Department of Defence - Estate Works Program Suite - Minor Works Contract (EWP MIWC-1 2014) - [insert name of project
and works, as applicable]
CONFIDENTIALITY AGREEMENT
This agreement is made on
day of
BETWEEN
THE COMMONWEALTH OF AUSTRALIA (Commonwealth)
AND
THE ENTITY SPECIFIED IN ITEM 1 OF THE SCHEDULE (Tenderer)
RECITALS
A.
The Commonwealth intends to invite the Tenderer to lodge a Tender for the project described in item 2
of the Schedule (Project) and will publish on AusTender or issue by the person described in item 3 of
the Schedule (PDS Contractor) to the Tenderer by email the Information to Tenderers and Conditions
of Tender, Conditions of Contract and the Specifications, Drawings, Design Brief (if any), Information
on Declarations and any Other Documents for the Project (Tender Documents).
B.
In consideration of the Commonwealth agreeing to pay the sum of $1.00, the Tenderer has agreed to
make the acknowledgements, agreements and warranties and undertake the obligations set out in this
agreement.
OPERATIVE
1.
The Commonwealth agrees to pay the Tenderer the sum of $1.00.
2.
The Tenderer:
(a)
acknowledges and agrees that the Commonwealth:
(i)
if the Commonwealth is using AusTender, published on AusTender; or
(ii)
if the Commonwealth is not using AusTender, issued by the PDS Contractor to
the Tenderer by email,
this Confidentiality Agreement;
(b)
warrants that, before the earlier of:
(i)
(ii)
if the Commonwealth is using AusTender, to the extent that the Tender
Documents:
A.
are published on AusTender, before the Tenderer downloaded any of
the Tender Documents from AusTender; or
B.
are not published on AusTender, before the PDS Contractor issued
any of the Tender Documents to the Tenderer by email; or
if the Commonwealth is not using AusTender, before the PDS Contractor issued
the Tender Documents to the Tenderer by email,
the Tenderer duly completed, executed and returned this agreement to the PDS Contractor at
the email address specified in item 4 of the Schedule; and
(c)
3.
acknowledges and agrees that if requested by the PDS Contractor by email, the Tenderer
must provide to PDS Contractor by email the names and addresses of all persons to whom
the Tenderer has issued the whole or any part of the Tender Documents by the date and time
specified in the PDS Contractor's request.
The Tenderer:
(a)
acknowledges and agrees that the Confidential Information is confidential;
(b)
subject to paragraph (c)(iii), must not:
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Department of Defence - Estate Works Program Suite - Minor Works Contract (EWP MIWC-1 2014) - [insert name of project
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(i)
copy or otherwise reproduce in any form or medium the contents of the
Confidential Information (or any part of it) or otherwise cause, permit or allow
the Confidential Information (or any part of it) to be copied or reproduced in
any form or medium; or
(ii)
disclose or use or deal with, the contents of the Confidential Information (or any
part of it) or otherwise cause, permit or allow the Confidential Information (or
any part of it) to be disclosed, used or dealt with,
for any purpose other than preparing a Tender for the Project or carrying out the Project if
its Tender is successful;
(c)
acknowledges and agrees that if it wishes to:
(i)
copy or otherwise reproduce in any form or medium the contents of the
Confidential Information (or any part of it) or otherwise cause, permit or allow
the Confidential Information (or any part of it) to be copied or reproduced in
any form or medium; or
(ii)
disclose or use or deal with, the contents of the Confidential Information (or any
part of it) or otherwise cause, permit or allow the Confidential Information (or
any part of it) to be disclosed, used or dealt with,
for any purpose other than preparing its Tender for the Project or carrying out the Project if
its Tender is successful, the Tenderer must notify the PDS Contractor by email, providing
details of the proposed copying, reproduction, disclosure or dealing. Where a request for
copying, reproduction, disclosure or dealing is made under this paragraph (c), the PDS
Contractor will notify the Tenderer by email that the Commonwealth (in its absolute
discretion) either:
(d)
4.
(iii)
grants permission, whether with or without such conditions as the
Commonwealth thinks fit (including conditions requiring the recipient of
Confidential Information (or any part of it) to enter into a deed in a form
acceptable to the Commonwealth); or
(iv)
refuses permission; and
must ensure that:
(i)
the Confidential Information and all documents, materials, media and all other
things on or in which the Confidential Information (or any part of it) may be
recorded, contained, set out or referred to are kept secure and protected at all
times from any unauthorised use or access;
(ii)
all recipients of Confidential Information (or any part of it) comply with the
conditions of confidentiality and security as provided for in clauses 3 to 8; and
(iii)
all recipients of Confidential Information (or any part of it) do not do or omit to
do anything which, if done or omitted to be done by the Tenderer, would be a
breach of the Tenderer's obligations under clauses 3 to 8.
The Tenderer acknowledges and agrees that within 7 days of receipt of:
(a)
a request from the PDS Contractor by email, at any time; or
(b)
a notice from the PDS Contractor by email that the Tenderer has been unsuccessful (except
to the extent that the Tenderer is notified by the PDS Contractor in its notice that
compliance with this clause 4 (or any part of this clause 4) is not required),
the Tenderer must:
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Department of Defence - Estate Works Program Suite - Minor Works Contract (EWP MIWC-1 2014) - [insert name of project
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(c)
(d)
subject to clause 5, as directed by the PDS Contractor in its request or the notice (as the case
may be):
(i)
return all copies of the Confidential Information (to the extent the Confidential
Information is in a tangible form) to the PDS Contractor at the postal address
specified in item 4 of the Schedule; or
(ii)
promptly destroy all copies of the Confidential Information (to the extent the
Confidential Information is in a tangible form) and promptly provide
certification to the PDS Contractor by email that the Confidential Information
(to the extent the Confidential Information is in a tangible form) has been
securely and appropriately destroyed by the Tenderer; and
notify the PDS Contractor by email of all Confidential Information (or any part of it) which
the Tenderer knows or ought to know is beyond the Tenderer's possession, power, custody
or control, giving full particulars (including the nature and extent of the Confidential
Information, precise location, entity in possession, custody or control and any security
arrangements).
5.
Where required by law, the Tenderer may keep one copy of the Confidential Information for its records.
6.
The Tenderer acknowledges and agrees that:
7.
(a)
the return or destruction of the Confidential Information does not affect the Tenderer's
obligations under clauses 3 to 8; and
(b)
without limiting any other right or remedy of the Commonwealth, if the Tenderer has failed
to comply with the obligations in clauses 3 to 8, the Commonwealth may (in its absolute
discretion) do one or more of the following:
decide not to evaluate (or continue to evaluate) a Tender; or
(ii)
take the failure into account in assessing any future registration of interest or
tender lodged by the Tenderer.
Subject to clause 8, for the purposes of clauses 3 to 6, Confidential Information means:
(a)
the Tender Documents;
(b)
any document, drawing, information or communication (whether in written, oral or
electronic form) given to the Tenderer by the Commonwealth, the PDS Contractor or
anyone on the Commonwealth's behalf, whether or not owned by the Commonwealth which
is in any way connected with the Project which:
(c)
8.
(i)
(i)
by its nature is confidential; or
(ii)
the Tenderer knows or ought to know is confidential; and
everything recording, containing, setting out or making reference to the document, drawing,
information or communication (whether in written, oral or electronic form) described in
paragraph (b), including documents, notes, records, memoranda, materials, software, disks
and all other media, articles or things.
For the purposes of clauses 3 to 7, Confidential Information does not mean any document, drawing,
information or communication (whether in written, oral or electronic form) given to the Tenderer by the
Commonwealth, the PDS Contractor or anyone on the Commonwealth's behalf, whether or not owned
by the Commonwealth which:
(a)
L\315073128.5
is in the possession of the Tenderer without restriction in relation to its disclosure or use
before the date of its receipt from the Commonwealth, the PDS Contractor or anyone on the
Commonwealth's behalf;
Last updated: 5 June 2015
Department of Defence - Estate Works Program Suite - Minor Works Contract (EWP MIWC-1 2014) - [insert name of project
and works, as applicable]
(b)
is in the public domain otherwise than due to a breach of clauses 3 to 7; or
(c)
has been independently developed or acquired by the Tenderer.
9.
If the Tenderer consists of more than one entity, the provisions of this agreement jointly and severally
bind, and apply to, each such entities.
10.
This agreement is governed by the law of the State or Territory specified in item 5 of the Schedule.
Schedule
Item 1
Tenderer:
[INSERT NAME AND ABN BEFORE SIGNING
AGREEMENT]
Item 2
(Recital A)
Project:
Project No: [INSERT PROJECT NUMBER]
Project Name: Estate Works Program Minor Works Contract for
[INSERT NAME OF PROJECT]
Item 3
(Recital A))
PDS Contractor:
[INSERT NAME OF PDS CONTRACTOR]
Item 4
(Clause 2 and clause
4(c)(i))
Email and postal
address of the PDS
Contractor:
[INSERT EMAIL ADDRESS AND POSTAL ADDRESS OF
THE PDS CONTRACTOR]
Item 5
(Clause 10)
Governing Law:
[INSERT]
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Department of Defence - Estate Works Program Suite - Minor Works Contract (EWP MIWC-1 2014) - [insert name of project
and works, as applicable]
SIGNED as an agreement.
SIGNED for and on behalf of THE
COMMONWEALTH OF AUSTRALIA in the
presence of:
)
)
)
......................................................
Signature of Witness
...................................................
Signature of Authorised Officer
......................................................
Name of Witness in Full
...................................................
Name of Authorised Officer in Full
[S 127 OF CORPORATIONS ACT]
Executed by [INSERT NAME] in accordance with
section 127 of the Corporations Act 2001 (Cth):
Signature of director
Signature of company secretary/director
Full name of director
Full name of company secretary/director
[OR - AUTHORISED SIGNATORY OF COMPANY]
Signed for and on behalf of [INSERT NAME] by its
authorised signatory in the presence of:
Signature of witness
Signature of authorised signatory
Full name of witness
Full name of authorised signatory
[OR - INDIVIDUAL]
Signed by [INSERT NAME] in the presence of:
Signature of witness
Signature
Full name of witness
[THESE ARE EXAMPLE EXECUTION CLAUSES ONLY. INSERT APPROPRIATE EXECUTION
CLAUSE FOR TENDERER]
[THE TENDERER IS REQUESTED TO ENSURE THAT THE CONFIDENTIALITY AGREEMENT IS
COMPLETE, ACCURATE, DULY EXECUTED AND VALID]
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