intellectual property rights including the following
rights:
(a)
all copyright (including rights in relation to phonograms and
broadcasts), all rights in relation to inventions (including patent rights),
plant varieties, registered and unregistered trade marks (including
service marks), registered and unregistered designs, domain names,
circuit layouts, and all other rights resulting from intellectual activity in
the industrial, scientific, literary or artistic fields;
(b)
any application or right to apply for registration of any of the rights
referred to in paragraph (a); and
(c)
all rights of a similar nature to any of the rights in paragraphs (a) and
(b) which may subsist in Australia or elsewhere,
39
whether or not such rights are registered or capable of being registered.
IP Register means a record of all Foreground IP, Background IP and Third Party IP that is
used in the Deliverables and the licences that govern those Intellectual Property Rights.
Key Service Partner means a third party with which the Contractor has a contract for using
or accessing Cloud Infrastructure used for the Deliverables or a subcontractor of the
Contractor.
Law means all obligations under, and rules of, law, including common law, as well as any
other applicable statute, regulation, by–law, ordinance or subordinate legislation in force from
time to time.
Legal Services Directions means the Commonwealth Attorney General's Legal Services
Directions issued under section 55ZF of the Judiciary Act 1903 (Cth).
Liability means the state of being legally responsible for something
Limiting means a point or level beyond which something does not or may not extend or pass
Liquidation means the process of liquidating a business.
Liquidator means a person appointed to wind up the affairs of a company or firm.
Material means any Software, firmware, data, documented methodology or process,
documentation or other material in whatever form, including any reports, specifications,
business rules or requirements, user manuals, user guides, operations manuals, training
materials and instructions, facilities, systems, Software or information, and the subject matter
of any category of Intellectual Property Rights.
Malicious means characterized by malice; intending or intended to do harm
Mediator means a person who attempts to make people involved in a conflict come to an
agreement.
Notice means a Notice under the Head Agreement or any Contract that is set in accordance
Clause 34 of the Head Agreement or Contract.
Notify and Notification have a corresponding meaning
Novation means the substitution of a new contract in place of an old one as described in
Clause 38.4
Objectives and Outcomes means the creation and ongoing support of a government content
management system and includes the objectives and outcomes of Finance in connection with
Cloud Deliverables as described in the Statement of Deliverables.
Obligation means an act or course of action to which a person is morally or legally bound; a
duty or commitment.
Omission means someone or something that has been left out or excluded.
Partnership means the state of being a partner or partners
Performance Guarantee means A performance guarantee from a guarantor approved by
Finance or the Customer to ensure the due performance on the Contract by the Contractor.
40
Personnel means in relation to a party, any natural person who is an employee, officer, agent
or professional adviser of that party and, in the case of the Contractor, of a Key Service
Partner.
Personal Information has the meaning given in clause 19 in this Head Agreement.
Problem means any disruption to the Deliverables, reduction in the quality of the Deliverables
or Security Incident.
Protective Security Policy Framework means the Australian Government Protective
Security Policy Framework.
Provision means a condition or requirement in a legal document
Quotation means a quotation to provide Deliverables given in response to a Request for
Quote.
Resolution means the action of solving a problem or contentious matter
Request for Quote means a request given under clause 6.2.
Restriction means a limiting condition or measure, especially a legal one
Scope means the extent of the area or subject matter that something deals with or to which it
is relevant
Security Incident means security breach, violation, contact or approach from those seeking
unauthorised access to Material relating to the Deliverables.
Service Levels means the level of Deliverables the Contractor is required to attain or exceed,
as set out in the Statement of Deliverables or Contracts.
Services means the services described in the Statement of Services and any incidental
services or functions required for the proper performance of the Services.
Services Period means the period described as such in a Contract, being the period for
providing Services.
Services Start Date means the date described as such in the Contract.
Software means any computer program (including Source Materials), object code, microcode, firmware, any software tools, software objects or object libraries embedded in that
software or otherwise forming part of it and all Material related to that software and its design,
development, modification, operation, support or maintenance of it and includes any new
versions or modifications or upgrade to such software.
Source Materials means the source materials including source code and object code of, and
all relevant documentation, notes and other materials required to support the Software.
State means a State of the Commonwealth.
Statement of Deliverables means 0.
Termination means the action of terminating something or the fact of being terminated
Territory means a Territory of the Commonwealth.
Third Party Provider can enter into a contract provided they
Finance for the provision of Deliverables
have been approved by
41
Third Party IP means those Intellectual Property Rights that are owned by a party other than
the Commonwealth, an Agency or the Contractor and is embodied in, or attaches to, the
Services or is otherwise necessarily related to the functioning or operation of the Services.
Tracking Number means a numerical/alphabetical number that has been assigned to a
quotation.
Transferred means change (the sense of a word or phrase) by extension or metaphor
Waiver means an act or instance of waiving a right or claim
Warranty means a written guarantee, issued to the purchaser of an article by its
manufacturer, promising to repair or replace it if necessary within a specified period of time.
42
Schedule 2 - Head Agreement Details
Item Number
Item 1
Description
Contractor details
Clause
reference
33.1.1
Details
[Insert]
ABN [Insert]
Item 2
Contractor
Representative
33.1.3
[Insert]
Item 3
Finance
Representative
33.1.4
[Name
of
representative]
Item 4
Head Agreement
Term
2.2
[Insert] years from and including
the Effective Date.
Item 5
Extension of Head
Agreement Term
2.3
[Insert] periods each of [Insert]
months duration
Item 6
Address for notices
Error! No
ookmark
name
given.33.1.5
Finance's
Finance:
Email Address:
[Insert]Contractor:
Email Address:
[Insert]
43
Schedule 2 - Attachment 1 (Performance Guarantee and Indemnity)
Note: This is the form of document that Finance or an Agency may require depending on its risk
assessment.
THIS DEED OF GUARANTEE made on the
Day of
20
.
BETWEEN
COMMONWEALTH OF AUSTRALIA acting through and represented by the [insert name and ABN of
the agency] (the Customer)
AND
[insert Guaranteeing Company's name and ABN] (the Guarantor).
RECITALS:
A
The Customer requires the provision of certain [information and communication technology
services] (Deliverables).
B
[insert Contractor's name and ABN] (hereinafter called ‘the Contractor’) has agreed to
perform that work for the Customer on the terms and conditions contained in the Contract
executed by the Contractor and the Customer on [date] ('the Contract').
C
The Guarantor agrees to provide the guarantees and indemnities set out below.
IT IS AGREED AS FOLLOWS:
The Guarantor guarantees to the Customer the performance of the obligations undertaken by the
Contractor under the Contract on the following terms and conditions:
(1)
If the Contractor (unless relieved from the performance of the Contract by the Customer or
by statute or by a decision of a tribunal of competent jurisdiction) fails to execute and
perform its undertakings under the Contract the Guarantor will, if required to do so by the
Customer, complete or cause to be completed those undertakings in accordance with the
conditions of the Contract. If the Contractor commits any breach of its obligations, and
such breach is not remedied by the Guarantor pursuant to the foregoing sentence, and the
Contract is then terminated for default, the Guarantor must indemnify the Customer against
costs and expenses directly incurred by reason of such default.
(2)
The Guarantor will not be discharged or released or excused from this Deed of Guarantee
by an arrangement made between the Contractor and the Customer with or without the
consent of the Guarantor, or by any alteration, amendment or variation in the obligations
assumed by the Contractor or by any forbearance whether as to payment, time,
performance or otherwise. This guarantee by the Guarantor to assume the obligations of
the Contractor will continue in force and effect until completion of all the Contractor's
obligations under the Contract or until the completion of the undertakings of this Deed of
Guarantee by the Guarantor.
(3)
The obligations of the Guarantor under this Deed of Guarantee will not exceed the
obligations of the Contractor under the Contract.
(4)
This Deed of Guarantee is subject to and must be construed in accordance with the laws in
force in the Australian Capital Territory and the parties agree that the courts of that Territory
have jurisdiction to entertain any action in respect of, or arising out of, this Deed of
Guarantee and submit themselves to the jurisdiction of those courts.
44
Execution and date
Executed as a deed.
Date:
Executed as a deed by [INSERT NAME]
(ABN [INSERT[) in accordance with Section
127 of the Corporations Act 2001 (Cth):
................................
Signature of Director
................................
Signature of Director/Company Secretary
.......................
Name of Director (print)
................................
Name of Director/Company Secretary (print)
................................
Date
................................
Date
Executed by the Commonwealth of
Australia represented by [insert] (ABN
[insert]) by its duly authorised delegate:
................................
Signature of witness
................................
Signature of delegate
................................
Name of witness (print)
................................
Name of delegate (print)
................................
Position of delegate (print)
45
Schedule 2- Attachment 2 (Unconditional Financial Undertaking)
Note: Your bank may have a standard form for Finance / Agencies to consider.
This Deed of Agreement made on the
Day of
2016
Between
1.
[Insert Name of Customer] ACN [Insert ACN] of [Insert Address]
(‘Customer’)
2.
[Insert Name of Guarantor] ACN [Insert ACN] of [Insert Address]
(‘Guarantor’)
3.
[Insert Name of Contractor] ACN [Insert ACN] of [Insert Address]
(‘Contractor’)
BACKGROUND
A.
The Contractor has agreed to supply Deliverables to the Customer pursuant to a contract
(‘Contract’).
A.
The Guarantor agrees to provide the following undertakings stated below in respect of the
Contract.
TERMS AND CONDITIONS
1.
The Guarantor unconditionally agrees to pay to the Customer on demand without reference to
the Contractor and separate from any notice given by the Contractor to the Guarantor not to
pay same, any sum or sums which may from time to time be demanded in writing by the
Customer to a maximum aggregate sum of $……………………………...[insert dollar amount]
2.
The Guarantor's liability under this Undertaking will be a continuing liability and will continue
until:
(a)
payment of the maximum aggregate sum of
$………………………………...[insert dollar amount] under this Undertaking is
made;
(b)
all obligations are discharged under the Head Agreement between the
Contractor and Finance / the Agency and under any Contracts made under that
Head Agreement; or
(c)
Finance / the Agency notifies the Guarantor that this Undertaking is no longer
required,
whichever occurs first.
3.
This undertaking shall be governed by and construed in accordance with the laws in force in
the [insert name of appropriate jurisdiction].
4.
A notice or other communication is properly given or served if the party delivers it by hand,
posts it or transmits a copy electronically (electronic mail or facsimile) to the address last
advised by one of them to the other. Where the notice is given or served electronically, the
sending party must confirm receipt by any other means.
46
4.1
4.2
A notice or other communication is deemed to be received if:
(a)
sent by post from and to an address within Australia, after three (3) Business Days;
(b)
sent by post from or to an address outside Australia, after ten (10) Business Days;
(c)
sent by facsimile, at the time which the facsimile machine to which it has been sent
records that the communication has been transmitted satisfactorily (or, if such time is
outside normal business hours, at the time of resumption of normal business hours);
(d)
sent by electronic mail, only in the event that the other party acknowledges receipt by
any means;
(e)
sent by any other electronic means, only in the event that the other party
acknowledges receipt by any means; or
(f)
delivered by hand, when the party who sent the notice holds a receipt for the notice
signed by a person employed at the physical address for service.
Address of the Customer
Physical address:
Postal address:
Phone number:
Fax number:
Email address:
4.3
Address of the Guarantor
Physical address:
Postal address:
Phone number:
Fax number:
Email address:
4.4
Address of the Contractor
Physical address:
Postal address:
Phone number:
Fax number:
Email address:
47
EXECUTED AS AN AGREEMENT
CUSTOMER
Executed by and on behalf of the
Commonwealth of Australia
represented by the [Customer] ABN
[ABN Number] by a duly authorised
representative in the presence of:
)
)
)
)
)
)
)
Signature of Witness
Signature of authorised representative
Name of Witness in full
Name of authorised representative
Date
Date
GUARANTOR
Executed by [Company Name] ACN
[ACN Number] in accordance with
Section 127(1)-(3) of the Corporations
Act 2001:
)
)
)
)
Signature of Director
Signature of Director/Company Secretary
Name of Director
Name of Director/Company Secretary
Date
Date
48
CONTRACTOR
Executed by [Company Name] ACN
[ACN Number] in accordance with
Section 127(1)-(3) of the Corporations
Act 2001:
)
)
)
)
Signature of Director
Signature of Director/Company Secretary
Name of Director
Name of Director/Company Secretary
Date
Date
49
Schedule 3 - Statement of Deliverables
[Note to Contractor: This Schedule will be agreed with the Preferred Tenderer based
on the RFT and its Response.]
50
Schedule 4 - Fees
[Note to Contractors: This Schedule will be agreed with the Preferred Tenderer based on its
Response.]
51
Schedule 5 – Contract
Contract
This Contract is made under a Head Agreement dated [insert date] made between the Commonwealth
of Australia represented by the Department of Finance and [insert name of Contractor].
Description
Details
Date of Contract
[Insert]
Deliverables Start
Date
[Insert]
Deliverables Period
[Insert] duration from and including [Insert].
Contractor
Representative
[Name of Contractor's representative]
Finance
Representative
[Name of Commonwealth's representative]
Address for notices
Finance:
Email Address:
[Insert]
Contractor:
Email Address:
[Insert]
Fees
[Insert]
Limitation of liability
amount
[Insert]
Deliverables
[Insert]
Offences under Commonwealth crime legislation
The Contractor acknowledges and agrees that:
(a)
any unauthorised access, alteration, removal, addition, possession, control, supply or impediment to the access,
reliability, security or operation of data held in any computer (or, in some cases, any storage device) in the course of
performing the Deliverables may be an offence under Part 10.7 of the Criminal Code 1995 (Cth) for which there are a range of
penalties, including a maximum of ten years imprisonment;
(b)
the giving of false and misleading information to the Commonwealth or its Personnel is a serious offence under
Division 137 of the Criminal Code 1995 (Cth); and
(c)
the publication or communication of any fact or document by a person which has come to their knowledge or into
their possession or custody by virtue of the performance of this Head Agreement (other than to a person to whom the
Contractor is authorised to publish or disclose the fact or document) may be an offence under sections 70 and 79 of the Crimes
Act 1914 (Cth), the maximum penalty for which is seven years imprisonment.
52
Schedule 6 - Confidential Information
[Note to contractor: This Schedule will be agreed with the preferred Tenderer.]
Commonwealth's Confidential Information in this Head Agreement
Confidential Information
Period of Confidentiality
Commonwealth's Confidential Information created or provided under or in connection with this
Head Agreement
Confidential Information
Period of Confidentiality
Contractor's Confidential Information in this Head Agreement
Confidential Information
Period of Confidentiality
Contractor's Confidential Information created or provided under or in connection with this
Head Agreement
Confidential Information
Period of Confidentiality
53
Schedule 7 - Head Agreement of Confidentiality
Head Agreement of Confidentiality
[Name of the Agency]
in favour of
the Commonwealth of Australia represented by the Department of Finance
54
Head Agreement of Confidentiality
Parties
[Name of the Customer], ABN [Insert] of [Address] (Customer)
The Commonwealth of Australia represented by the Department of Finance (Commonwealth)
The Commonwealth has entered into a Head Agreement with [name of Contractor] (Contractor) for
the provision of Cloud Deliverables (Deliverables).
In the course performing its role in respect of the Head Agreement, the Customer may have access
to, or become aware of, information belonging to or in the possession of the Commonwealth that is
Confidential Information and Personal Information
1.
Interpretation
.In this Head Agreement:
Approved Person means a person who is:
(a)
Commonwealth personnel; or
(b)
any other person nominated by the Commonwealth;
Confidential Information is information that:
(a)
is by its nature confidential;
(b)
is designated by the Commonwealth as confidential;
(c)
the Contractor knows or ought to know is confidential including:
(i)
information comprised in or relating to any of the Commonwealth's intellectual
property;
(ii)
information relating to the policies, strategies, practices and procedures of the
Commonwealth and any information in the Contractor's possession relating to
the Commonwealth; or
(iii)
Security Classified Information; or
(d)
is Commonwealth material and data,
but does not include information which:
(e)
is or becomes public knowledge other than by a breach by the
Contractor of any confidentiality obligation; or
(f)
has been independently developed or acquired by the Contractor as
established by written evidence;
Personal Information means information or an opinion:
55
(a)
about a natural person whose idAgency is apparent, or can be
reasonably ascertained, from the information or opinion;
(b)
whether true or not, and whether recorded in material form or not; and
(c)
of which the Agency becomes aware because of their involvement in
the provision of the Deliverables.
Security Classified Information means any information which has been classified for
security purposes by the Commonwealth;
2.
Authorised representative
If the Customer is not a natural person, the Customer warrants that the signatory to this Head
Agreement is an authorised representative of the Customer and is authorised to bind the
Customer.
3.
Protection of Personal Information and Confidential Information
(a)
The Customer agrees to keep secret and confidential all Personal Information and
Confidential Information and will not directly or indirectly disclose to any person, other
than an Approved Person, any Personal Information or Confidential Information. The
Customer agrees not to make any use of information contained in the Personal
Information or Confidential Information except as it relates to provision of the
Deliverables.
(b)
The Recipient understands and acknowledges that any unauthorised use or
disclosure of Personal Information or Confidential Information may make the
Customer liable for prosecution under the laws of the Commonwealth.
(c)
The Customer agrees to immediately notify the Commonwealth if it becomes aware
that any of the Personal Information or the Confidential Information:
(d)
4.
(i)
has been used, copied or disclosed in breach of this Head
Agreement; or
(ii)
is required to be disclosed by law.
The Customer acknowledges that improper use or disclosure of any Personal
Information or Confidential Information provided to or accessed by the Agency
pursuant to or in connection with the provision of the Deliverables may be detrimental
to the Commonwealth in the performance of its functions and may cause harm to any
third parties with an interest in the Personal Information or Confidential Information.
Indemnity
The Customer agrees to indemnify and hold harmless the Commonwealth in respect of all
costs, (including legal costs and expenses on a solicitor/own client basis) liability, losses and
claims reasonably incurred by the Commonwealth as a result of a breach of this Head
Agreement.
5.
Retrospectivity
This Head Agreement has retrospective effect and covers all Confidential Information or
Personal Information disclosed to the Customer by or on behalf of the Commonwealth or the
Contractor in connection with the Deliverables, whether before or after the date of this Head
Agreement.
56
EXECUTED as a Head Agreement
Executed by [name of the Customer] in
accordance
with
section 127
of
the
Corporations Act 2001 (Cth):
)
)
)
)
Director
Director/Secretary
(Print) Full Name
Date:
(Print) Full Name
Executed as a Head Agreement by the
Department of Finance representing the
Commonwealth of Australia in the presence of:
)
)
)
)
)
.........................................................................
Signature of Witness
.........................................................................
Signature of delegate
.........................................................................
(Print) Name of Witness
.........................................................................
(Print) Full name and position of delegate
Date:
57
Schedule 8 - Change Order
Change Order Number to Head Agreement or Contract [insert]
1.
Title of Change Order
Amendment to Head Agreement or Contract for [Insert
detail] Deliverables – [Insert Title of Change Order]
2.
Description of Change Order
[Insert brief description of Change Order]]
3.
The Head Agreement or Contract
Head Agreement or Contract dated [insert] for Wholeof-Government Cloud Deliverables Panel.
4.
Parties
(a)
(b)
Finance Representative
Contractor
Name: [name]
Address:
[address of Finance]
Attention
[name of representative of Finance]
Name [name of Contractor]
ABN
5.
Address
[insert Address of Contractor]
Attention
[insert Representative of Contractor]
Preservations
(a)
6.
[insert ABN of Contractor]
Acknowledgement of
rights
This Change Order does not affect any right or
obligation that arises before the changes contained in it
have effect. The parties are not released from any
accrued liabilities under the Head Agreement or
Contract. All accrued rights under the Head Agreement
or Contracts are reserved.
(a)
Start date
[Insert Start Date for Change Order]
(b)
Term of this Change
Order
[Insert period of Change Order in months/years or
specify an end date]
(c)
Arrangement to extend
[Insert whether an extension is allowed or not and
the number of extensions and maximum period of
any extension]
Term
7.
Fees
[Specify all changes to the Fees and expenses.]
8.
Invoices and Payment
Payment
[If invoicing is to depart from Head Agreement or
Contract arrangement, insert invoicing detail here]
9.
Changes made by this Change
Order
The Attachment to this Change Order specifies the
changes that are effected to the Head Agreement or
Contract. The affected pages are attached in mark-up
form.
58
Executed by the Commonwealth of Australia
represented by [insert] (ABN [insert]) by its
duly authorised delegate:
)
)
)
)
)
.........................................................................
Signature of Witness
.........................................................................
Signature of Authorised Official
.........................................................................
(Print) Name of Witness
.........................................................................
Address
Executed by[insert name of signatory] for
and on behalf of [name of Contractor] in the
presence of:
)
)
.........................................................................
Signature of Witness
.........................................................................
Signature
.........................................................................
(Print) Name of Witness
.........................................................................
Address
59
Schedule 8 - Attachment 1
Change Order to Head Agreement dated [insert] for Whole-of-Government Cloud
Deliverables Panel.
Amendments to Head Agreement
Head Agreement reference
Summary of subject matter
60