1. Term of Agreement
(a) The Agreement begins on the Commencement Date and continues until the Completion Date, unless extended in accordance with clause 1(b) or terminated earlier in accordance with these terms. If no Completion Date is specified, the Agreement will come to an end when all Services have been completed and all payments required to be made under the Agreement have been made.
(b) A party may, by the provision of notice in writing, request the Agreement be extended beyond the Completion Date. The Agreement may only be extended for the period or periods as agreed to by the parties in writing.
2. Provision of Services
(a) The Supplier must provide the Services to the Buyer in accordance with this Agreement and any reasonable directions given by the Buyer from time to time.
(b) The Supplier must:
(i) complete the Services by the Completion Date and any other date(s) for delivery of the Services specified in the Purchase Order;
(ii) promptly notify the Buyer as soon as it becomes aware of any delay or possible delay in the supply of the Services in accordance with the Agreement;
provide fit for purpose Services in a timely and efficient manner using the standard of care, skill, diligence, prudence and foresight that would reasonably be expected from a prudent, expert and experienced provider of services that are similar to the Services; and
(iii)use appropriately skilled and qualified Personnel to provide the Services.
(c) After performance of the Services or delivery of any deliverable provided as part of the Services, the Buyer will undertake such reviews as it considers necessary to determine whether the Services or deliverable(s) are fit for purpose and comply with this Agreement. After reviewing the Services or deliverable(s), the Buyer may notify the Supplier in writing:
(i) of its acceptance of the Services or deliverable(s) if it is satisfied that the Services or deliverable(s) are fit for purpose and comply with this Agreement; or
(ii)if the Services or deliverable(s) are not fit for purpose or do not comply with this Agreement, in which case clause 2(d) will apply.
(d) If the Buyer notifies the Supplier that the Services or deliverable(s) are not fit for purpose or do not comply with this Agreement, the Supplier must promptly rectify the non-compliance following which the Buyer will undertake further review of the Services or deliverable(s) under clause 2(c). This process will continue until, at the Buyer’s discretion, the Buyer:
(i) waives, in writing, the requirement for the Services or deliverable(s) to comply with this Agreement;
(ii) is satisfied that the Services or deliverable comply with this Agreement and accepts the Services or deliverable(s) in accordance with clause 2(c)(i);
(iii) conditionally accepts the Services or deliverable(s), subject to the Supplier agreeing to rectify the non-compliance within a reasonable timeframe and on such terms as the Buyer specifies; or
(iv) subject to the Buyer having provided the Supplier with at least two opportunities to rectify the non-compliance under clause 2(c)(ii), immediately terminate this Agreement by written notice to the Supplier.
If the Buyer terminates this Agreement under this clause 2(d)(iv), the Buyer will be entitled to a full refund of all moneys paid to the Supplier in respect of the Services or deliverables which the Buyer is unable to use following termination.
3. Price for the Services
(a) The Rates and Fees payable for the Services are fixed, and inclusive of all taxes (including GST), for the duration of the Agreement.
(b) The Supplier may not charge the Buyer for any additional fees or charges, or recover any expenses or other costs from the Buyer.
4. Failure to perform
(a) If the Supplier fails to perform any Services or deliver any deliverable(s) in accordance with this Agreement the Buyer:
(i)will not be required to pay for those Services or deliverable(s) until they are provided in accordance with the Agreement; and
(ii) may issue a notice to the Supplier requiring the Supplier to remedy any default or re-perform the Services or deliverable(s) within the time specified by the Buyer (which time must be reasonable having regard to the nature of the relevant Services or deliverable(s)).
(i) the default referred to in clause 6(a) above is incapable of being remedied or re-performed; or
(ii) the Supplier fails to remedy the default or re-perform the non-compliant Service(s) or deliverable(s) within the time specified in the notice issued under clause 6(a)(ii),
the Buyer may either have the Services or deliverable(s) remedied or re-performed by a third party or do so itself. In either case, the Supplier must pay the reasonable costs incurred by the Buyer in doing so.
(c) Nothing in this clause 6 derogates or otherwise limits any other remedy available to the Buyer at Law.
5. Intellectual Property Rights
(a) Ownership of any Contract Materials will vest in the Supplier from the time of its creation. The Supplier irrevocably and unconditionally grants to the Buyer a perpetual, nonexclusive, royalty-free, worldwide and transferable licence (including the right to sub-license) to exercise all Intellectual Property Rights in the Contract Materials to the extent necessary to allow the Buyer the full use and enjoyment of the Services.
(b) All PreExisting Intellectual Property used by the parties in connection with the provision of the Services or the creation of Contract Materials remains the property of the relevant party or its licensors.
(c) The Supplier hereby irrevocably and unconditionally grants to the Buyer a perpetual, nonexclusive, royalty-free, worldwide and transferable licence (including the right to sub-license) to use any of the Supplier’s PreExisting Intellectual Property incorporated in or otherwise required to use the Contract Materials or the Services. The licence granted to the Buyer under this clause is limited to use of the relevant PreExisting Intellectual Property by the Buyer for the purposes of the Buyer and for no other purpose.
(d) The Buyer grants the Supplier a non-exclusive, non-transferable, royalty-free licence to use the Buyer’s Pre-Existing Intellectual Property for the sole purpose of performing, and only to the extent required to perform, the Services and comply with its obligations under the Agreement during the Term.
(e) The Supplier undertakes that the Services may be used in any way by the Buyer, without identifying any person as the individual responsible for creating any particular material comprised in it, without infringing the Moral Rights of any person.
(f) The Supplier must, upon request by the Buyer, do all things necessary (including executing any documents) to give full effect to this clause 7.
(a) Data will remain (and, if necessary, will become) the property of the Buyer. The Supplier will assign to the Buyer from the date of creation all Intellectual Property Rights in any Data created by or on behalf of the Supplier.
(b) The Supplier must only use the Data to the extent necessary to perform its obligations under the Agreement.
(a) The Supplier indemnifies, and will at all times keep the Buyer and each of its Personnel indemnified, against any liabilities, losses, damages, costs and expenses (including all legal and settlement costs determined on a full indemnity basis) or compensation arising out of, or in any way in connection with, any:
(i) personal injury, including sickness and death;
(ii) property damage;
(iii) breach of an obligation of confidence or privacy, whether under this Agreement or otherwise;
(iv) fraudulent acts or omissions;
(v) wilful misconduct or unlawful act or omission;
(vi) breaches of logical or physical security;
(vii) loss or corruption of Data;
(viii) third party claim arising out of a breach of the Agreement by the Supplier or its Personnel (including breach of warranty) or any negligent act or omission of the Supplier or its Personnel; or
(ix) infringement or alleged infringement of the Intellectual Property Rights or any other rights of any person, including any third party,
which was caused, or contributed to by, any act or omission of the Supplier or any of its Personnel.
(b) The Supplier’s liability to indemnify the Buyer under clause 9(a) is reduced to the extent that any wilful, unlawful or negligent act or omission of the Buyer or its Personnel contributed to the liability, loss, damage, cost, expense or compensation.
(c) To the extent that the indemnity in clause 9(a) refers to persons other than the Buyer, the Buyer holds this clause on trust for those other persons.
The Supplier represents and warrants to the Buyer that:
(a) (Capacity) it has the right to enter into the Agreement and perform the Services;
(b) (Purpose) where the Buyer has, either expressly or by implication, made known to the Supplier any particular purpose for which the Services are required, the Services will be performed in such a way as to achieve that result;
(c) (Conflict) it and its Personnel do not hold any office or possess any property, are not engaged in any business or activity and do not have any obligations whereby duties or interests are or might be created in conflict with or might appear to be created in conflict with its obligations under the Agreement;
(d) (IP) it is entitled to use and deal with any Intellectual Property Rights which may be used by it in connection with the provision of the Services and to grant to the Buyer the licences contemplated by this Agreement;
(e) (Trust) it has not entered into the Agreement on behalf of a trust; and
(f) (No infringement) the receipt of the Services and the possession or use of any deliverables by the Buyer will not infringe the Intellectual Property Rights or other rights of any person or any Laws.
(a) The Buyer may terminate the Agreement with immediate effect (or with effect from a specified date) by giving notice in writing to the Supplier if the Supplier:
(i) fails to provide the Services in accordance with the Agreement;
(ii) breaches any provision of the Agreement and, where that breach is capable of remedy, fails to remedy the breach within 10 Business Days after receiving written notice requiring it to do so (or such later date as may be specified in that notice);
(iii) breaches any provision of the Agreement that is not capable of remedy;
(iv) or any of its Personnel involved in the provision of the Services commits fraud, dishonesty or any other serious misconduct;
(v) commits any act or does anything that may be prejudicial or otherwise detrimental to the reputation of the State; or
(vi) suffers from an Insolvency Event.
(b) The Buyer may terminate the Agreement without cause on notice to the Supplier.
(c) If the Agreement is terminated pursuant to clause 11(b), the Buyer will pay the Supplier:
(i) for the Services performed in accordance with the Agreement up to the date of the termination; and
(ii) the unavoidable and substantiated costs incurred by the Supplier as a direct result of the termination, excluding any loss of profit,
and the Buyer has no other liability to the Supplier in relation to that termination.
(d) When the Buyer issues a notice under clause 11(b), the Supplier will immediately comply with any directions given in the notice and do all that is possible to mitigate its losses arising from the termination of the Agreement.
(e) The Supplier may terminate the Agreement by giving at least 20 Business Days written notice to the Buyer if the Buyer fails to pay amounts due under this Agreement.
(f) Termination or expiry of this Agreement will not prejudice any right of action or remedy which may have accrued to either party prior to termination or expiry.
(g) On termination or expiry the Supplier must immediately, following instructions by the Buyer, cease using all materials that contain any Data or Confidential Information by either destroying the materials or returning the materials at no additional cost to the Buyer.
(a) The Supplier must obtain and maintain insurance cover during the Term and, if requested by the Buyer, for a period of up to 7 years after the Services have been completed, sufficient to cover any loss or costs that may be incurred and for which the Supplier may be liable in connection with the Agreement, including professional indemnity and, if applicable, public and product liability insurance to the value specified in the Purchase Order or, if no value is specified, to a value sufficient to cover any loss or costs that may be incurred.
(b) On request, the Supplier must, within 10 Business Days, provide the Buyer with evidence of the currency of any insurance it is required to obtain under this Agreement.
(c) Where the required insurance is due to expire, on request by the Buyer, the Supplier must provide evidence of the replacement insurance prior to the expiry of the initial insurance.
11. Confidentiality, privacy and data protection
(a) The Supplier and its Personnel must keep the Confidential Information confidential and secure and must not disclose or otherwise make available any Confidential Information to any other person.
(b) The Supplier consents to the Buyer publishing or otherwise making available information in relation to the Supplier (and the provision of the Services):
(i) as may be required to comply with the Contract Publishing System;
(ii) to other Victorian Public Entities or Ministers of the State in connection with the use of the Services;
(iii) to any public sector agency (of the State, any other state or territory or the Commonwealth) for the purposes of benchmarking, provided that it will not identify the Supplier;
(iv) to the office of the Auditor General appointed under section 94A of the Constitution Act 1975 (Vic) or the ombudsman appointed under the Ombudsman Act 1973 (Vic);
(v) to comply with Law, including the Freedom of Information Act 1982 (Vic); or
(vi) to the IBAC.
(c) The Supplier acknowledges that it will be bound by the Information Privacy Principles, Health Privacy Principles and any applicable Code of Practice (together, Privacy Obligations) with respect to any act done or practice engaged in by the Supplier for the purposes of the Agreement, in the same way and to the same extent as the Privacy Obligations would have applied to the Buyer in respect of that act or practice had it been directly done or engaged in by the Buyer.
(d) The Supplier acknowledges that the Buyer is bound by the Protective Data Security Standards. The Supplier will not do any act or engage in any practice that would contravene or give rise to a breach of a Protective Data Security Standard in respect of any Data collected, held, used, managed, disclosed or transferred by the Supplier, on behalf of the State, under or in connection with the Agreement.
When at the Buyer’s premises, the Supplier must, and must ensure that its Personnel:
(a) protect people and property;
(b) prevent nuisance;
(c) act in a safe and lawful manner;
(d) comply with the safety standards and policies of the Buyer (as notified to the Supplier); and
(e) comply with any lawful directions of the Buyer or its Personnel.
(a) The Supplier must not subcontract to any third person any of its obligations in relation to the Services without the prior written consent of the Buyer (which may be given conditionally or withheld in its absolute discretion).
(b) The Supplier will not, as a result of any subcontracting arrangement, be relieved from the performance of any obligation under the Agreement and will be liable for all acts and omissions of a subcontractor as though they were the actions of the Supplier itself.
14. Compliance with Law and Policy
(a) The Supplier must, in performing its obligations under the Agreement, comply with the Laws relevant to the provision of Services by the Supplier under the Agreement and with the ‘Victorian Industry Participation Policy’ (if applicable).
(b) Where, in the course of providing the Services, the Supplier or its Personnel:
(i) supervise or work with Public Sector Employees;
(ii) undertake work that is of a similar nature to the work undertaken by Public Sector Employees at a premises or location generally regarded as a public sector workplace; or
(iii) use or have access to public sector resources or information that are not normally accessible or available to the public,
the Supplier must (and must ensure that its Personnel) comply with the VPSC Code of Conduct.
(c) The Supplier acknowledges that:
(i) the Supplier Code of Conduct is an important part of the State’s approach to procurement and describes the State’s minimum expectations regarding the conduct of its suppliers;
(ii) it has read and aspires to comply with the Supplier Code of Conduct; and
(iii) the expectations set out in the Code are not intended to reduce, alter or supersede any other obligations which may be imposed on the Supplier, whether under the Agreement or at Law.
(a) The terms used in this clause have the same meanings given to them in the GST Act.
(b) Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with the Agreement are inclusive of GST.
16. Dispute Resolution
(a) If any dispute arises under or in connection with this Agreement (Dispute), either party may at any time give written notice to the other (Dispute Notice) requesting that a meeting take place to seek to resolve the Dispute in good faith.
(b) If the Dispute is not resolved in 15 Business Days it will be referred to mediation (Mediation) conducted by the Australian Disputes Centre (ADC) in accordance with the ADC mediation guidelines (Guidelines) with each party bearing their own cost.
(c) If the parties fail to settle the Dispute at Mediation, the parties may agree to submit the dispute for resolution to final and binding arbitration.
(d) The parties will continue to perform their respective obligations under this Agreement pending the resolution of a Dispute.
(a) The Agreement is governed by and is to be construed in accordance with the Laws. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the courts of Victoria and any courts which have jurisdiction to hear appeals from any of those courts and waives any right to object to any proceedings being brought in those courts.
(b) Time is of the essence in relation to the provision of the Services.
(c) The Agreement may only be varied or replaced by a written document executed by the parties.
(d) A waiver of any right, power or remedy under the Agreement must be in writing and signed by the party granting it. The fact that a party fails to do, or delays in doing, something the party is entitled to do under the Agreement does not amount to a waiver.
(e) Any provision of the Agreement which is invalid or unenforceable is to be read down, if possible, so as to be valid and enforceable, and, if that is not possible, the provision will, to the extent that it is capable, be severed to the extent of the invalidity or unenforceability, without affecting the remaining provisions.
(d) The Buyer may set off against any sum owing to the Supplier under the Agreement any amount then owing by the Supplier to the Buyer.
(f) Subject to clause 19(h), a party may not assign any right under the Agreement without the prior written consent of the other party. The Supplier will be responsible for acts and omissions of any assignee.
(g) The Buyer may, by notice in writing to the Supplier, assign its rights, transfer its obligations or novate the Agreement to any Victorian Public Entity in the event of any State government restructure or other rebuyer or change in policy.
18. Entire Understanding and order for precedence
(a) In the event and to the extent of any inconsistency between these General conditions for the supply of services and the Purchase Order, the General conditions will prevail to the extent of the inconsistency. If the inconsistency remains incapable of resolution by reading down, the inconsistent provisions will be severed from the Purchase Order without otherwise diminishing the enforceability of the remaining provisions of the Purchase Order.
(b) This Agreement contains everything the parties have agreed in relation to the Services. No party can rely on an earlier written document or anything said or done by or on behalf of another party before this Agreement was executed.
Clauses 3, 5, 6, 7, 8, 9c, 9d, 9f, 9g, 10a, 11,13b, 15(b), 16, 17, 18 19 and 20 of this Agreement survive the termination or expiry of this Ament or the completion of the provision of Services and may be enforced at any time.
In this Agreement, unless the context otherwise requires:
Agreement means the agreement for the provision of the Services consisting of these General conditions for the provision of services and the Purchase Order.
Business Day means a day which is not a Saturday, Sunday or public holiday (being a public holiday appointed as such under the Public Holidays Act 1993 (Vic)) in Melbourne.
Code of Practice means a code of practice as defined in, and approved under, the Privacy and Data Protection Act 2014 (Vic).
Completion Date means the date by which the provision of the Services must be completed by the Supplier, as specified in the Purchase Order.
Commencement Date means the date on which the provision of the Services will commence, as specified in the Purchase Order.
Confidential Information means any technical, scientific, commercial, financial or other information of, about or in any way related to, the Buyer, including any information designated by the Buyer as confidential, which is disclosed, made available, communicated or delivered to the Supplier, but excludes information which:
(a) is in or which subsequently enters the public domain, other than as a result of a breach of an obligation of confidentiality;
(b) the Supplier can demonstrate was in its possession prior to the date of the Agreement;
(c) the Supplier can demonstrate was developed by it independently of any disclosures previously made by the Buyer;
(d) is lawfully obtained by the Supplier on a non-confidential basis from a person who is not bound by a confidentiality agreement with the Buyer or otherwise prohibited from disclosing the information to the Supplier; or
(e) is required to be disclosed pursuant to Law, court order or other legal process.
Contract Materials means any materials (including any Intellectual Property) which the Supplier creates (whether alone or jointly with any other person) in performing the Services.
Contract Publishing System means the system of the Victorian Government requiring publication of details of contracts entered into by Victorian Government departments, bodies and agencies, including any replacement or amended system.
Data means all data, information, text, drawings, statistics, analysis and other materials embodied in any form which is:
(a) supplied by or on behalf of the Buyer in connection with this Agreement (Input Data); or
(b) generated, placed, stored, processed, retrieved, printed, accessed or produced utilising the Input Data, the Services or the deliverables.
Fees mean a fixed fee payable to the Supplier for the provision of the Services, as specified in the Agreement.
GST Act means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Health Privacy Principles means the health privacy principles set out in the Health Records Act 2001 (Vic).
IBAC means the commission established under the Independent Broad-based Anti-corruption Commission Act 2011 (Vic) and includes any other buyer that may, from time to time, perform the functions of the commission.
Information Privacy Principles has the meaning given in the Privacy and Data Protection Act 2014 (Vic).
Insolvency Event means, in relation to the Supplier, any of the following:
(a) anything that reasonably indicates that there is a significant risk that the Supplier is or will become unable to pay debts as they fall due;
(b) a step being taken to have a receiver, receiver and manager, liquidator or provisional liquidator appointed to the Supplier or any of its assets; or
(c) the Supplier ceasing, or indicating that it is about to cease, carrying on business.
Intellectual Property Rights means all intellectual property rights at any time recognised by law, including all present and future copyright, all proprietary rights in relation to inventions (including patents), registered and unregistered trademarks, trade secrets and know-how, registered designs, circuit layouts, and all other proprietary rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
(a) any statute, regulation or subordinate legislation of the Commonwealth of Australia, the State or local or other government in force in the State of Victoria, irrespective of where enacted; and
(b) lawful requirements of any government or government department or other body or a governmental, semi-governmental, judicial, municipal, statutory or public entity or authority (including a statutory authority or a State-owned enterprise), a self-regulatory authority established under statute or a stock exchange (wherever created or located) or a person (whether autonomous or not) who is charged with the administration of a law.
Moral Rights has the meaning given to that term in the Copyright Act 1968 (Cth) and includes a right of a similar nature that is conferrable by statute, and that exists or comes into existence anywhere in the world.
Buyer means the person, department, body or agency of the State party to this Agreement.
Overdue Amount means an amount (or part thereof) that:
(a) is not, or is no longer, disputed;
(b) is due and owing under a tax invoice (as defined in the GST Act), properly rendered by the Supplier in accordance with this Agreement; and
(c) which has been outstanding for more than 30 days, or if clause 5 applies, 10 Business Days from the date of receipt of the correctly rendered tax invoice (or the date that the amount ceased to be disputed, as the case may be).
Personnel of a party includes the officers, employees, agents, contractors and sub-contractors of that party.
PreExisting Intellectual Property means all materials owned by or licensed to a party as at the date of the Agreement or developed by or on behalf of a party independently of the Agreement.
Protective Data Security Standards means any standard issued under Part 4 of the Privacy and Data Protection Act 2014 (Vic) and any policies or protocols issued by the Buyer to ensure compliance with those standards.
Purchase Order means any form of order or purchase issued by the Buyer for the provision of Services, made under or incorporating these General conditions for the provision of services.
Public Sector Employee has the same meaning as in section 4(1) of the Public Administration Act 2004 (Vic).
Rates means the monetary amount (whether charged on an hourly, daily, weekly or other timerelated basis) payable to the Supplier for the provision of the Services, as specified in the Purchase Order.
Services means the services, and includes any deliverables provided as part of the services, specified in the Purchase Order and as provided under this Agreement.
State means the Crown in right of the State of Victoria.
Supplier means the entity supplying the Services under the Agreement.
Supplier Code of Conduct means the Code of Conduct issued by the Victorian Government for suppliers providing goods or services to the Victorian Government (as amended from time to time).
Term means the duration of this Agreement from the Commencement Date to the Completion Date or otherwise as extended in accordance with clause 1(b).
Victorian Public Entity means:
(a) a public sector body as defined in section 4 of the Public Administration Act 2004 (Vic);
(b) a statutory corporation, a State owned company, a State body or a State business corporation as those terms are defined in the State Owned Enterprises Act 1992 (Vic);
(c) a “Council” as defined in the Local Government Act 1989 (Vic); or
(d) an entity which receives the majority of its funding from any of the entities listed in paragraphs (a) to (c) or any entity under the control of any of the entities listed in paragraphs (a) to (c).
Victorian Public Sector Commission (VPSC) Code of Conduct means the Code of Conduct for Victorian Public Sector Employees 2015 issued by the Public Sector Commission pursuant to section 61 of the Public Administration Act 2004 (Vic).
Unless expressed to the contrary, in this Agreement:
(a) words in the singular include the plural and vice versa;
(b) any gender includes the other genders;
(c) if a word or phrase is defined its other grammatical forms have corresponding meanings;
(d) ‘includes’ and ‘including’ are not words of limitation;
(e) no rule of construction will apply to a clause to the disadvantage of a party merely because that party put forward the clause or would otherwise benefit from it;
(f) the obligations of the Supplier, if more than one person, under the Agreement are joint and several and each person constituting the Supplier acknowledges and agrees that it will be causally responsible for the acts and omissions, including breaches of the Agreement, of the other as if those acts or omissions were its own;
(g) the rights of the Supplier, if more than one person, under the Agreement, including the right to payment, jointly benefit each person constituting the Supplier (and not severally or jointly and severally); and
(h) a reference to:
(i) a person includes a partnership, joint venture, unincorporated association, corporation and a government or statutory body or authority;
(ii) a person includes the person’s legal personal representatives, successors, assigns and persons substituted by novation;
(iii) any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision; and
(iv) a party or parties is a reference to the Buyer and the Supplier (as the case requires).