DEED OF STANDING OFFER DEED OF STANDING OFFER IN RELATION TO ESTABLISHMENT OF AN EDUCATION, RESEARCH AND TRAINING PANEL

THE COMMONWEALTH OF AUSTRALIA, REPRESENTED BY THE ATTORNEY-GENERALS DEPARTMENT ABN 92 661 124 436 AND

CONTENTS
1. 1.1. 1.2. 1.3. 2. 2.1. 2.2. 2.3. 2.4. 3. 3.1. 3.2. 3.3. 4. 4.1. 4.2. 5. 5.1. 5.2. 5.3. 5.4. 5.5. Interpretation Definitions Interpretation Guidance on Construction of this Deed Formation Of Contracts Offer to provide Services Work Orders The Department not bound to order from Service Provider Notice of Inclusion of an Agency Fees Calculation of fees Invoices and payment Interest Termination Termination for convenience Termination for default General Provisions Waiver Assignment and novation Notices Compliance with Fair Work Principles Applicable law Schedule 1. Items Schedule 2. Contract Terms and Conditions Schedule 3. Services Schedule 4. Fees and Specified Personnel Schedule 5. Work Order Schedule 6. Notice of Inclusion 2 2 3 4 5 5 5 6 6 7 7 7 7 9 9 9 10 10 10 10 11 12 14 15 37 38 39 41

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DEED OF STANDING OFFER DEED OF STANDING OFFER IN RELATION TO ESTABLISHMENT OF AN EDUCATION, RESEARCH AND TRAINING PANEL

Date and Governing Law This Deed is dated This Deed is to be construed in accordance with the laws of the Australian Capital Territory. Parties This Deed is made between and binds the following Parties: THE COMMONWEALTH OF AUSTRALIA AS REPRESENTED BY THE ATTORNEY-GENERALS DEPARTMENT, ABN 92 661 124 436 (the Department), Robert Garran Offices, National Circuit, Barton ACT 2600 and (Service Provider) Purpose This Deed is made in the following context:
A.

The Department may require the provision of Services by the Service Provider.

B.

The Department has established a panel of suppliers to provide services of the kind set out in this Deed to the Department (Panel). The Service Provider is one of the suppliers on the Panel. The Service Provider has agreed that when it receives a Work Order from the Department in accordance with this Deed, the Service Provider must, in accordance with this Deed, provide the Services specified in the Work Order. The parties have agreed that Additional Agencies may order Services from the Supplier by establishing a standing off arrangement using the procedure set out in this deed. Operative Provisions The Parties to this Deed agree as follows:

C.

D.

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1. 1.1. 1.1.1.

Interpretation Definitions In this Deed, unless the context indicates otherwise: Additional Agency means any body or agency of the Commonwealth (including any bodies corporate created under the laws of the Commonwealth), means a weekday other than a public holiday in the Australian Capital Territory means the date specified as such in Item 1 means a contract for particular Ordered Services on the terms set out in Schedule 2 and formed between the Department and the Service Provider by the Department delivering a Work Order to the Service Provider of a person, partnership, trust, joint venture, corporation or other entity (Entity), means: a. the ability to cast or control the casting of more than 50% of the maximum number of votes that might be cast at any general meeting (or equivalent) of the Entity, or the holding of more than 50% of the issued ordinary share capital, the equity, or other ownership interest, in the Entity

Business Day Commencement Date Contract

Control

b.

Deed Departments Representative

means this Deed, the schedules to this Deed and any attachments means the person specified by name or position in Item 2 [Departments Representative and Address for Notices] of Schedule 1 or any substitute notified to the Service Provider in accordance with clause 5.3.4 means the later of the Initial End Date and the final day of any extension of the Term of this Deed under clause 2.1.4 means the latest date to which this Deed may be extended by the Department as specified in Item 1 [Timeframe] of Schedule 1 means the date specified in Item 1 [Timeframe] of Schedule 1 means a notice substantially in the form of Schedule 6
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End Date

Extension Date

Initial End Date Notice of Inclusion

Ordered Services

means the services specified in a Work Order and includes all: a. incidental services b. c. functions required for the proper provision of these services, and Contract Material specified in the Work Order

Panel Party Representative Service Providers Representative

means the panel of suppliers mentioned in Recital B means, as applicable, the Department or the Service Provider means the Departments Representative or the Service Providers Representative means the person specified by name or position in Item 3 [Service Providers Representative and Address for Notices] of Schedule 1 or any substitute notified to the Department in accordance with clause 5.3.4 means the services specified in Schedule 3 means the personnel specified in Schedule 4 means the term of this Deed, being the period from the Commencement Date to the End Date, and means an order, substantially in the form of Schedule 5, placed by the Department accepting the standing offer of the Service Provider to provide some or all of the Services.

Services Specified Personnel Term Work Order

1.2. 1.2.1.

Interpretation Capitalised terms that are contained in this Deed but are not defined in clause 1.1 have the meanings given to them in Schedule 2. In this Deed, unless the contrary intention appears: a. b. c. d. e. words importing a gender include any other gender words in the singular include the plural and words in the plural include the singular clause headings are inserted for convenient reference only and have no effect in limiting or extending the language of provisions to which they refer words importing a person include a partnership and a body whether corporate or otherwise all references to dollars are to Australian dollars

1.2.2.

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f.

a reference to any legislation or legislative provision (whether primary or subordinate) includes any statutory modification, substitution or reenactment of such legislation or legislative provision if any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning reference to an Item is to an Item in a schedule to this Deed the schedules and any attachments form part of this Deed if any conflict arises between the terms and conditions contained in the clauses of this Deed and any other part of this Deed (and attachments if any), the following order of priority will apply: i. the terms specified in the Work Order

g.

h. i. j.

ii. the terms and conditions specified in this Deed iii. the schedules, then iv. any attachments k. where this Deed provides that the Department may do something, it may do so in its absolute discretion, at any time and without having to give reasons reference to a schedule (or an attachment) is a reference to a schedule (or an attachment) to this Deed, including as amended or replaced from time to time by agreement in writing between the Parties, and

l.

m. a reference to writing is a reference to any representation of words, figures or symbols, whether or not in a hard copy paper form.
1.3. 1.3.1.

Guidance on Construction of this Deed This Deed records the entire agreement between the Parties in relation to its subject matter. This Deed may only be varied by a formal deed of variation executed by both Parties. Any reading down or severance of a particular provision does not affect the other provisions of this Deed. A provision of this Deed or any Contract will not be construed to the disadvantage of a Party solely on the basis that it proposed that provision.

1.3.2.

1.3.3.

1.3.4.

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2. 2.1. 2.1.1.

Formation Of Contracts Offer to provide Services The Service Provider irrevocably offers to provide the Services as and when directed by the Department by the issue to the Service Provider of a Work Order pursuant to this Deed. The Service Providers standing offer in clause 2.1.1 will remain open for acceptance by the Department for the Term in accordance with this Deed.

2.1.2.

2.1.3.

The Service Provider acknowledges that: a. b. it is one of a number of suppliers on the Panel which may be requested by the Department to provide the Services, and The Department may conduct a supplementary procurement process at any time and in its discretion, in order to increase the number of suppliers on the Panel.

2.1.4.

The Department may extend the Term of this Deed for a further period ending not later than the Extension Date by notice in writing delivered to the Service Provider not less than 30 days before the Initial End Date. Any extension will be on the same terms and conditions, and cover the same Services, as set out in this Deed. Work Orders The Service Provider acknowledges that when the Department requires any Services, the Department may approach the Service Provider [and/or one or more other suppliers on the Panel,] or may perform the Services itself. If the Department wishes to issue a Work Order to the Service Provider, the Department may consult with the Service Provider to determine its availability to perform the Services required, the scope of the Services, and the timing of Service delivery. If the Department seeks competitive quotes in the circumstance envisaged by clause 2.2.3, the Department may: a. b. seek quotes on a fixed price or other basis, and give suppliers (including the Service Provider) the opportunity to quote on the basis of the rates set out in their respective deeds of standing offer with the Department.

2.2. 2.2.1.

2.2.2.

2.2.3.

2.2.4.

The Department will submit each Work Order substantially in the format set out in Schedule 5.
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2.2.5.

The Service Providers standing offer provided in clause 2.1.1 will be accepted by the Department each time the Department sends a Work Order to the Service Provider. The Department will specify in the Work Order the precise Services to be performed and the other items listed in Schedule 5. Each Work Order sent to the Service Provider by the Department in accordance with this Deed will create a separate Contract between the Department and the Service Provider. The Parties agree that the terms of each Contract will be those set out in Schedule 2, which will be binding on the Parties whether or not a copy of the terms set out in Schedule 2 is attached to each Work Order. The Department not bound to order from Service Provider The Department: a. b. is not obliged to place any Work Order with the Service Provider or to request any volume of Services from the Service Provider, and may at any time purchase or acquire services the same as, or similar to, the Services [from another Supplier on the Panel or from any other person on such terms and conditions as the Department wishes, or may at any time itself undertake performance of services the same as or similar to the Services.

2.2.6.

2.2.7.

2.2.8.

2.3. 2.3.1.

c.

2.4. 2.4.1.

Notice of Inclusion of an Agency Except to the extent specifically agreed to the contrary by the Department, all information relating to this Deed or any related matter must only be made available to Additional Agencies by the Department Where an Additional Agency wishes to acquire any part of the Services it will first issue a Notice of Inclusion to the Service Provider. Upon the Service Providers receipt of a Notice of Inclusion, a separate Deed will be created between the Service Provider and the relevant Additional Agency which will be on terms identical to the terms of this Deed with the exception that: a. References to Commonwealth of Australia (as represented by the Attorney-Generals Department ABN 92 661 124 436) as the contracting party and the Department will be references to the relevant Additional Agency detailed in the Notice of Inclusion; Paragraph C in the Context will not apply;
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2.4.2.

2.4.3.

b.

c.

This clause 2.4 and the definitions of Additional Agency and Notice of Inclusion in clause 1.1.1 of this Deed will not apply; and The amendments set out in Attachment A of the Notice of Inclusion will apply

d.

2.4.4.

For the avoidance of doubt: a. any Official Order issued by the Department pursuant to this Deed will not form part of the deed formed pursuant to clause 2.5.3 (or any Contract formed pursuant to that deed); any Service Request, other request for proposal and quotation, or any Official Order or other action taken by the relevant Additional Agency will be pursuant to the deed between the Additional Agency and Services Provider and not this Deed.

b.

3. 3.1. 3.1.1.

Fees Calculation of fees The fees, allowances and costs due to the Service Provider for performing the Services will be specified in the Work Order and will be calculated in accordance with Schedule 4, or as otherwise agreed in the Work Order as a result of a competitive quote process or special circumstances. The fees specified in the Work Order will be inclusive of all expenses paid or incurred by the Service Provider. Only those fees, allowances and costs specified in the Work Order will be paid by the Department. Where Specified Personnel are nominated by the Department in a Work Order: a. b. those Specified Personnel must be utilised by the Service Provider as specified in the Work Order, and those Specified Personnel must be charged out at the rates specified in Schedule 4 unless otherwise agreed by the Department.

3.1.2.

3.1.3.

3.2. 3.2.1.

Invoices and payment Invoices for the Services must be submitted, together with any supporting documentation, in the manner specified in clause 3.1.3 of Schedule 2. Interest For the purpose of this clause 3.3: General Interest Charge Rate means the general interest charge rate determined under section 8AAD of the Taxation Administration Act 1953
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3.3. 3.3.1.

Small Business

the day that payment is made

3.3.2.

on the day payment is due, expressed as a decimal rate per day; means an enterprise that employs less than the full time equivalent of 20 persons (full time equivalent is as defined by the Australian Bureau of Statistics) on the day the contract is entered into. If the enterprise is an associated entity as defined in section 50AAA of the Corporations Act 2001, this test is applied to the group of associated entities as a whole; and is the day when the Agencys system generates a payment request into the banking system for payment to the Service Provider.

Subject to clause 3.3.4, the Department will pay interest on late payments to the Service Provider as follows: a. for payments made by the Department 30 days and up to 60 days after the amount became due and payable, only where the Service Provider issues a correctly rendered invoice for the interest; or for payments made by the Department more than 60 days after the amount became due and payable, the Department will pay the interest accrued together with the payment.

b.

3.3.3.

Interest payable under this clause 3.3 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 payment is made as represented by the following formula: SI = UA x GIC x D

where: SI UA = = simple interest amount; the unpaid amount; General Interest Charge Rate daily rate; and the number of days from the day after payment was due up to and including the day that payment is made

GIC = D =

3.3.4.

Clause 3.3 applies if at the date of entering into the contract: a. b. c. the Service Provider is a Small Business; the value of the contract is not more than A$1 million (GST inclusive); the amount of the interest payable exceeds A$10;
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d. the Services do not relate to a procurement of real property (including leases and licences); and e. the procurement is for a departmental item, not an administered item. If required, the Department will clarify for the Service Provider whether the procurement is for a departmental or administered item.

4. 4.1. 4.1.1.

Termination Termination for convenience The Department may, at any time and in its absolute discretion, by notice terminate this Deed or reduce the scope of the Services with immediate effect. Upon receipt of a notice of termination or reduction, the Service Provider must: a. b. c. stop or reduce work as specified in the notice take all available steps to minimise loss resulting from that termination or reduction, and continue work under any Contract for Ordered Services formed prior to the date of the notice of termination until such work is completed in accordance with that Contract.

4.1.2.

4.1.3.

Where there has been a termination under clause 4.1.1, the Department will be liable only, to pay any amount due under a Contract formed prior to the date of the notice of termination. For the avoidance of doubt, the Department will not be liable to pay any compensation to the Service Provider in the event of termination under clause 4.1.1. Termination for default Where a Party fails to satisfy any of its obligations under this Deed, the other Party, if it considers that the failure is: a. b. not capable of remedy may, by written notice, terminate this Deed immediately, or capable of remedy may, by written notice require that the failure be remedied within the time specified in the notice (not less than 10 days) and, if not remedied within that time, may terminate this Deed immediately by giving a second written notice.

4.1.4.

4.2. 4.2.1.

4.2.2.

The Department may also, by written notice terminate this Deed immediately (but without prejudice to any prior right of action or remedy which either Party has or may have) if: a. being a corporation, the Service Provider:
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i.

comes under one of the forms of external administration referred to in chapter 5 of the Corporations Act 2001 (Cth), or has an order made against it for the purpose of placing it under external administration, or

ii. is the subject of an application filed with an Australian court seeking the appointment of a liquidator, receiver or other external administrator, or b. c. being an individual, the Service Provider becomes bankrupt or enters into a scheme of arrangement with creditors the Service Provider suffers a change in Control or ownership which, in the Department's opinion, adversely affects the Service Providers ability to provide the Ordered Services, or the Service Provider ceases, or threatens to cease, to carry on business.

d.
5. 5.1. 5.1.1.

General Provisions Waiver A failure or delay by a Party to exercise any right it holds under this Deed will not operate as a waiver of that right. A single or partial exercise by a Party of any right it holds under this Deed will not prevent that Party from exercising that right again or exercising that right to the extent it has not already been exercised. In this clause 5.1, the word right means a right or remedy provided by this Deed or at law. Assignment and novation The Service Provider cannot novate its obligations and must not assign its rights under this Deed without, in either case, prior approval in writing from the Department. The Service Provider must not consult with any other person for the purposes of entering into an arrangement that will require novation of this Deed without first consulting the Department. Notices Any notice, request or other communication to be given or served pursuant to this Deed will be in writing and dealt with as follows: a. if given by the Service Provider to the Department - marked for the attention of the Departments Representative and addressed as specified in Item 2 [Departments Representative and Address for Notices] of Schedule 1, or

5.1.2.

5.1.3.

5.2. 5.2.1.

5.2.2.

5.3. 5.3.1.

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b.

if given by the Department to the Service Provider - marked for the attention of the Service Providers Representative and addressed as specified in Item 3 [Service Providers Representative and Address for Notices] of Schedule 1.

5.3.2.

A notice is to be: a. b. c. signed by the person giving the notice and delivered by hand signed by the person giving the notice and sent by pre-paid post, or transmitted electronically by the person giving the notice by electronic mail or facsimile transmission.

5.3.3.

A notice is deemed to be effective: a. b. c. if delivered by hand, upon delivery to the relevant address if sent by pre-paid ordinary post within Australia, upon the expiration of [2] Business Days after the date on which it was sent if transmitted electronically, upon actual receipt by the sender of an acknowledgment that the communication has been properly transmitted to the recipient, and in any event, if received after 5.00pm (local time in the place of receipt) on a Business Day or on a day that is not a Business Day, on the next Business Day.

d.

5.3.4.

Either Party may, by written notice to the other, change its Representative. Where the Service Provider wishes to change its Representative, the Service Provider must first obtain the Departments written consent (such consent not to be unreasonably withheld). Compliance with Fair Work Principles The Service Provider must comply, and as far as practicable must ensure its subcontractors comply, with all relevant requirements of the Fair Work Principles as set out in the Fair Work Principles User Guide (available at www.deewr.gov.au/fairworkprinciples), including by: a. b. complying with all applicable workplace relations, occupational health and safety and workers' compensation laws; informing the Agency of any adverse Court or Tribunal decision for a breach of workplace relations law, occupational health and safety laws or workers compensation laws made against it during the term of this deed and each Contract and any remedial action it has taken, or proposes to take, as a result of the decision;

5.4. 5.4.1.

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c.

providing the Agency any information the Agency reasonably requires to confirm that the Service Provider (and any subcontractor) is complying with the Fair Work Principles; and participating in all compliance activities associated with its legal obligations, including those arising under the Fair Work Principles. Compliance activities may include responding to requests for information and/or audits undertaken by the Commonwealth, its nominees and/or relevant regulators.

d.

5.4.2.

Compliance with the Fair Work Principles shall not relieve the Service Provider from its responsibility to comply with its other obligations under this deed and each Contract. If the Service Provider does not comply with the Fair Work Principles, without prejudice to any rights that would otherwise accrue to the Agency, the Agency, or any other Commonwealth agency, shall be entitled to publish details of the Service Provider's failure to comply (including the Service Provider's name) and to otherwise provide those details to other Commonwealth agencies. As far as practicable, the Service Provider must: a. not use a subcontractor in relation to this deed and each Contract where the subcontractor would be precluded from contracting directly with the Agency under the requirements of the Fair Work Principles; and ensure that all subcontracts impose obligations on subcontractors equivalent to the obligations specified in clauses 5.4.1 to Error! Reference source not found..

5.4.3.

5.4.4.

b.

5.5. 5.5.1.

Applicable law This Deed is to be construed in accordance with, and any matter related to it is to be governed by, the law of the Australian Capital Territory. The Parties submit to the jurisdiction of the courts of that Territory.

5.5.2.

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SIGNATURE PAGE EXECUTED as a Deed.

SIGNED SEALED AND ) DELIVERED for and on behalf of ) the COMMONWEALTH OF ) AUSTRALIA AS REPRESENTED BY THE ATTORNEY) GENERALS DEPARTMENT ) By ^insert name of signatory^ ) ^insert signatorys position^ )

IN THE PRESENCE OF ^insert name of witness^ DATE EXECUTED

) )

SIGNED SEALED AND ) DELIVERED for and on behalf of the SERVICE PROVIDER ) By ^insert name of signatory^ ) ^insert signatorys position^ )

IN THE PRESENCE OF ^insert name of witness^ DATE EXECUTED

) )

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SCHEDULE 1. ITEMS 1. Timeframe (see clauses 1.1 and 2.1) Initial End Date: Extension Date (clause 2.1.4):

2.

Departments Representative and Address for Notices (see clause 1.1 and 5.3) Departments Representative: Address for Notices: Service Providers Representative and Address for Notices (see clauses 1.1 and 5.3) Service Providers Representative:

Address for Notices:

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SCHEDULE 2. CONTRACT TERMS AND CONDITIONS Operative Provisions The following terms and conditions apply when a Contract is created by the delivery of a Work Order by the Department to the Service Provider.
1. 1.1. 1.1.1.

Interpretation Definitions In the Contract, unless the context indicates otherwise: Advisers means a Partys agents, contractors or advisers engaged in, or in relation to, the performance or management of the Contract means the Attorney-Generals Department means a weekday other than a public holiday in the Australian Capital Territory means the Commonwealth of Australia means any Material: a. provided by the Department to the Service Provider for the purposes of the Contract, or b. Confidential Information derived at any time from Material referred to in paragraph a

the Department Business Day Commonwealth Commonwealth Material

means: c. any information described as confidential in the Work Order, and d. information that is agreed between the Parties in writing after the Contract Commencement Date as constituting confidential information for the purposes of the Contract

Contract

Contract Commencement Date Contract End Date

means the contract created by the delivery by the Department of the Work Order to the Service Provider in accordance with clause 2.2.5 of the Deed means the commencement date specified in the Work Order means the later of the Contract Initial End Date and the final date of any extension of the Term of the Contract under clause 2.1.2 of this Contract

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Contract Extension Date

Contract Initial End Date Contract Material

means the latest date to which the Contract may be extended by the Department as specified in the Work Order means the date specified in the Work Order means any Material: e. created for the purposes of the Contract f. provided, or specified in the Work Order to be provided, to the Department as part of the Ordered Services, or derived at any time from the Material referred to in paragraph a or b

g. Deed

Departments Representative Existing Material

means the deed of standing offer dated ^insert date^ between the Department and the Service Provider in respect of the provision of Services has the meaning set out in clause 1.1 of the Deed means Material in existence at the Contract Commencement Date, or developed by the Service Provider independently of the performance of the Deed or the Contract and specified in the Work Order has the meaning given to it in the GST Act means A New Tax System (Goods and Services Tax) Act 1999 (Cth) includes: h. all copyright (including rights in relation to phonograms and broadcasts) i. all rights in relation to inventions, plant varieties, trademarks (including service marks), designs and circuit layouts, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields

GST GST Act Intellectual Property

j.

but does not include: k. l. Moral Rights the non-proprietary rights of performers, or

m. rights in relation to Confidential Information Material means any thing in relation to which Intellectual Property rights arise
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Moral Rights

includes the following rights of an author of copyright Material: n. the right of attribution of authorship o. p. the right of integrity of authorship, and the right not to have authorship falsely attributed

Official Information

means any information developed, received or collected by or on behalf of the Department to which the Service Provider gains access under or in connection with this Contract, and includes the Contract Material and the terms of the Contract means the services specified in the Work Order and includes all: q. incidental services r. s. functions required for the proper provision of these services, and Contract Material specified in the Work Order

Ordered Services

Party Personal Information

means, as applicable, the Department or the Service Provider has the same meaning as the term personal information in the Privacy Act 1988 (Cth), that is: information or an opinion (including information or an opinion forming part of a database), whether true or not and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion means: t. in relation to the Service Provider any natural person who is an officer, employee or Adviser of the Service Provider or of its subcontractors, including any Specified Personnel, and u. in relation to the Department - any natural person, other than a person referred to in paragraph (a), who is an officer, employee or Adviser of the Department

Personnel

Service Provider

means the Party identified as such in the Deed

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Service Providers Representative Specified Personnel Tax Invoice Taxable Supplies Term

has the meaning set out in clause 1.1 of the Deed means the persons specified as such in the Work Order has the meaning given to it in the GST Act has the meaning given to it in the GST Act means the term of the Contract, being the period from the Contract Commencement Date to the Contract End Date means any legal or equitable right, interest, power or remedy in favour of any person other than the Department or the Service Provider in connection with the Contract, including any right of possession, receivership, control or power of sale and any mortgage, charge, security or other interest, and means the order for services placed in accordance with clause 2 of the Deed that formed this Contract and includes any amendment or replacement to that order agreed in writing between the Parties.

Third Party Interest

Work Order

1.2. 1.2.1.

Interpretation Capitalised terms that are contained in this Contract but not defined in clause 1.1 have the meanings given to them in clause 1.1 of the Deed. In the Contract, unless the contrary intention appears: a. b. c. d. e. f. words importing a gender include any other gender words in the singular include the plural and words in the plural include the singular clause headings are inserted for convenient reference only and have no effect in limiting or extending the language of provisions to which they refer words importing a person include a partnership and a body whether corporate or otherwise all references to dollars are to Australian dollars a reference to any legislation or legislative provision (whether primary or subordinate) includes any statutory modification, substitution or reenactment of such legislation or legislative provision if any word or phrase is given a defined meaning, any other part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning the Work Order and any attachments form part of this Contract
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1.2.2.

g.

h.

i.

if any conflict arises between the terms and conditions contained in the clauses of this Contract and any part of the Work Order (and attachments if any), the terms and conditions of the Work Order prevail if any conflict arises between any part of the Work Order and any part of an attachment to this Contract, the Work Order prevails, and a reference to writing is a reference to any representation of words, figures or symbols, whether or not in a hard copy paper form.

j. k.

1.3. 1.3.1.

Guidance on Construction The Contract records the entire agreement between the Parties in relation to its subject matter. As far as possible all provisions of this Contract will be construed so as not to be void or otherwise unenforceable. If anything in this Contract is void or otherwise unenforceable then it will be severed and the rest of the Contract remains in force. A provision of this Contract will not be construed to the disadvantage of a Party solely on the basis that it proposed that provision. Commencement The terms of the Contract apply on and from the Contract Commencement Date. Performance Ordered Services During the Term, the Service Provider must: a. b. c. d. e. f. g. perform the Ordered Services to a standard recognised as a high professional standard by the industry to which the Service Provider belongs provide to the Department any Contract Material specified in the Work Order comply with all applicable Commonwealth and industry standards and guidelines comply with the time frame for the performance of the Ordered Services specified in the Work Order submit invoices and any required supporting documentation in the manner specified in clause 3.1 of this Contract obtain all approvals and licences necessary to perform the Ordered Services in accordance with the Contract, and adopt relevant best practice, including any Departmental, Commonwealth or industry standards and guidelines specified in the Work Order.
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1.3.2.

1.3.3.

1.3.4.

1.4. 1.4.1. 2. 2.1. 2.1.1.

2.1.2.

The Department may extend the Term of the Contract for a further period ending not later than the Contract Extension Date by notice in writing delivered to the Service Provider not less than 30 days before the Contract Initial End Date. Liaison with Departments Representative The Service Provider agrees: a. b. to liaise with the Departments Representative as reasonably required, and to comply with directions of the Departments Representative to the extent that they are consistent with this Contract.

2.2. 2.2.1.

2.3. 2.3.1.

Subcontractors The Service Provider agrees not to subcontract the performance of any part of the Ordered Services without the Departments prior written approval. The Department may impose any conditions it considers appropriate when giving its approval under clause 2.3.1. The Service Provider agrees to make available to the Department (if requested) details of all subcontractors engaged in the performance of the Ordered Services. The Service Provider acknowledges, and must inform all subcontractors, that the Department may publicly disclose the names of any subcontractors engaged in the performance of the Ordered Services. Specified Personnel The Service Provider agrees that the Specified Personnel will perform work in relation to the Ordered Services in accordance with this Contract. If Specified Personnel are unable to perform the work as required under clause 2.4.1, the Service Provider agrees to notify the Department immediately. The Service Provider agrees, at the request of the Department acting in its absolute discretion, to remove Personnel from work in relation to the Ordered Services. If clause 2.4.2 or clause 2.4.3 applies, the Service Provider will provide replacement Personnel acceptable to the Department at no additional cost and at the earliest opportunity. If the Service Provider does not comply with clause 2.4.4 above, the Department may terminate this Contract in accordance with clause 10.2 of this Contract.

2.3.2.

2.3.3.

2.3.4.

2.4. 2.4.1.

2.4.2.

2.4.3.

2.4.4.

2.4.5.

Page 20 Attorney-Generals Department ^contract title^ ^date^

2.5. 2.5.1.

Responsibility of Service Provider The Service Provider is fully responsible for the performance of the Ordered Services and for ensuring compliance with the requirements of this Contract, and will not be relieved of that responsibility because of any: a. b. c. d. involvement by the Department in the performance of the Ordered Services subcontracting of the Ordered Services acceptance by the Department of Specified Personnel, or payment made to the Service Provider on account of the Ordered Services.

2.6. 2.6.1.

Engagement of illegal workers prohibited The Service Provider must ensure that all its Personnel are at all times: a. b. Australian citizens, or in the case of persons who are not Australian citizens, not illegal workers,

and have been the subject of a criminal history check.

2.6.2.

The Service Provider must remove or cause to be removed any illegal worker from any involvement in the carrying out of the Ordered Services and arrange for their replacement at no cost to the Department, as soon as the Service Provider becomes aware of the involvement of the illegal worker or workers. The Service Provider must immediately notify the Department of the illegal worker and of the removal. Compliance with the Service Providers obligations under this clause 2.6 will not give rise to an entitlement to claim any delay or otherwise excuse the Service Provider from compliance with its obligations under the Contract. When requested by the Department, the Service Provider will provide evidence that it has taken all reasonable steps to ensure that it has complied and is complying with its obligations under this clause 2.6, including in relation to any subcontractors. The Service Provider must provide the Department with the evidence referred to in clause 2.6.4 within 7 days of receiving the Departments request. For the purposes of this clause, an illegal worker is a person who: a. b. c. has unlawfully entered and remains in Australia has lawfully entered Australia, but remains in Australia after his or her visa has expired, or is working in breach of his or her visa conditions.

2.6.3.

2.6.4.

2.6.5.

2.6.6.

Page 21 Attorney-Generals Department ^contract title^ ^date^

2.7. 2.7.1.

Step in rights Without prejudice to any other rights or remedies the Department may have, if the Service Provider fails to provide any part of the Ordered Services (NonPerformed Services) in accordance with the Contract for more than 48 hours, the Department may perform or have performed that part of the Ordered Services and all costs and outgoings incurred by the Department in excess of the amount the Service Provider would have been paid for the Non-Performed Services, must be reimbursed by the Service Provider to the Department upon demand. The Service Provider will not be entitled to receive any fees that relate to the Ordered Services performed by the Department or its nominee under clause 2.7.1. Fees Payment The Department will pay the Service Provider the fees specified in the Work Order following receipt of correctly rendered invoices: a. b. monthly in arrears, or (if specified otherwise in the Work Order) as set out in the Work Order.

2.7.2.

3. 3.1. 3.1.1.

3.1.2.

Invoices must not be rendered until the Department is satisfied that the Ordered Services to which the invoices relate have been delivered in accordance with the Contract and the disbursements to which the invoices relate are reimbursable under the Contract. An invoice will be correctly rendered for the purposes of this clause 3.1, if: a. b. the amount claimed is in respect of the Ordered Services actually performed and costs and expenses actually incurred all claims for reimbursement of disbursements are supported by receipts which clearly identify and substantiate the payment of those disbursements to the satisfaction of the Department, and the invoice is sent to the Department, either: i. ii. electronically, to invoices@ag.gov.au in PDF format (or above) or in hard copy, to GPO Box 1245, TUGGERANONG BC ACT 2901.

3.1.3.

c.

The Department's preference is to receive the invoices electronically at the address specified in clause 3.1.3.c.i. d. the invoice sets out: i. a description of the relevant Ordered Services (and date provided) and applicable disbursements paid (and date paid)

Page 22 Attorney-Generals Department ^contract title^ ^date^

ii. full details of all disbursements claimed in accordance with Schedule 4 of the Deed, or claimed under a quote accepted by the Department under clause 2 of the Deed (as applicable) iii. the title of the Contract iv. Work Order reference number (if applicable) v. Service Providers ABN vi. the Departments ABN or address vii. that it is a Tax Invoice viii. amount of GST included in the invoice value (if any), and ix. name of the Departments Representative.
3.1.4.

The Department will be entitled to delay any payment of fees or disbursements until the Service Provider has satisfied the Department that: a. b. c. delivery of the portion of the Ordered Services to which the fees relate has been completed to the satisfaction of the Department the fees have been calculated accurately and in accordance with the Contract, and the invoiced disbursements have been paid by the Service Provider and are reimbursable by the Department under the Contract.

3.1.5.

Where the Service Provider invoices the Department for any expense incurred by the Service Provider in connection with the provision of the Ordered Services, the amount invoiced to the Department must not include input tax credits claimed, or able to be claimed, by the Service Provider in connection with that expense. If an invoice is found to have been incorrectly rendered after payment, any overpayment will be a debt recoverable from the Service Provider and without limiting recourse to other available means, may be offset against any amount subsequently due by the Department to the Service Provider, whether under the Contract or otherwise. Without prejudice to its rights at common law or otherwise, the Department may deduct any payment or debt owed by the Service Provider to the Department under the Contract from the payment of any sum due to the Service Provider. Taxes, duties and government charges Except as provided by this clause 3.2, the Service Provider agrees to pay all taxes, duties and government charges imposed or levied in Australia or overseas in connection with the performance of this Contract.

3.1.6.

3.1.7.

3.2. 3.2.1.

Page 23 Attorney-Generals Department ^contract title^ ^date^

3.2.2.

Unless otherwise indicated, the fees and all other consideration for any supply made under this Contract are exclusive of any GST imposed on the supply. If one Party (the supplier) makes a taxable supply to the other Party (the recipient) under this Contract, on receipt of a tax invoice from the supplier, the recipient will pay without setoff an additional amount to the supplier equal to the GST imposed on the supply in question. No Party may claim or retain from the other Party any amount in relation to a supply made under this Contract for which the first Party can obtain an input tax credit or decreasing adjustment. Superannuation This Contract is entered into on the understanding that the Department is not required to make any superannuation contributions, unless stated to the contrary in Schedule 4. Interpretation In this clause Error! Reference source not found.: Official Resources includes: v. Official Information

3.2.3.

3.2.4.

3.3. 3.3.1.

3.4. 3.4.1.

w. people who work for or with the Department, and x. assets belonging to (even if in the possession of contracted providers) or in the Departments possession

Security Classified Resources

means Official Resources that, if compromised, could have adverse consequences for the Department and the Commonwealth

Security Incident means a security breach, violation, contact or approach from those seeking unauthorised access to Official Resources.
3.5. 3.5.1.

Confidentiality of Official Information Subject to clause 4.2.2, the Service Provider will not, without the Departments prior written authorisation, disclose any Official Information to any person (unless required to do so by law). The Service Provider is authorised to provide Official Information to those Personnel and subcontractors who require access for the purposes of this Contract. The Service Provider agrees, on request by the Department at any time, to arrange for the Personnel and subcontractors referred to in clause 3.5.2 to give a
Page 24 Attorney-Generals Department ^contract title^ ^date^

3.5.2.

3.5.3.

written undertaking in a form acceptable to the Department relating to the use and non-disclosure of Official Information.
3.5.4.

The Service Provider agrees to secure all Official Information against loss and unauthorised access, use, modification or disclosure. Other security obligations of Service Provider The Service Provider agrees: a. b. c. to ensure that all Personnel that require access to Security Classified Resources have obtained the appropriate security clearance to make its Personnel available to attend any security training provided by the Department to notify the Department immediately if it becomes aware that a Security Incident has occurred and otherwise implement the Departments procedures for Security Incident reporting as advised by the Department from time to time to cooperate with the Department, and comply with any directions issued by the Department, in relation to any Security Incident not to perform the Ordered Services outside Australia without the Departments prior written approval, and to comply with any variations or additions to those requirements as notified by the Department from time to time.

3.6. 3.6.1.

d. e. f.

3.6.2.

The Service Provider agrees to implement security procedures to ensure that it meets its obligations under this clause Error! Reference source not found. and will provide details of these procedures to the Department on request. Intellectual Property Use of Commonwealth Material The Department agrees to provide Commonwealth Material to the Service Provider as specified in the Work Order. The Department grants (or will procure) a royalty-free, non-exclusive licence for the Service Provider to use, reproduce and adapt the Commonwealth Material for the purposes of this Contract. The Service Provider agrees to use the Commonwealth Material strictly in accordance with any conditions, restrictions or directions of the Department. The Service Provider agrees, on expiration or earlier termination of this Contract, to deal with all Commonwealth Material as directed by the Department, subject to any requirement of law binding on the Service Provider.

4. 4.1. 4.1.1.

4.1.2.

4.1.3.

4.1.4.

Page 25 Attorney-Generals Department ^contract title^ ^date^

4.2. 4.2.1.

Rights in Contract Material Intellectual Property in all Contract Material vests or will vest in the Department. Clause 5.2.1 does not affect the ownership of Intellectual Property in: a. b. any Commonwealth Material incorporated into Contract Material, or any Existing Material.

4.2.2.

4.2.3.

The Service Provider grants to (or will procure for) the Department a permanent, irrevocable, royalty-free, world-wide, non-exclusive licence (including a right of sub-licence) to use, reproduce, adapt and exploit any Existing Material in conjunction with the Contract Material. The Service Provider agrees, on request by the Department, to create, sign, execute or otherwise deal with any document necessary or desirable to give effect to this clause 4.2. The Service Provider warrants that: a. b. it is entitled, or it will be entitled at the relevant time,

4.2.4.

4.2.5.

to deal with the Intellectual Property in the Contract Material and Existing Material in the manner provided for in this clause 4.2.
4.3. 4.3.1.

Moral Rights In this clause 4.3: Permitted Acts means any of the following classes or types of acts or omissions: y. using, reproducing, adapting or exploiting all or any part of the Contract Material, with or without attribution or authorship z. supplementing the Contract Material with any other Material

aa. using the Contract Material in a different context to that originally envisaged, but does not include false attribution of authorship.
4.3.2.

Where the Service Provider is a natural person and the author of the Contract Material, he or she consents to the performance of the Permitted Acts by the Department or any person claiming under or through the Department.

Page 26 Attorney-Generals Department ^contract title^ ^date^

4.3.3.

Where clause 4.3.2 does not apply, the Service Provider agrees to obtain from each author a written consent which extends directly or indirectly to the performance of the Permitted Acts by the Department or any person claiming under or through the Department (whether occurring before or after the consent is given) and, on request, to provide the executed original of any such consent to the Department. This clause 4.3 does not apply to any Commonwealth Material incorporated in the Contract Material. Confidential Information of the Service Provider Confidential Information not to be disclosed Subject to clause 5.2, the Department will not, without the prior written authorisation of the Service Provider, disclose any Service Providers Confidential Information to a third party. Exceptions to obligations The obligations of the Department under clause 5.1.1 will not be taken to have been breached to the extent that the Service Providers Confidential Information: a. b. c. d. e. f. g. is disclosed by the Department to its Personnel solely in order to comply with its obligations, or to exercise its rights, under this Contract is disclosed to the Department internal management Personnel, solely to enable effective management or auditing of Contract-related activities is disclosed by the Department to the responsible Minister is disclosed by the Department in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia is shared by the Department within the Departments organisation, or with another agency, where this serves the Commonwealths legitimate interests is authorised or required by law to be disclosed, or is in the public domain otherwise than due to a breach of this clause 5.

4.3.4.

5. 5.1. 5.1.1.

5.2. 5.2.1.

5.2.2.

Where the Department discloses the Service Providers Confidential Information to another person pursuant to clauses 5.2.1.a - 5.2.1.e, the Department will notify the receiving person that the information is confidential. In the circumstances referred to in clauses 5.2.1.a, 5.2.1.b and 5.2.1.e, the Department agrees not to provide the information unless the receiving person agrees to keep the information confidential. The Service Provider agrees to provide all reasonable assistance with respect to the release of the Service Providers Confidential Information where disclosure is required under clause 6.2.1d.
Page 27 Attorney-Generals Department ^contract title^ ^date^

5.2.3.

5.2.4.

5.3. 5.3.1.

Period of confidentiality The obligations under this clause 5 will continue, notwithstanding the expiry or termination of the Contract or the Deed. Privacy Interpretation In this clause 7: Information Privacy Principle has the same meaning as it has in the Privacy Act 1988 (Cth).

6. 6.1. 6.1.1.

6.2. 6.2.1.

Obligations of Service Provider in relation to privacy The Service Provider agrees, in providing the Ordered Services: a. b. not to do any act or engage in any practice which, if done or engaged in by the Department, would be a breach of an Information Privacy Principle, and to comply with any directions, guidelines, determinations or recommendations of the Department, to the extent that they are consistent with the Information Privacy Principles.

6.2.2.

The Service Provider agrees to notify the Department immediately if it becomes aware of a breach or possible breach of any of its obligations under this clause 7. Period of application The obligations under this clause 7 will continue, notwithstanding the expiry or termination of this Contract or of the Deed. Dealing with Copies Interpretation In this clause 7: Copy means any document, device, article or medium in which Commonwealth Material, Contract Material, or Official Information is embodied.

6.3. 6.3.1.

7. 7.1. 7.1.1.

7.2. 7.2.1. 7.2.2.

Dealings with Copies Property in all Copies vests or will vest in the Department. The Service Provider agrees to establish and maintain procedures to secure the Copies against loss and unauthorised access, use, modification or disclosure.

Page 28 Attorney-Generals Department ^contract title^ ^date^

7.2.3.

The Service Provider agrees, on expiration or termination of this Contract, to deal with all Copies as directed by the Department, subject to any requirement of law binding on the Service Provider. Liability Proportionate liability regimes excluded To the extent permitted by law, the operation of any legislative proportionate liability regime is excluded in relation to any claim against the Service Provider under or in connection with this Contract. Indemnity The Service Provider indemnifies the Department from and against any: a. b. c. cost or liability incurred by the Department loss of or damage to property of the Department, or loss or expense incurred by the Department in dealing with any claim against it including legal costs and expenses on a solicitor/own client basis and the cost of time spent, resources used or disbursements paid by the Department,

8. 8.1. 8.1.1.

8.2. 8.2.1.

arising from either: d. e. a breach by the Service Provider of this Contract, or an act or omission involving fault on the part of the Service Provider or its Personnel in connection with this Contract.

8.2.2.

The Service Providers liability to indemnify the Department under clause 8.2.1 will be reduced proportionately to the extent that any act or omission involving fault on the part of the Department or its Personnel contributed to the relevant cost, liability, loss, damage or expense. The right of the Department to be indemnified under this clause 8.2 is in addition to, and not exclusive of, any other right, power or remedy provided by law, but the Department is not entitled to be compensated in excess of the amount of the relevant cost, liability, loss, damage or expense. In this clause 8.2, references to the Department include officers, employees and agents of the Department. Dispute Resolution Procedure for dispute resolution The Parties agree that a dispute arising under this Contract will be dealt with as follows:

8.2.3.

8.2.4.

9. 9.1. 9.1.1.

Page 29 Attorney-Generals Department ^contract title^ ^date^

a. b. c. d.

the Party claiming that there is a dispute will give to the other Party a notice setting out the nature of the dispute within five Business Days each Party will nominate a representative not having any prior involvement in the dispute the representatives will try to settle the dispute by direct negotiation between them failing settlement within a further 10 Business Days, the Parties may agree to refer the dispute to an independent third person with power: i. to intervene and direct some form of resolution, in which case the Parties will be bound by that resolution, or

ii. to mediate and recommend some form of non-binding resolution e. f. the Parties will cooperate fully with any process instigated under clause 9.1.1.d in order to achieve a speedy resolution, and if a resolution is not reached within a further 20 Business Days, either Party may commence legal proceedings.

9.2. 9.2.1.

Costs Each Party must bear its own costs of complying with this clause 10 and the Parties must bear equally the cost of any third party engaged under clause 9.1. Continued performance Despite the existence of a dispute, the Service Provider must (unless requested in writing by the Department not to do so) continue to perform the Ordered Services. Exemption This clause 10 does not apply to: a. b. c. action by the Department under or purportedly under clause 11.1 of this Contract action by either Party under or purportedly under clause 11.2 of this Contract, or either Party commencing legal proceedings for urgent interlocutory relief.

9.3. 9.3.1.

9.4. 9.4.1.

10. 10.1. 10.1.1.

Termination or reduction in scope of Services Termination for convenience The Department may by notice, at any time and in its absolute discretion, terminate this Contract or reduce the scope of the Ordered Services immediately. The Service Provider agrees, on receipt of a notice of termination or reduction:
Page 30 Attorney-Generals Department ^contract title^ ^date^

10.1.2.

a. b. c.

to stop or reduce work as specified in the notice to take all available steps to minimise loss resulting from that termination or reduction to continue to protect Commonwealth Material, Official Information, Security Classified Resources and Contract Material from unauthorised disclosure, and to continue work on any part of the Ordered Services not affected by the notice.

d.

10.1.3.

In the event of termination under clause 10.1.1, the Department will be liable only: a. b. to pay any amount due under the Contract and relating to Ordered Services completed before the effective date of termination, and to reimburse any expenses not covered under clause 11.1.3a which the Service Provider unavoidably incurs relating entirely to the termination.

10.1.4.

The Department will not be liable to pay amounts under clause 11.1.3 which would, added to any fees already paid to the Service Provider under this Contract, together exceed the fees set out in the Work Order. In the event of a reduction in the scope of the Ordered Services under clause 10.1.1, the Departments liability to pay fees or meet costs under clause 3 of this Contract will, unless there is agreement in writing to the contrary, reduce in accordance with the reduction in the Ordered Services. The Service Provider will not be entitled to compensation for loss of prospective profits. Termination for default If a Party fails to satisfy any of its obligations under this Contract, then the other Party - if it considers that the failure is: a. b. not capable of remedymay, by written notice, terminate the Contract immediately, or capable of remedymay, by written notice require that the failure be remedied within the time specified in the notice and, if not remedied within that time, may terminate the Contract immediately by giving a second written notice.

10.1.5.

10.1.6.

10.2. 10.2.1.

10.2.2.

The Department may also by written notice terminate this Contract immediately (but without prejudice to any prior right of action or remedy which either Party has or may have) if: a. being a corporation the Service Provider:

Page 31 Attorney-Generals Department ^contract title^ ^date^

i.

comes under one of the forms of external administration referred to in chapter 5 of the Corporations Act 2001 (Cth), or has an order made against it for the purpose of placing it under external administration, or

ii. is the subject of an application filed with an Australian court seeking the appointment of a liquidator, receiver or other external administrator b. c. being an individual, the Service Provider becomes bankrupt or enters into a scheme of arrangement with creditors the Service Provider suffers a change in Control or ownership which, in the Department's opinion, adversely affects the Service Providers ability to provide the Ordered Services, or the Service Provider ceases, or threatens to cease, to carry on business.

d.
11. 11.1. 11.1.1.

Notices Format, addressing and delivery A notice under this Contract is only effective if it is in writing, and dealt with as follows: a. if given by the Service Provider to the Department marked for the attention of the Departments Representative at the address specified in the Deed or as otherwise notified to the Department, or if given by the Department to the Service Provider marked for the attention of the Service Providers Representative at the address specified in the Deed or as otherwise notified by the Service Provider.

b.

11.1.2.

A notice is to be: a. b. c. signed by the person giving the notice and delivered by hand signed by the person giving the notice and sent by pre-paid post, or transmitted electronically by the person giving the notice by electronic mail or facsimile transmission.

11.2. 11.2.1.

When effective A notice is deemed to be effective: a. b. c. if delivered by hand, upon delivery to the relevant address if sent by pre-paid ordinary post within Australia, upon the expiration of [2] Business Days after the date on which it was sent if transmitted electronically, upon actual receipt by the sender of an acknowledgement that the communication has been properly transmitted to the recipient, and

Page 32 Attorney-Generals Department ^contract title^ ^date^

d.

in any event, if received after 5.00pm (local time in the place of receipt) on a Business Day or on a day that is not a Business Day, on the next Business Day

12. 12.1. 12.1.1.

General provisions Occupational health and safety The Service Provider agrees, in carrying out this Contract, to comply with: a. b. all relevant legislation, codes of practice and national standards relating to occupational health and safety, and all applicable policies and procedures relating to occupational health and safety including those that apply to the Departments premises when using those premises.

12.1.2.

In the event of any inconsistency between any of the policies and procedures referred to in clause 12.1.1.b, the Service Provider will comply with those policies and procedures that produce the highest level of health and safety. Audit and access The Service Provider agrees: a. to give the Departments Representative, or any persons authorised in writing by the Departments Representative, access to premises where the Ordered Services are being performed, and to permit those persons to inspect and take copies of any Material relevant to the Ordered Services.

12.2. 12.2.1.

b.

12.2.2.

The rights referred to in clause 12.2.1. are subject to: a. b. c. the Department providing reasonable prior notice the reasonable security procedures in place at the premises, and if appropriate, execution of a deed of confidentiality by the persons to whom access is given.

12.2.3.

The Auditor-General and the Privacy Commissioner are persons authorised for the purposes of this clause 12.2. This clause 12.2 does not detract from the statutory powers of the AuditorGeneral or the Privacy Commissioner. Insurance In this clause 13.3: Required Insurances means the following insurances: bb. public liability insurance in respect of each
Page 33 Attorney-Generals Department ^contract title^ ^date^

12.2.4.

12.3. 12.3.1.

occurrence, for at least $ ^insert amount^ million cc. professional indemnity insurance in respect of each occurrence, for at least $ ^insert amount^ million, and dd. workers compensation insurance as required by law.
12.3.2.

The Service Provider agrees: a. b. to effect and maintain the Required Insurances, and on request, to provide proof of the Required Insurances acceptable to the Department.

12.3.3.

This clause 12.3 continues in operation for so long as any obligations remain in connection with the Contract, or in the case of professional indemnity insurance, for a period of seven (7) years after the expiry or earlier termination of the Contract. Extension of provisions to subcontractors and Personnel In this clause 12.4: Requirement means an obligation, condition, restriction or prohibition binding on the Service Provider under this Contract.

12.4. 12.4.1.

12.4.2.

The Service Provider agrees to ensure that: a. b. its subcontractors and Personnel comply with all relevant Requirements, and any contract entered into in connection with this Contract imposes all relevant Requirements on the other Party.

12.4.3.

The Service Provider agrees to exercise any rights it may have against any of its subcontractors, Personnel or third parties in connection with a Requirement in accordance with any direction by the Department. Conflict of interest In this clause 12.5: Conflict means any matter, circumstance, interest, or activity affecting the Service Provider, its Personnel or subcontractors which may or may appear to impair the ability of the Service Provider to provide the Ordered Services to the Department diligently and independently.

12.5. 12.5.1.

12.5.2.

The Service Provider warrants that, to the best of its knowledge after making diligent inquiry, at the Commencement Date no Conflict exists or is likely to arise in the performance of the Ordered Services.

Page 34 Attorney-Generals Department ^contract title^ ^date^

12.5.3.

If, during the period of this Contract a Conflict arises, or appears likely to arise, the Service Provider agrees: a. b. c. to notify the Department immediately to make full disclosure of all relevant information relating to the Conflict, and to take any steps the Department reasonably requires to resolve or otherwise deal with the Conflict.

12.5.4.

If the Service Provider does not notify the Department or is unwilling or unable to resolve or deal with the Conflict as required, the Department may terminate this Contract in accordance with the provisions of clause 10.2 of this Contract. The Service Provider agrees that it will not, and will use its best endeavours to ensure that any of its Personnel do not, engage in any activity or obtain any interest during the term of the Contract that is likely to conflict with or restrict the Service Provider in providing the Ordered Services to the Department fairly and independently. Relationship of Parties The Service Provider is not by virtue of this Contract an officer, employee, partner or agent of the Department, nor does the Service Provider have any power or authority to bind or represent the Department. The Service Provider agrees: a. b. not to misrepresent its relationship with the Department, and not to engage in any misleading or deceptive conduct in relation to the Ordered Services.

12.5.5.

12.6. 12.6.1.

12.6.2.

12.7. 12.7.1.

Waiver A failure or delay by a Party to exercise any right or remedy it holds under this Contract or at law does not operate as a waiver of that right. A single or partial exercise by a Party of any right or remedy it holds under this Contract or at law does not prevent the Party from exercising the right again or to the extent it has not fully exercised the right. Variation A variation of this Contract is binding only if agreed in writing and signed by the Parties. Assignment The Service Provider cannot assign its obligations, and agrees not to assign its rights, under this Contract without the Departments prior written approval.
Page 35 Attorney-Generals Department ^contract title^ ^date^

12.7.2.

12.8. 12.8.1.

12.9. 12.9.1.

12.10. 12.10.1.

Survival Unless the contrary intention appears, the expiry or earlier termination of this Contract will not affect the continued operation of any provision relating to: a. b. c. d. e. f. licensing of Intellectual Property confidentiality privacy audit security an indemnity,

or any other provision which expressly or by implication from its nature is intended to continue.
12.11. 12.11.1.

Compliance with Legislation In this clause 12.11: Legislation means a provision of a statute or subordinate legislation of the Commonwealth, or of a State, Territory or local authority.

12.11.2.

The Service Provider agrees to comply with any Legislation applicable to its performance of this Contract. Applicable law This Contract is to be construed in accordance with, and any matter related to it is to be governed by, the law of the Australian Capital Territory. The Parties submit to the jurisdiction of the courts of that Territory.

12.12. 12.12.1.

12.12.2.

Page 36 Attorney-Generals Department ^contract title^ ^date^

SCHEDULE 3. SERVICES

^Insert description and specifications of the Services required to be provided by the Service Provider under the Deed^.

Page 37 Attorney-Generals Department ^contract title^ ^date^

SCHEDULE 4. FEES AND SPECIFIED PERSONNEL Fees Unless otherwise provided in the Work Order, the fees to be paid to the Service Provider for the Ordered Services specified in the Work Order are to be calculated as follows: ^Specify details of how the GST exclusive fees to be paid to the Service Provider will be calculated^. The Department will reimburse the following expenses (other than travel expenses) incurred by the Service Provider in the performance of the Ordered Services: ^Indicate whether the Department will cover any expenses incurred by the Service Provider in the performance of the Services^. Specified Personnel The following are Specified Personnel for the purposes of this Deed unless otherwise agreed in writing by the Department. These Specified Personnel will be charged out by the Service Provider at the following rates:

^Name^: ^Name^: ^Name^:

^Rate^ ^Rate^ ^Rate^

The above rates will remain fixed for a period of 12 months from the date of this Deed. Twelve months after the date of this Deed, and at the expiry of each subsequent 12 month period during the Term, the Service Providers rates may be increased by no more than the percentage increase in the Consumer Price Index (All Groups) for the previous 12 month period.

Page 38 Attorney-Generals Department ^contract title^ ^date^

SCHEDULE 5. WORK ORDER WORK ORDER1 for ^insert brief description of Services required^ Reference number [ ^insert SO id number^] Context This Work Order is placed on ^insert date^ (Contract Commencement Date). This Work Order is placed pursuant to and subject to the terms and conditions of the deed of standing offer between the Department and ^insert name of Service Provider^ dated ^insert date of Deed^.

Dates The Contract Initial End Date specified in this Work Order is ^Specify Date^. The Contract Extension Date specified in this Work Order is ^Specify Date^. Services and Contract Material ^Insert description and specifications of the Services and/or Contract Material required to be provided by the Service Provider^. ^Insert a specific description of the Service Providers obligations, the work to be performed, expected outcomes and clear performance measures/milestones by which standards can be tested^. The Contract Material to be created or developed by the Service Provider in providing the Ordered Services is ^Specify^. Specified Personnel ^Specify details of any particular individuals nominated to undertake and perform the Services described above in this Work Order, or to provide particular Contract Material^. Fees and Invoices ^Insert details of the fees to be paid by the Department to the Service Provider^.

The offer to provide the Services under the Deed is accepted and the terms of the Contract in

Schedule 2 of the Deed apply once the Work Order is delivered by the Department to the Service Provider.
Page 39 Attorney-Generals Department ^contract title^ ^date^

Existing Material ^Specify any pre existing Material for which Intellectual Property is not to vest in the Department^. Commonwealth Material ^Insert details of the Material to be provided to the Service Provider by the Department to perform the Services specified in this Work Order^. ^Also specify any conditions or restrictions attaching to the Service Providers use of Commonwealth Material^. Confidential Information Service Providers Confidential Information 1. Contract Provisions/Schedules/Attachments Item ^Insert relevant items^ Period of Confidentiality

2.

Contract related material Item ^Insert relevant items^ Period of Confidentiality

Signature

SIGNED by and on behalf of the ) COMMONWEALTH OF AUSTRALIA AS ) REPRESENTED BY THE ATTORNEY- ) GENERALS DEPARTMENT ) By ^insert name of signatory^ ) ^insert signatorys position^ ) Date )

IN THE PRESENCE OF ^insert name of witness^ Date

) )

Page 40 Attorney-Generals Department ^contract title^ ^date^

SCHEDULE 6. NOTICE OF INCLUSION Deed of Standing Offer between [Additional Agency Full Name] and [Supplier] To: [insert name and ABN of Supplier] [insert address for notices as per the deed of standing offer] Parties 1. 2. [Insert full name, ABN and address of Additional Agency] (the Additional Agency) [Insert full name, ABN and address of Supplier] (the Supplier) Context A. The Commonwealth of Australia represented by the Attorney-Generals Department and the Supplier entered into Deed of Standing Offer dated [insert date] (Original Deed of Standing Offer) for the Supplier to supply and deliver the Services to the Department. Under the Original Deed of Standing Offer, the Supplier offers to provide the Services to Additional Agencies. The Additional Agency wishes to acquire the Services from the Supplier from time to time on the same terms as the Original Deed of Standing Offer and this Notice of Inclusion. Defined Terms Terms that are used in this Notice of Inclusion that are defined in the Original Deed of Standing Offer have the meaning given to them in the Original Deed of Standing Offer. Notice of Inclusion The Additional Agency issues this Notice of Inclusion to the Supplier pursuant to clause 2.4 of the Original Deed of Standing Offer Upon receipt of this Notice of Inclusion by the Service Provider (which the Service Provider will confirm in writing) a separate Deed is created between the

B. C.

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Additional Agency and the Service Provider which is on the same terms as the Original Deed of Standing Offer, as amended by: a. b. Clause 2.4.3 of the Original Deed of Standing Offer; and Attachment A to this Notice of Inclusion

SIGNED for and on behalf of [insert full name of Additional Agency] by:

) )

Name and position of Signatory

Signature

In the presence of:

Name of witness

Signature of witness

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Attachment A to Notice of Inclusion Schedule 1 of the Original Deed of Standing Offer is amended insofar as it is applicable to the Deed between the Additional Agency and the Service Provider formed by this Notice of Inclusion: Item 2 of Schedule 1 is replaced with the following: Additional Agencys Representative and Address for Notices Additional Agencys Representative: Address for Notices: Clause 3.1.3 of Schedule 2 is replaced with the following: [The Additional Agency should specify its specific invoicing and payment requirements in this section. If the invoice requirements are the same as the Original Deed of Standing Offer, the Additional Agency should delete this section]

Page 43 Attorney-Generals Department ^contract title^ ^date^