Australian Government

Accounting and Related Professional Services Contract

Standard Form Contract
Commonwealth of Australia as represented by [insert Name of Agency] (the Customer) ABN [insert Agency ABN]

[Insert name of Service Provider] (the Service Provider) ACN [insert Service Provider ACN] For the provision of Services in relation to [insert]

Accountancy and Related Professional Services Contract

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Contract Information Agreed Terms Part 1 Services

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. Definitions and interpretation Provision of Services Specified Personnel Subcontracting Commonwealth Material Intellectual Property Rights Moral Rights Fees, expenses and assistance Taxes and GST Indemnity Insurance Confidentiality Conflict of interest Service Provider Warranties and Disclosure Compliance with Laws Security Audit and access requirements Dispute resolution Termination for convenience Termination for default Termination generally Notices and other communications Miscellaneous Governing law and jurisdiction

3 4 4
4 8 9 9 9 10 11

Part 2 General requirements

11
11 12 13 14 14 14 15 15 16 16 16 17 17 18 18 19 19

Schedule 1 Statement of Work (SOW)

Item A [Services] Item B [Contract Material] Item C [Commencement and Timeframe] Item D [Fees] Item E [Expenses and Costs] Item F [Invoices] Item G [Background Material] Item H [Facilities and Assistance] Item I [Standards and Best Practice] Item J [Specified Personnel] Item K [Contract Managers]

20
20 20 20 20 20 20 20 21 21 21 21

Schedule 2 Change Order Signing page

22 23

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Contract Information
Parties
Name Commonwealth of Australia as represented by [insert Name of Agency] ABN: [insert Agency ABN] Address Short form name [insert Business Address of Agency] Customer

Name

[insert Name of Service Provider] ACN: [insert Service Provider ACN]

Address Short form name

[insert Business Address of Service Provider] Service Provider

Background
A B

The Customer requires the provision of certain services. The Service Provider has fully informed itself on all aspects of the work required to be performed and has: (i) (ii) submitted the proposal and quotation entitled [insert name] and dated [insert date]; and represented that it has the requisite skills and experience to perform that work.

The Customer has agreed to engage the Service Provider to provide the Services on the terms and conditions contained in this Contract.

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Agreed Terms
Part 1 Services
1. Definitions and interpretation
1.1 In this Contract, except where the contrary intention is expressed, the following definitions are used: means the standards of that name maintained by the Australian Accounting Standards Board (referred to in section 227 of the Australian Securities and Investments Commission Act 2001 (Cth)) of other accounting standards which are generally accepted and consistently applied in Australia. any Material, other than the Contract Material, made available by a party for the purpose of this Contract on or following the Commencement Date and includes: (a) (b) Third Party Material; and Material identified as Background Material in Item G [Background Material].

Accounting Standards

Background Material

Business Day

a day other than a Saturday, Sunday, public holiday in the place where an obligation is to be performed or a notice is to be received (as relevant) or a day during the period from (and including) 24 December in any year to (and including) the first Monday in the following January. the form set out in Schedule 2. the date on which this Contract is signed by the last party to do so, unless otherwise specified in Item C [Commencement and Timeframe]. the Commonwealth of Australia. any Material: (a) provided by the Customer to the Service Provider for the purposes of this Contract; or (b) copied or derived at any time from the Material referred to in paragraph (a). the Commonwealth Protective Security Manual 2005, as amended or replaced from time to time.

Change Order Commencement Date Commonwealth Commonwealth Material

Commonwealth Protective Security Manual Completion Date Confidential Information

the date (if any) specified as the Completion Date in Item C. information that is by its nature confidential; and (a) is designated by a party, by notice in writing after the Commencement Date, as confidential information for the purposes of this Contract; (b) a party knows or ought to know is confidential,

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but does not include: (c) information which is or becomes public knowledge other than by breach of the Contract or any other confidentiality obligation.

Conflict

any existing circumstances which constitute an actual or potential conflict between the interests of the Service Provider and those of the Customer or the duties of the Service Provider to the Customer and its duties to any other person, in relation to the performance of the Services. a person specified (by name or position) in Item K [Contract Managers], or any substitute notified by a party from time to time. this agreement between the Customer and the Service Provider, as amended from time to time, and includes its schedules and any attachments. any Material: (a) (b) (c) created for the purpose of this Contract; provided or required to be provided to the Customer as part of the Services; or copied or derived at any time from the Material referred to in paragraphs (a) or (b).

Contract Manager Contract

Contract Material

Controller Copy

Has the meaning it has in the Corporations Act 2001. any document, device, article or medium in which Commonwealth Material, Contract Material or the Customers Confidential Information is embodied. the party specified in the Contract Information and includes any department or agency of the Commonwealth which is responsible for administering this Contract or receiving Services under this contract. any item to be supplied by the Service Provider under this Contract and includes any material set out in Item B [Contract Material]. in relation to a person or category of persons specified in Item D [Fees] (as the case may be), the hours specified in relation to that person or category of persons, if applicable. the fees described in Item D [Fees] payable by the Customer to the Service Provider in accordance with clause 8.1. has the same meaning as it has in section 195-1 of the GST Act. A New Tax System (Goods and Services Tax) Act 1999. A person is Insolvent if: (a) it is (or states that it is) an insolvent under administration or insolvent (each as defined in the Corporations Act); or

Customer

Deliverable

Estimated Allowable Hours Fees

GST GST Act Insolvent

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(b)

it is in liquidation, in provisional liquidation, under administration or wound up or has had a Controller appointed to its property; or it is subject to any arrangement, assignment, moratorium or composition, protected from creditors under any statute or dissolved (in each case, other than to carry out a reconstruction or amalgamation while solvent on terms approved by the other parties to this agreement); or an application or order has been made (and in the case of an application, it is not stayed, withdrawn or dismissed within 30 days), resolution passed, proposal put forward, or any other action taken, in each case in connection with that person, which is preparatory to or could result in any of (a), (b) or (c) above; or it is taken (under section 459F(1) of the Corporations Act) to have failed to comply with a statutory demand; or it is the subject of an event described in section 459C(2)(b) or section 585 of the Corporations Act (or it makes a statement from which another party to this agreement reasonably deduces it is so subject); or it is otherwise unable to pay its debts when they fall due; or something having a substantially similar effect to (a) to (g) happens in connection with that person under the law of any jurisdiction.

(c)

(d)

(e) (f)

(g) (h)

Instalment

an instalment of Fees payable under clause 8.1 in relation to part of the Services. all intellectual property rights, including but not limited to, the following rights: (a) (b) (c) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks) and domain names. any application or right to apply for registration of any of the rights referred to in paragraph (a); and all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhere,

Intellectual Property Rights

whether or not such rights are registered or capable of being registered.

Interest

interest calculated at an interest rate equal to the general interest charge rate for a day pursuant to section 8AAD of the Taxation Administration Act 1953, calculated on a simple basis. the invoice or invoices (as the case may be) to be provided by the Service Provider to the Customer under this Contract. any applicable statute, regulation, by-law, ordinance or subordinate legislation in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local government, and includes the common law and rules of equity as applicable from time to time, any applicable Australian industry codes.

Invoice

Law

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Loss or Losses

liabilities, expenses, losses, damages and costs (including but not limited to legal costs on a full indemnity basis, whether incurred by or awarded against a party) and consequential and indirect losses and damages including those arising out of any third party claim. documents, equipment, software (including source code and object code), goods, information and data stored by any means, including all copies and extracts of the same. a Milestone described in Item D [Fees] (if applicable). the right of integrity of authorship (that is, not to have a work subjected to derogatory treatment), the right of attribution of authorship of a work, and the right not to have authorship of a work falsely attributed, as defined in the Copyright Act 1968 (Cth). any fixed date to be met by the Service Provider in performing any of its obligations under this Contract, as may be specified in Item A [Services] or Item C [Commencement and Timeframes]. a partys employees, officers, agents, professional advis ers and subcontractors engaged in, or in relation to, the performance or management of this Contract including Specified Personnel. Privacy Act 1988 (Cth) any scheme operating under Schedule 4 to the Civil Law (Wrongs) Act 2002 (ACT), or any corresponding State, Territory or Commonwealth legislation, that limits the civil liability of members of particular professions arising from the performance of their professional services. the date specified for invoicing of the Fees, or portion of the Fees, described in Item D [Fees]. the party specified in the Contract Information and includes Personnel, employees, officers, agents and Subcontractors. the consultancy services to be provided by the Service Provider, as specified in Item A [Services] and includes the provision to the Customer of the Material specified in Item B [Contract Material]. an enterprise which, at the Commencement Date, employed less than the full time equivalent of 20 persons (full time equivalent is as defined by the Australian Bureau of Statistics). the Personnel (including Subcontractors) specified in Item J [Specified Personnel] as required to perform all or part of the work constituting the Services. a subcontractor engaged by the Service Provider. Background Materials provided by the Service Provider and the Contract Material.

Material

Milestone Moral Rights

Performance Date Personnel

Privacy Act Professional Standards Scheme Scheduled Date for Invoicing Service Provider Services

Small Business

Specified Personnel Subcontractor Warranted Materials

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1.2

In this Contract, except where the contrary intention is expressed: (a) (Gender) words importing a gender include the other gender; (b) (Plurals) words in the singular include the plural and vice versa; (c) (Headings) clause headings are for convenient reference only and have no effect in limiting or extending the language of provisions; (d) (Australian Dollars) a reference to dollars is a reference to Australian Dollars; (e) (Legislation) unless stated otherwise, a reference to legislation is to legislation of the Commonwealth, and includes any statutory modification, substitution or reenactment of that legislation or legislative provision; (f) (Item in Schedule) unless otherwise specified, a reference to an Item is a reference to an item in Schedule 1 Statement of Work; (g) (Time) a reference to time is to the time in the place where the obligation is to be performed; (h) (Successors and assigns) a reference to a party is to a party to this Contract, and a reference to a party to a document includes the party's executors, administrators, successors and permitted assignees and substitutes; (i) (Trustee) if the Service Provider is a trustee, the Service Provider enters the Contract personally and in its capacity as trustee and warrants that it has the power to perform its obligations under this Contract; (j) (Limitation of words) the meaning of general words is not limited by specific examples introduced by including, for example or similar expressions; (k) (Binds jointly and severally) any agreement, representation, warranty or indemnity by two or more parties (including where two or more persons are included in the same defined term) binds them jointly and severally; (l) (Benefits jointly and severally) any agreement, representation, warranty or indemnity in favour of two or more parties (including where two or more persons are included in the same defined term) is for the benefit of them jointly and severally; (m) (Business Day) if a day on or by which an obligation must be performed or an event must occur is not a Business Day, the obligation must be performed or the event must occur on or by the next Business Day; and (n) (No Disadvantage) a provision of this Contract will not be construed to the disadvantage of a party solely on the basis that it proposed that provision.

1.3

Parts 1 and 2 of this Contract will be interpreted in priority to the Schedule to the extent of any inconsistency.

2.

Provision of Services
2.1 The Service Provider must supply the Services: (a) as specified in Item A [Services]; (b) diligently, with due skill and care and to the best of the Service Provider's knowledge and expertise; (c) in accordance with all applicable Laws and relevant Australian industry standards, and adopt relevant best practice, including any Customer, Commonwealth or industry standards and guidelines specified in Item I [Standards and Best Practice]; (d) so as to comply with Performance Dates and other specified timeframes, for the performance of the Services specified in Item C [Commencement and Timeframe], and where no Performance Dates or project plan requirements are specified, promptly and without delay; and (e) otherwise in accordance with the provisions of this Contract.

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2.2 2.3

The Service Provider must liaise and comply with the directions of the Customers Contract Manager, as reasonably requested from time to time. The Service Provider must, when using the Customers premises or facilities: (a) comply with all reasonable directions and Departmental procedures relating to workplace harassment, occupational health (including the Customers smoke free work place policy), safety and security, including the Customers Internet access and usage guidelines in effect at those premises or in regard to those facilities, as notified by the Customer or as might reasonably be inferred from the circumstances; and (b) otherwise act consistently with the behaviours set out in section 13 of the Public Service Act 1999 and the APS Code of Conduct.

2.4

The Service Provider is fully responsible for the performance of the Services and for ensuring compliance with the requirements of this Contract, and will not be relieved of that responsibility because of any: (a) involvement by the Customer in the performance of the Services, unless such involvement materially impacts on the Service Providers ability to perform the Services in accordance with this Contract; (b) payment made to the Service Provider on account of the Services; (c) subcontracting of the Services; or (d) acceptance by the Customer of replacement Personnel.

2.5

The Customer must cooperate with the Service Provider by providing access to its premises and facilities as reasonably necessary to enable the Service Provider to provide the Services.

3.

Specified Personnel
3.1 The Service Provider must ensure that the Specified Personnel perform the Services in accordance with this Contract. The Customer may, at its absolute discretion, require the Service Provider to remove any Personnel (including Specified Personnel) from work in respect of this Contract, or from undertaking the Services or any part of the Services. If it does so, or if Specified Personnel are unable or unwilling to perform the Services, the Service Provider must provide replacement Personnel (acceptable to the Customer) of suitable ability and qualifications at no additional cost and at the earliest opportunity.

4.

Subcontracting
4.1
The Service Provider must not subcontract the performance of any obligations under this Contract without the prior written consent of the Customer. The Service Provider must, prior to entering into any subcontract with another party, provide a certificate to the Customer stating that: (a) the proposed Subcontractor has not been named by the Director of the Equal Opportunity for Women in the Workplace Agency as an employer currently not complying with the Equal Opportunity for Women in the Workplace Act 1999; (b) the arrangement in no way conflicts with or detracts from the rights and entitlements of the Customer under this Contract; and (c) the proposed Subcontractor is financially viable and has the relevant expertise necessary for the proper performance of the activity in question.

5.

Commonwealth Material
5.1 The Commonwealth grants (or will procure) a royalty-free, non-exclusive licence for the Service Provider to use and reproduce the Commonwealth Material for the purposes of this Contract. The Service Provider must: (a) ensure that the Commonwealth Material is used and held strictly in accordance with any direction from the Customer; and

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(b) subject to clause 5.2, on or before the Completion Date, destroy or return to the Customer all Commonwealth Material in its possession as directed by the Customers Contract Manager. 5.2 Unless otherwise directed by the Customer, the Service Provider may retain a copy of Commonwealth Material contained in the Service Providers internal working papers for the sole purpose of, and to the extent necessary to comply with, relevant law, applicable professional standards and the Service Providers internal quality assurance and risk management procedures. The Service Provider may, only for the purposes of the provision of the Services, assume that the Commonwealth Material is accurate, unless: (a) the Services require (whether expressly stated or not) the Service Provider to investigate or verify the accuracy or completeness of any Commonwealth Material; (b) a reasonable person in the position of the Service Provider would have grounds to doubt the accuracy or completeness of any Commonwealth Material; or (c) the Customer notifies the Service Provider that all or specified items or classes of Commonwealth Material may not be relied upon, in which case the Service Provider may not rely on the accuracy or completeness of the relevant Commonwealth Material.

5.3

6.

Intellectual Property Rights

6.1 This clause 6 does not affect the ownership of Intellectual Property Rights in any Background Material. The Service Provider must obtain all necessary copyright and other Intellectual Property Right permissions before making any Third Party Material available as Background Material for the purpose of this Contract. Subject to clause 6.3, all Intellectual Property Rights in the Contract Material vests in the Commonwealth. To the extent that: (a) the Commonwealth needs to use any of the Background Material provided by the Service Provider to receive the full benefit of the Services (including the Contract Material), The Service Provider grants to, or must obtain for, the Commonwealth a perpetual, world-wide, royalty free, non-exclusive licence (including the right to sublicense) to use, reproduce, adapt, modify and communicate that Background Material; (b) the Service Provider needs to use any of the: (i) Commonwealth Material; or (ii) Contract Material, for the purpose of performing its obligations under this Contract, the Commonwealth grants to the Service Provider, subject to any direction by the Customer, a worldwide, royalty-free, non-exclusive, non-transferable licence (including the right to sublicense) to use, reproduce, adapt, modify, distribute and communicate such Material solely for the purpose of providing the Services; (c) the Contract Material constitutes enhancements or developments to Background Material provided by the Service Provider but does not include any Commonwealth Material, the Commonwealth grants to the Service Provider, subject to any direction by The Customer, a world-wide, royalty-free, non-exclusive, non-transferable licence (including the right to sublicense) to use, reproduce, adapt, modify, distribute and communicate such Material. The Service Provider agrees, on request by the Customer, to promptly create, sign, execute or otherwise deal with any document that may be necessary or desirable to give effect to this clause 6.2.

6.2

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6.3

To the extent that: (a) the Contract Material consists of the internal administrative records of the Service Provider; and (b) those internal administrative records do not affect the ability of the Commonwealth to receive the full benefit of the Services, Intellectual Property Rights in those items of Contract Material vests in the Service Provider. The Service Provider warrants that: (a) the Commonwealths use of the Warranted Materials, will not infringe the Intellectual Property Rights of any person; and (b) it has the necessary rights to vest the Intellectual Property Rights and grant the licences as provided in this clause 6. If someone claims, or the Customer reasonably believes that someone is likely to claim, that all or part of the Warranted Materials infringe their Intellectual Property Rights, The Service Provider must, in addition to the indemnity under clause 10 and to any other rights that the Customer may have against it, promptly, at the Service Provider's expense: (a) use its best efforts to secure the rights for the Customer to continue to use the affected Warranted Materials free of any claim or liability for infringement; or (b) replace or modify the affected Warranted Materials so that the Warranted Materials or the use of them does not infringe the Intellectual Property Rights of any other person without any degradation of the performance or quality of the affected Warranted Materials. The Service Provider must deliver all Contract Material to the Customer by the Completion Date, unless otherwise directed by the Customers Contract Manager. The Service Provider must establish and maintain procedures to secure all Copies against loss and unauthorised access, use, modification or disclosure, and must adhere to the Commonwealths reasonable requirements in relation to the security of Copies. The Service Provider may retain one Copy of the Contract Material for their internal records, including for their governance, audit and insurance purposes.

6.4

6.5

6.6 6.7

7.

Moral Rights
7.1 The Service Provider: (a) agrees not to enforce any Moral Rights it may have; and (b) warrants that any use of the Contract Material by the Customer (other than false attribution of authorship) will not infringe the Moral Rights of any person.

Part 2 General requirements

8. Fees, expenses and assistance
8.1 Subject to the provisions of this Contract and receipt of a correctly rendered Invoice in the manner specified in Item F, the Customer will: (a) pay the Service Provider the Fees in the Instalments (if any) specified in Item D [Fees]; (b) pay the expenses and meet the costs specified in Item E [Expenses and Costs]; and (c) make all the payments in the manner specified in Item F [Invoices]. The Customer is under no obligation to make any payments to the Service Provider in excess of the Fees specified in Item D or the expenses and costs detailed in Item E.

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8.2

If the Service Provider delivers an Invoice prior to the Scheduled Date for Invoicing, the Invoice is deemed to have been delivered at the Scheduled Date for Invoicing. The Customer must pay the Service Provider the amount approved in respect of an Invoice within thirty (30) days after delivery of a correctly rendered Invoice in accordance with this clause 8. The Customers delay in payment or failure to pay by reason of the Customer disputing a portion of an Invoice in accordance with clause 8.4 is not a default by the Customer under this Contract Approval and payment of the amount of an Invoice is not evidence of the value of the obligations performed by the Service Provider, an admission of liability or evidence that the obligations under this Contract have been completed satisfactorily, but is payment on account only.

8.3

Subject to clause 8.4, if the Service Provider is a Small Business, the amount of Fees payable is less than $1 million (GST inclusive), and the Customer does not pay an Instalment within 30 days of receipt by the Customer of a correctly rendered tax Invoice in the manner specified in Item F [Invoices], the Customer will pay Interest to the Service Provider for each day from the day after payment was due up to and including the day that payment of the Instalment was made by the Customer (provided the Interest exceeds ten (10) dollars). The Customer will be entitled to defer payment, reduce the amount of any payment (including an Instalment) or withhold payment in its entirety, if and for so long as the Service Provider has not completed, to the satisfaction of the Customer, that part of the Services to which the payment relates. If the Customer does so, the Service Provider must continue to perform any obligations under this Contract unless the Customer directs otherwise in writing.

8.4

9.

Taxes and GST

9.1 9.2 9.3 In this clause 9, a word or expression defined in the GST Act has the meaning given to it in that Act. The Fees, to the extent to which they are consideration for taxable supplies made under the Contract, include the GST payable in respect of those supplies. Without limiting clause 9.2, all taxes, duties and government charges imposed or levied in Australia or overseas in connection with this Contract will be borne by the Service Provider. The Service Provider must ensure that all such taxes, duties and government charges are paid in full and on time. A party must pay GST on a taxable supply made to it under this Contract, in addition to any consideration (excluding GST) that is payable for that taxable supply and it must do so at the same time and in the same way as it is required to pay the consideration for the taxable supply. Subject to clause 9.6 if the Service Provider is required under this Contract to indemnify the Customer, or either party is required to make a reimbursement or contribution to the other party, and the other party can obtain an input tax credit on an acquisition associated with that indemnity, reimbursement or contribution, the amount the party is required to pay is: (a) reduced by the amount of that input tax credit; but (b) increased by any GST payable by that other party in respect of the indemnity, reimbursement or contribution. 9.6 Despite clause 9.5, the amount of an indemnity, reimbursement or contribution is not reduced by the amount of an input tax credit if that credit has already been taken into account in calculating the amount of the indemnity, reimbursement or contribution.

9.4

9.5

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9.7

If an adjustment event results in the GST on a taxable supply being different from the GST recovered by the supplier, the supplier: (a) must refund to the other party any excess; and (b) may recover from the other party any shortfall.

9.8 9.9

The recovery of any money from the other party under clause 9.7 is conditional on an adjustment note first being given to the other party. A party need not make a payment for a taxable supply made under or in connection with this Contract until it receives a tax invoice for the supply to which the payment relates.

10.

Indemnity
10.1 The Service Provider indemnifies the Customer and its Personnel against all Losses they directly or indirectly sustain or incur as a result of: (a) any breach of this Contract by the Service Provider, including but not limited to, a breach in respect of which the Customer exercises an express right to terminate this Contract; (b) any negligent, unlawful or wilful or wrongful act or omission of the Service Provider or its Personnel; (c) any allegation that any Service or Deliverable (including a Customers use or rights in respect of any Service or Deliverable) or any act of the Service Provider in relation to this any Contract infringes the Intellectual Property Rights or Moral Rights of a third party; or (d) any breach of any statute by the Service Provider, its officers, employees or subcontractors including, without limitation, the Privacy Act, except to the extent that any negligent act or omission of the Customer contributed to the relevant liability. The Customer may enforce the indemnity in favour of those indemnified for the benefit of each of such persons in the name of the Customer or of such persons. For the purposes of clause 10.1(c), an infringement of Intellectual Property Rights include unauthorised acts which would constitute an infringement but for the operation of: (e) section 183 of the Copyright Act 1968 (Cth); (f) section 163 of the Patents Act 1990 (Cth); (g) section 96 of the Designs Act 2003 (Cth); or (h) section 25 of the Circuits Layouts Act 1989 (Cth). except to the extent that any negligent act or omission of the Customer contributed to the relevant liability. The Customer may enforce the indemnity in favour of those indemnified for the benefit of each of such persons in the name of the Customer or of such persons. 10.2 Clause 10.1 does not apply to any Loss for which liability is limited by a Professional Standards Scheme. To avoid doubt, the Service Providers civil liability for such a Loss is determined by the relevant scheme. 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 the Contract.

10.3

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11.

Insurance
11.1 In connection with the provision of the Services the Service Provider must effect and maintain, with an insurance company that is reputable and subject to prudential regulation in the insurers home jurisdiction, from the Commencement Date until the termination of the Contract or the expiry of the Services, whichever is the later (except in the case of professional indemnity insurance which must be maintained until the expiration of seven (7) years after the termination of the Contract or the expiry of the Services, whichever is the later): (a) professional indemnity insurance under the Professional Standards Scheme for the amount to which liability is limited by the Scheme or other insurance for not less than ten (10) million dollars each claim and in the aggregate for all claims; and (b) public liability insurance for not less than twenty (20) million dollars each and every occurrence, and (c) workers compensation as required by Law. 11.2 11.3 The Service Provider must on request provide a certificate of currency issued by the insurer. The Service Provider must require all Subcontractors to effect and maintain, or cause to be effected and maintained, the insurances required by this clause 11 as appropriate given the nature of the Services to be provided by the Subcontractor.

12.

Confidentiality
12.1 12.2 Subject to clause 12.2, 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. The parties may disclose Confidential Information: (a) in the case of the Service Provider, to its Personnel or Subcontractors in order to comply with obligations, or to exercise rights, under this Contract, or to enable effective management or auditing of Contract related activities; (b) in the case of the Customer, to the responsible Minister, in response to a request by a House or a Committee of the Parliament of the Commonwealth, or within the Customer's organisation or with another Agency, where this serves the Commonwealth's legitimate interests; or (c) where disclosure is authorised or required by law, or the Confidential Information is used in relation to legal proceedings; 12.3 Before a party discloses Confidential Information, the disclosing party must notify the receiving person that the information is Confidential Information, and if the Confidential Information is to be disclosed pursuant to clause 12.2(a), not provide the information unless the receiving person agrees to keep the information confidential.

13.

Conflict of interest
13.1 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 its obligations under this Contract. If, during the performance of the Services, a Conflict arises, or appears likely to arise, the Service Provider must notify the Customer immediately in writing and disclose all relevant information relating to the Conflict. The Service Provider must not, and must ensure that its Personnel do not, engage in any activity or obtain any interest during the course of this Contract that is likely to conflict with, or restrict, the Service Provider providing the Services to the Customer fairly and independently.

13.2

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14.

Service Provider Warranties and Disclosure

14.1 The Service Provider warrants that, as at the date of this Contract and having made reasonable inquiries of its Personnel and any Subcontractors it intends to engage in connection with the Services, it is not aware of any: (a) matter that may affect the ability of the Service Provider or any intended Subcontractor to perform the Services; (b) investigation or claim, current or threatened, against or in any way involving the Service Provider or any intended Subcontractor or any settlement in respect of any such matter; (c) proven or alleged breach under any Law, agreement, order or award by the Service Provider; (d) judicial decision against the Service Provider or any intended Subcontractor (not including decisions under appeal) relating to employee entitlements; or (e) any act or conduct or activity of the Service Provider or any intended Subcontractor which may materially and adversely affect the Service Providers or any intended Subcontractors credit worthiness, integrity, character or reputation, or attract or have attracted negative publicity or attention or generate public or media criticism either inside or outside of Australia. 14.2 The Service Provider represents and warrants that: (a) it has the right to enter into this Contract, and has all rights, title, licences, interests and property necessary to lawfully perform the Services; (b) it and its Personnel, including its Specified Personnel, have the necessary experience, qualifications, skill, knowledge and competence to perform the Services; and (c) the Services will be fit for the purpose as set out in Item A [Services].

15.

Compliance with Laws

15.1 The Service Provider agrees, in carrying out this Contract, to comply with all Laws, and in particular the Crimes Act 1914, the Racial Discrimination Act 1975, the Sex Discrimination Act 1984, the Disability Discrimination Act 1992, the Equal Opportunity for Women in the Workplace Act 1999, the Charter of United Nations Act 1945, the Charter of United Nations (Terrorism and Dealing with Assets) Regulations 2002, the Archives Act 1983 the Freedom of Information Act 1982, the Freedom of Information Act 1982, the Trade Practices Act 1974, the Criminal Code Act 1995, the Fair Work Principles under the Fair Work Act 2009 and any occupational health and safety legislation applicable to the Service Provider. The Service Provider acknowledges that it is a contracted service provider (as defined in the Privacy Act) and agrees, in carrying out this Contract, to comply with its obligations, and to use reasonable endeavours to ensure any Subcontractor complies with its obligations, under the Privacy Act and to comply with the Information Privacy Principles as if it were an agency (as those terms is defined in the Privacy Act). The Service Provider acknowledges that the giving of false or misleading information to the Commonwealth is a serious offence under section 137.1 of the Criminal Code Act 1995. The Service Provider acknowledges that unauthorised disclosure of information held by the Commonwealth is subject to the sanction of criminal law under sections 70 and 79 of the Crimes Act 1914 and section 91.1 of the Criminal Code Act 1995.

15.2

15.3

15.4

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16.

Security
16.1 The Service Provider must, and must ensure that its Personnel, including Subcontractors, at its own cost comply with: (a) all relevant security and other requirements specified in the publicly available version of the Commonwealth Protective Security Manual; and (b) any other security procedures or additional requirements notified, in writing, by the Customer to the Service Provider. The Service Provider must comply with such a security procedure or requirement, from the date specified in the notice, or if none is specified, within five (5) Business Days of receipt of the notice. 16.2 The Customer may, from time to time, notify the Service Provider of the level of security or access clearance applicable to the Service Provider's Personnel, and the date from which, or the period during which, that clearance will be effective and the Service Provider must comply with and ensure its Personnel act in accordance with that notice. The Service Provider must not, and must ensure that its Personnel do not, remove Commonwealth Material or any of the Customers Confidential Information, or allow Commonwealth Material or any of the Customers Confidential Information to be removed, from the Customer's premises, or to be taken outside of Australia or accessed by any person outside Australia, without the Customer's prior written consent. The Service Provider must: (a) ensure that all Service Provider Personnel safeguard any keys or passes that are provided to the Service Provider for the purposes of this Contract; (b) ensure that access to Contract Material and other Material related to the Services is restricted to those Personnel who require access to perform their functions; and (c) as and when reasonably requested by the Customer, participate in security reviews by or on behalf of the Customer and provide security reports to the Customer, to demonstrate compliance with this clause 16. The Service Provider must notify the Customer immediately if it becomes aware or has reason to suspect that a breach of the Service Providers security obligations under the Contract has occurred.

16.3

16.4

16.5

17.

Audit and access requirements

17.1 The Service Provider agrees and must procure that each Subcontractor agrees: (a) to give the Customer, the Customers Contract Manager, any persons authorised in writing by the Customer or the Customers Contract Manager, the Auditor -General, the Privacy Commissioner and the Commonwealth Ombudsman access at all reasonable times to premises where the Services are being performed for the purpose of any audit, investigation or enquiry in connection with the Services or this Contract; and (b) to permit and facilitate inspection by those persons in a suitable room in the premises of the Service Provider and allow them to take copies of any Material relevant to the Services or this Contract.

18.

Dispute resolution
18.1 Subject to this clause 18, the parties agree not to commence any legal proceedings in respect of any dispute arising under this Contract, until ten (10) Business Days after the parties have met (including by telephone or other technology) to attempt in good faith to resolve the dispute through direct negotiation by persons to whom they have given authority to resolve the dispute.

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18.2

This clause 18 does not apply if: (a) either party commences legal proceedings for urgent interlocutory relief; (b) action is taken by the Customer under, or purportedly under, clause 8.4 or 19.1 or (c) action is taken by the Customer under, or purportedly under, clause 20. Despite the existence of a dispute, both parties must (unless requested in writing by the other party not to do so) continue to perform obligations under this Contract.

18.3

19.

Termination for convenience

19.1 The Customer may, at any time, by notice and at its sole discretion, terminate this Contract in whole or reduce the scope of the Services. On receipt of a notice of termination or reduction the Service Provider must: (a) stop or reduce work as specified in the notice; (b) take all available steps to minimise loss resulting from that termination or reduction and to protect Commonwealth Material and Contract Material; and (c) continue work on any part of the Services not affected by the notice. 19.2 If this Contract is terminated under clause 19.1, the Customer will only be liable to: (a) pay any Instalment relating to Services completed before the effective date of termination; (b) reimburse any reasonable expenses the Service Provider unavoidably incurs relating entirely to Services not covered under clause 19.2(a), which are directly attributable to the termination and which the Service Provider fully substantiates; (c) pay any expenses and meet any costs unavoidably incurred under Item E [Expenses and Costs] before the effective date of termination; and (d) provide the facilities and assistance necessarily required under Item H [Facilities and Assistance] before the effective date of termination. 19.3 The Customer is not liable to pay compensation under clauses 19.2(a), or 19.2(b) in an amount which would, added to any Fees already paid to the Service Provider under this Contract, together exceed the Fees set out in Item D [Fees]. If there is a reduction in scope of obligations under this Contract, the Commonwealths liability to pay any Instalment or expenses set out in Item D [Fees] or Item E [Expenses and Costs] will, in the absence of agreement to the contrary, abate proportionately to the reduction in the obligations under this Contract. The Service Provider is not entitled to compensation for loss of prospective profits and the Customer will not be liable to pay any compensation for loss of prospective profits for termination or reductions in scope under this clause 19.1 or loss of any benefits that would have been conferred on the Service Provider had the termination or reduction not occurred.

19.4

19.5

20.

Termination for default

20.1 The Customer may, by notice, with immediate effect, terminate this Contract if the Service Provider breaches any provision of this Contract and: (a) in the opinion of the Customer, the breach is not capable of remedy; or (b) the Service Provider fails to remedy the breach within fourteen (14) days after receiving a notice requiring it to do so; (c) the Service Provider being a corporation, there is any change in the direct or indirect beneficial ownership or control of the Service Provider;

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(d) the Service Provider disposes of the whole or any part of its assets, operations or business other than in the ordinary course of business, or ceases to carry on business; (e) the Service Provider is or becomes insolvent; (f) the Service Provider being a company enters into liquidation or has a controller or managing controller or liquidator or administrator appointed; (g) the Service Provider being a natural person is declared bankrupt or assigns his or her estate for the benefit of creditors; or (h) where the Service Provider is a partnership, any step is taken to dissolve that partnership.

21.

Termination generally
21.1 On termination of this Contract, whether under clause 19 or clause 20, the Service Provider must: (a) stop work on the Services; (b) subject to clause 5.2, deal with Commonwealth Material as reasonably directed by the Customer; (c) provide copies of all Contract Material to the Customer; and (d) as directed return all the Customer's Confidential Information to the Customer. 21.2 21.3 21.4 Clauses 6, 7, 9, 10, 11, 12, 16 and 17 survive the termination of this Contract. Termination of this Contract does not affect any accrued rights or remedies of a party. If a court finds that the Customer has unlawfully terminated under clause 20 then that termination is deemed to be a termination for convenience under clause 19.1. The termination has effect from the date of the purported termination under clause 20.

22.

Notices and other communications

22.1 A notice under this Contract must be in writing and signed (unless sent by email), and that notice must be addressed to the receiving partys Contract Manager, or as otherwise notified by the receiving party. A notice is deemed to be effected: (a) if delivered by hand upon delivery to the relevant address; (b) if sent by prepaid post on the second Business Day after the date of posting (or on the seventh Business Day after the date of posting if posted to or from a place outside Australia); (c) if sent by facsimile - when the sender's facsimile system generates a message confirming successful transmission of the entire notice unless, within eight business hours after the transmission, the recipient informs the sender that it has not received the entire notice, (d) if transmitted electronically only in the event that the receiving party or the receiving partys system acknowledges receipt by any means (including by means of an electronic mail read receipt message), but if the delivery, receipt or transmission is not on a Business Day or is after 5.00pm on a Business Day, the notice is taken to be received at 9.00am on the next Business Day.

22.2

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23.

Miscellaneous
23.1 This Contract may only be varied in writing signed by each party in the form of a Change Order, or as otherwise agreed, and a right under this Contract may only be waived in writing signed by the party entitled to the benefit of that right. Except where this Contract expressly states otherwise, a party may, in its discretion, give conditionally or unconditionally or withhold or grant then subsequently withdraw any approval or consent under this Contract, provided that the party acts reasonably in the exercise of its discretion. The Service Provider must not assign or novate its obligations or rights under this Contract without the Customers prior written approval. Each party must pay its own costs of negotiating, preparing and executing this Contract. This Contract may be executed in counterparts. All executed counterparts constitute one document. The rights and obligations of the parties under this Contract do not merge on completion of any transaction contemplated by this Contract. This Contract 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. A term or part of a term of this Contract that is illegal or unenforceable may be severed from this Contract and the remaining terms or parts of the terms of this Contract continue in force. If a party does not exercise a right or remedy fully or at a given time, the party may still exercise it later. The Service Provider must not represent and must ensure that their officers, employees, agents and Subcontractors do not represent themselves, as being an officer, employee, partner or agent of the Commonwealth, nor does the Service Provider have any power or authority to bind or represent the Commonwealth, except as expressly provided by this Contract. The Service Provider agrees not to misrepresent its relationship with the Commonwealth or engage in any misleading or deceptive conduct in relation to the Services. The Service Provider must, before making a public announcement in connection with this Contract or any transaction contemplated by it, obtain the Customer's agreement to the announcement, except if required by Law or a regulatory body (including a relevant securities exchange), in which case the Service Provider must, to the extent practicable, first consult with and take into account the reasonable requirements of the Customer.

23.2

23.3 23.4 23.5 23.6 23.7

23.8

23.9 23.10

23.11

24.

Governing law and jurisdiction

24.1 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, and the parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of the Australian Capital Territory.

_________________________________

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Schedule 1 Statement of Work (SOW)

Item A [Services]
(clauses 1.1, 2.1 and 14.2)

Item B [Contract Material]

(clause 1.1)

Item C [Commencement and Timeframe]

(clauses 1.1 and 2.1)

Commencement Date

Completion Date

Timeframe

Item D [Fees]
(clauses 1.1, 8.1, 19.3 and 19.4)

Item E [Expenses and Costs]

(clauses 8.1 and 19.4)

Item F [Invoices]
(clause 8.1 and 8.3)

Item G [Background Material]

(clause 1.1)

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Item H [Facilities and Assistance]

(clause 19.2)

Item I [Standards and Best Practice]

(clause 2.1)

Item J [Specified Personnel]

(clause 1.1)

Item K [Contract Managers]

(clause 1.1)

The Customers Contract Manager

The Service Providers Contract Manager

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Schedule 2 Change Order

Note: If the proposed changes will vary the Specifications, or the Services, the following form must be completed This Change Order (including its attachments, if any) serves to vary the Contract in accordance with the terms set out below. Unless specifically stated in this Change Order, all terms and conditions of the Contract continue unaffected.

1. 2. 3. 4. 5. 6. 7. 8. 9.

Change Order number Raised by Details of change (use attachments if required) Implementation date of Change Order Effect on Services Plan for implementing the change Effect on Fees Effect on Documentation Other relevant matters (eg transitional impacts)

The Contract Manager Name (print) Position Signature Date

Service Provider Name (print) Position Signature Date

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Signing page
EXECUTED as an agreement.

Signed for and on behalf of the Commonwealth of Australia as represented by the ~Agency ~ABN 61 970 632 495 by its duly authorised delegate in the presence of

Signature of witness Signature of delegate

Name of witness (print)

Name of delegate (print)

Position of delegate (print)

ON: [insert date]

[Note - Where the Service Provider is a company with multiple directors, select the execution block below. If the Service Provider is not a company with multiple directors speak to Legal Services Branch regarding the Contract.]

Executed by [insert name of company] ABN: [insert] in accordance with Section 127 of the Corporations Act 2001 in the presence of

Signature of director Signature of director/company secretary (Please delete as applicable)

Name of director (print)

Name of director/company secretary (print)

ON: [insert date]

ON: [insert date]

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