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UNCLASSIFIED – For Public Release
v25092017
UNCLASSIFIED – For Public Release
Contract for Services
Reference No: [Add ref number]
Customer
Customer Name Australian Digital Health Agency
Customer ABN 84 425 496 912
Address Level 25, 56 Pitt Street
Sydney NSW 2000
Supplier
Supplier Name Click here to enter text.
Supplier ABN Click here to enter text.
Address Click here to enter text.
UNCLASSIFIED – For Public Release
.
Please be advised this contract is a draft contract indicating the nature of the
services to be provided and the standard terms and conditions that will
apply. It is not reflective of the final contract and will be subject to change
based on the particulars of any offer made by the Australian Digital Health
Agency and on the particulars of any proposed arrangement.
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Statement of Work
C.A.1 Key Events and Dates This Contract commences on the Contract Start Date and continues for the Contract Term unless:
a) it is terminated earlier; or
b) if a Contract Extension Option is set out in the table, the Customer exercises the Contract Extension
Option, in which case this Contract will continue until the end of the extended time (unless it is
terminated earlier).
Event Date
Contract Start Date The date this Contract is signed by the last party to do so.
Contract Term This Contract commences on the Contract Start Date and continues until 30
June 2018.
Contract Extension Option Not applicable
C.A.2 The Requirement
The Customer wants the Supplier to enhance its existing proprietary software (Supplier Software) to allow
patients to more easily withdraw their consent to have uploaded to the My Health Record system any
pathology and/or diagnostic imaging reports that are requested using the Supplier Software (the Enhanced
Software). As such, the Supplier must provide the services specified in paragraphs 1 – 4 below (the
Services).
The Supplier has fully informed itself on all aspects of the work to be performed as a result of its response
to an expression of interest to provide these Services to the Customer prior to the date of this Contract. As
part of the Services, the Supplier agrees to meet each of the following requirements:
1. In order to produce the Enhanced Software, the Supplier must satisfy each of the software
enhancement requirements specified below (the Software Enhancement Requirements):
a. At the time of creating a pathology or diagnostic imaging request in the Supplier Software, the
Enhanced Software must be capable of displaying in its user interface a ‘checkbox’ (or some other
interface element as may be agreed between the Parties). The purpose for this checkbox is for the
requesting healthcare provider to indicate that the patient has withdrawn their consent to upload
the report(s) to the My Health Record system;
b. This checkbox must be labelled “Do not send reports to My Health Record” and the default state
of this checkbox must be unticked;
c. The Enhanced Software must capture and store this consent status locally and for each request,
for auditing and tracking purposes;
d. When printing a paper request, the Enhanced Software must print the statement “Do not send
reports to My Health Record” and a single checkbox. If consent has been withdrawn the Enhanced
Software must print a tick in that checkbox;
e. The checkbox and the “Do not send reports to My Health Record” statement must be printed in
any space allocated to clinical notes/history or reason for examination, and they must be in close
proximity to where the requesting healthcare provider affixes their signature to the paper
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request, or in some other location on the paper request as agreed in writing between the Parties;
and
f. There must be only one consent question per request and the consent may cover many orderable
items within the requesting event.
2. The Supplier must present its design for satisfying the Software Enhancement Requirements to the
Customer, and obtain written confirmation from the Customer that the design is appropriate prior to
commencing enhancement of the Supplier Software.
3. The Supplier must, in a virtual or in-person meeting with the Customer, and prior to releasing the
Enhanced Software to the Supplier’s users, demonstrate the Enhanced Software to the Customer and
get written confirmation from the Customer that the Enhanced Software conforms to the Software
Enhancement Requirements and all other applicable requirements specified in this Contract.
4. The Supplier must make available the Enhanced Software to the users of its Supplier Software via the
general release of a new version of the Supplier Software by the date specified in the table in C.A.2 (d).
As part of this release, the Supplier must issue a communication to its users explaining the nature and
the purpose of the enhancements made to the Supplier Software, via email or some other mode of
communication to be agreed to by the Customer prior to release.
The Supplier must comply with, and require the Supplier Personnel to comply with, the behaviours
specified in:
a) the Australian Digital Health Agency Code of Conduct (the Code), available at
http://www.apsc.gov.au/__data/assets/pdf_file/0010/56359/APS-Values-and-code-of-conduct.pdf,
as if the Supplier and those Supplier Personnel were employees as defined in the Code; and
b) the Public Governance, Performance and Accountability Act 2013 as if the Supplier and those
Supplier Personnel were officials (as defined in that Act) and having the general duties of officials
under sections 25-29 of that Act.
The Supplier agrees to be fully responsible for the provision and 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 provision of the Service;
b) payment made to the Supplier on account of the Services;
c) subcontracting of the Services; or
d) acceptance by the Customer of replacement Customer Personnel.
C.A.2 (a) Standards
The Supplier must:
a) provide the Services in accordance with this Contract, with due care and skill and in accordance
with best practices, including any applicable Australian Standards and any Commonwealth and
industry standards and guidelines;
b) ensure that the Services and Material are fit for purpose for which they are provided;
c) liaise with the Customer, provide any information the Customer may reasonably require and
comply with any reasonable directions of the Customer;
d) ensure that it and the Supplier Personnel, when carrying out their duties and performing work
under this Contract, do not:
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i. cause any unreasonable or unnecessary disruptions to the routines, procedures and
responsibilities of the Customer; or
ii. damage the reputation of the Customer, or the Commonwealth more broadly in the
Community.
C.A.2 (b) Security Requirements
The Supplier must comply with all Customer policies and procedures in relation to security.
C.A.2 (c) Workplace Health and Safety
The Supplier must comply with all Customer policies and procedures in relation to work health and safety.
The Customer and the Supplier will proactively identify and cooperate to manage any workplace health and
safety issues that may arise.
C.A.2 (d) Delivery and Acceptance
Where the Customer rejects any of the Services or any part of the Services under Clause C.C.10 [Delivery
and Acceptance] the Customer will specify a timeframe in which the Supplier is required to rectify
deficiencies, at the Supplier’s cost, so that the Services meet the requirements of the Contract. The Supplier
must comply with any such requirement. Rectified Services are subject to acceptance under Clause C.C.10
[Delivery and Acceptance].
The Supplier will refund all payments related to the rejected Services unless the relevant Services are
rectified and accepted by the Customer.
If the Supplier is unable to meet the Customer’s timeframe, the Customer may terminate the Contract in
accordance with Clause C.C.11 [Termination for Cause].
Goods:
The Customer does not require any Goods under the Contract.
Services:
Milestone Delivered To Customer Contact Details Due Date
General release of the
Enhanced Software
Ian Davies ian.davies@digitalhealth.gov.au 30 May 2018
C.A.2 (e) Facilities and Assistance Provided by the Customer
None specified.
C.A.2 (f) Customer Material
Licence to Customer Material
The Customer grants to the Supplier a fee-free, non-assignable, non-exclusive licence to exercise the
Intellectual Property Rights in the Customer Material for the sole purpose of fulfilling its obligations under
the Contract, for the purpose of creating, using and release of the Enhanced Software.
Customer Material means:
a) any material provided by the Customer to the Supplier for the purposes of this Contract,
including the documents, records, equipment, software (including source code and object
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code), goods, images, information and data stored by any means, including all copies and
extracts of the same information provided by the Customer, including the instructions
provided as part of the Software Enhancement Requirements;
b) any improvements, modifications, derivatives or enhancements of the material referred to in
paragraph (a) above created by either the Supplier or the Customer throughout the course of
the provision of the Services;
c) any material copied or derived at any time from the material referred to in paragraphs a) or b)
above;
(i) any material located on the Customer’s website that the Customer provides to the Supplier in
connection with the Services. If this occurs, the Supplier agrees to comply with any additional
terms and conditions of use that may be required.
To the extent that the Supplier develops or creates any improvements, modifications, derivatives or
enhancements of the Customer Material as part of the provision of the Services, such improvements,
modifications, derivatives or enhancements will form part of the Customer Material and the Intellectual
Property Rights in such improvements, modifications, derivatives or enhancements automatically vest in,
and the Supplier assigns such rights to, the Customer on its creation. Accordingly, the Supplier will
undertake all acts, and execute all documents reasonably necessary to give effect to this clause.
C.A.3 Contract Price The maximum Contract Price inclusive of GST and all taxes and charges will not exceed $16,500 as set out
below plus any expenses approved in accordance with Item C.A.3(e).
C.A.3 (a) Fixed Price
Item Description Quantity Unit Price GST Exclusive
GST Component (Unit Price)
Total Price GST Inclusive
Supplier to make available the Enhanced Software
via a general release to its users
1 $15,000 $1,500 $16,500
Total Fixed Price for Services $16,500
C.A.3 (b) Variable Fees and Charges
Not applicable.
C.A.3 (c) Payment Schedule
Progress payments of the Fixed Fees and Charges (inclusive of any GST and all taxes and charges) will be
made as follows:
Due Date Milestone Payment Amount
30 May 2018 The Supplier releases, and publicly announces (via a notice on the
Supplier’s website or as otherwise agreed between the Parties) the
availability of the Enhanced Software to its users.
$16,500
C.A.3 (d) Pricing for Extension Period
Not applicable
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C.A.3 (e) Expenses
The Customer will not reimburse the Supplier for any expenses (including travel, accommodation and taxi
travel).
C.A.4 Contract Managers and Addresses for Notices Contract Managers are responsible for issuing or accepting any written Notices under the Contract and are
the contact points for general liaison.
C.A.4 (a) The Customer’s Contract Manager:
The person occupying the position of: Program Manager
Currently: Ian Davies
CC: General Counsel
Postal Address: Level 25, 56 Pitt Street, Sydney NSW 2000
Telephone: 02 8298 3415
Email Address: ian.davies@digitalhealth.gov.au
CC: legal@digitalhealth.gov.au
C.A.4 (b) Address for Invoices:
Addressee Name: Accounts Payable
Postal Address: Level 25, 56 Pitt Street, Sydney NSW 2000
Email Address: accounts.payable@digitalhealth.gov.au
Telephone: (02) 8298 2119
C.A.4 (c) The Supplier’s Contract Manager:
Name: [insert]
Position Title: [insert]
Postal Address: [insert]
Telephone: [insert]
Mobile: [insert]
Email Address: [insert Supplier's email]
C.A.5 Supplier Personnel
For the purposes of this Contract, ‘Supplier Personnel’ means:
a) officers, officials, employees, agents and permitted subcontractors of the Supplier;
b) officers, officials, employees, agents and subcontractors of any of the Supplier’s permitted
subcontractors; and
c) includes those individuals (if any) engaged by the Supplier or its subcontractors on a voluntary basis,
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who are engaged in the provision of the Services.
C.A.6 Subcontractors Note to Supplier: This section will be completed prior to an offer being made and the execution of this
Contract. This section will only be applicable if the Supplier wishes to subcontract some or all of the delivery
of the Services. If so, the details of this section will be subject to negotiation. Otherwise this section will be
marked “None specified”.
Subcontractor full legal name
Postal address Services to be performed
ACN / ABN / ARBN
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Additional Contract Terms
C.B.1 Intellectual Property The definition of 'Intellectual Property Rights' in the Commonwealth Contracting Suite Glossary includes the
following rights:
a) patents, copyright, rights in circuit layouts, designs, trade marks (including goodwill in those marks)
and domain names;
b) any application or right to apply for registration of any of the rights referred to in paragraph (a); and
c) all rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in
Australia or elsewhere.
Intellectual Property Rights in the Material
The Supplier warrants that it owns the Intellectual Property Rights in the Supplier Software (also specified
as Supplier Pre-Existing Material). Accordingly, the Supplier warrants that it is entitled to produce the
Enhanced Software using the Supplier Software and that any action taken by the Supplier to produce the
Enhanced Software in accordance with the terms of this Contract will not infringe any third party’s
Intellectual Property Rights or Moral Rights in the Supplier Software any way whatsoever.
The Supplier also owns the Intellectual Property Rights in the Material created under the Contract,
specifically the Enhanced Software. To the extent that the Enhanced Software incorporates Customer
Material, the Supplier will not own the Intellectual Property Rights in such Customer Material but will be
able to use that Customer Material in conjunction with the Supplier Pre-Existing Material or the Enhanced
Software created under this Contract in accordance with the license granted by the Customer under Item
C.A.2 (f).
'Supplier Pre-Existing Material' means any material including the Supplier Software specified below that is
used to produce the Enhanced Software or that is material otherwise made available by the Supplier for the
purpose of the Contract which was already in existence prior to the Contract Start Date .
Supplier Pre-Existing Material to be provided
Supplier Pre-Existing Material
Note to Supplier: This section will be completed prior to an offer being made and the execution of this
Contract. The details will include the identification of the relevant software being enhanced.
C.B.2 Confidential Information of the Supplier
Note to Supplier: This section will be completed prior to an offer being made and the execution of this
Contract.
Note that once a contract is awarded to an applicant, the terms of the contract, including parts of the
contract drawn from the supplier’s submission, are not confidential unless the Agency has determined and
identified in this contract, that specific information is to be kept confidential in accordance with the
‘confidentiality test’ set out in the guidance on Confidentiality Throughout the Procurement Cycle at
http://www.finance.gov.au/procurement. In summary, there are four criteria which must be met for a
Supplier's commercial information to be considered confidential:
the information to be protected is specifically identified;
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the information is commercially sensitive;
disclosure would cause unreasonable detriment to the Supplier or another party; and
the information was / will be provided on the understanding it would / will remain confidential.
Any action undertaken by the Customer in compliance with C.C.20 of the Commonwealth Contract Terms
will not be taken to be a breach of this C.B.2.
The Customer agrees that the following information meets the Commonwealth’s confidentiality guidelines
and agrees to treat the information as confidential unless required to disclose the information. The
Customer retains the right to disclose any other information contained in the Contract, including the
confidential information of the Supplier:
a) to the Customer’s advisers (including legal and financial), employees, agents, contractors and
subcontractors, engaged in, or in relation to, the performance or management of the Contract;
b) to the Customer’s internal management personnel to enable effective contract management or
auditing or proper administration, or to the Department of Health or another Australian Government
agency (including the Australian National Audit Office) where this serves the Customer’s and the
Commonwealth of Australia’s legitimate interests;
c) to the Customer’s responsible Minister or on the request of a House, or a committee or the
Parliament of the Commonwealth of Australia;
d) to comply with the Customer’s obligations under section 69 or any other applicable provision of the
Public Governance, Performance and Accountability (Establishing the Australian Digital Health
Agency) Rule 2016;
e) to the Customer’s insurers, including Comcover and Comcare;
f) where the disclosure is required by law; and
g) where the disclosure is necessary to allow the Customer’s third party service providers to discharge
their obligations to the Customer.
Information to be kept confidential
Note to Supplier: As per the note above, the section will be relevant if the Customer is satisfied that for any information
that Supplier has asked the Customer to keep confidential, that information satisfies the ‘confidentiality test’ referred to
in the above note. Otherwise this will be marked “None specified”.
C.B.3 Precedence of Documents Clause In Clause C.C.3 of the Commonwealth Contract Terms, the composition of the Contract set out in that
clause applies from the Contract Start Date and not from 9.00am, Canberra time on the date of the
Contract as set out in the clause.
C.B.4 Survival Any term by its nature intended to survive termination of the Contract survives termination of the
Contract.
C.B.5 Execution by Trustee If the Supplier acts as trustee of a trust in relation to the Contract:
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a) it is liable both personally, and in its capacity as trustee of that trust; and
b) it represents and warrants that:
(i) such trust has been duly established and currently exists;
(ii) it is the duly appointed, current and only trustee of that trust;
(iii) as such trustee, it has the power to enter into and perform its obligations under this Contract;
and
(iv) it has an unqualified right of indemnity out of the assets of that trust in respect of its
obligations under the Contract.
C.B.6 GST and ABN a) If and to the extent that GST is payable on a supply made by the Supplier to the Customer under the
Contract:
(i) the Customer will pay the GST component to the Supplier at the same time as the GST
exclusive amount; and
(ii) the GST component will be calculated as an amount equal to the GST exclusive amount
multiplied by the prevailing rate of GST.
b) If and to the extent that GST is not payable on a supply made by the Supplier under this Contract:
(i) the Customer need not pay any GST component to the Supplier; and
(ii) if the Customer has already paid the GST component to the Supplier, the Supplier must
immediately refund that GST component to the Customer.
c) If any payment by the Customer to the Supplier is a reimbursement, calculated by reference to a cost
or expense incurred by the Supplier, that payment must be reduced by the amount of any input tax
credit that the Supplier (or the representative member of any GST group of which the Supplier is a
member) is entitled to claim in respect of that cost or expense.
d) If the Supplier does not provide the Customer with a document containing the Supplier's valid ABN
(or sufficient evidence of an exemption to hold an ABN) prior to any payment being due under this
Contract, the Customer may make such withholding from any such payment as required by
applicable tax legislation at the time of payment (including any GST or similar tax).
C.B.7 Superannuation
Note to Supplier: This section will be completed prior to an offer being made and the execution of this
Contract. This section will only be relevant if the Supplier is a sole trader, otherwise it will be marked “Not
applicable”.
The Agency will be required to pay compulsory superannuation payments for individuals who are engaged
under a contract for service that is wholly or principally for the labour of the individual. This requirement
applies when contracting with individuals directly (e.g. not through a company or a trust).
The following factors are indicators of the circumstances in which a contract for service would be wholly or
principally for the labour of an individual, as set out in the ATO's Superannuation Guarantee Ruling
SGR2005/1 which can be found at:
https://www.ato.gov.au/law/view/document?Docid=SGR/SGR20051/NAT/ATO/00001#fp54:
the individual is remunerated (either wholly or principally) for their personal labour and skills;
the individual performs the contractual work personally (there is no right of delegation); and
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the individual is not paid to achieve a result (for example, the individual is paid by reference to their
hours worked rather than the 'result' required under the contract).
If the above applies, the following clause will be inserted and the Supplier will provide the relevant choice of
fund form (and other internal forms relating to superannuation processing, if any) so that the Agency has
the relevant superannuation account details for the Supplier.
“The Contract Price at Item C.A.3 [Contract Price] is inclusive of the minimum superannuation
contributions which will be made by the Customer to a complying superannuation fund under the
superannuation guarantee legislation so that a superannuation guarantee charge does not arise
under that legislation.”
C.B.8 Insurance a) The Supplier must effect and maintain, and must ensure that its subcontractors effect and maintain,
on and from the date of this Contract:
(i) public liability insurance coverage for any one occurrence for at least the amount set out in the
table below;
(ii) if this Contract requires the provision of goods, product liability insurance coverage for at least
the amount set out in the table below; and
(iii) if this Contract requires the provision of services, professional indemnity insurance coverage
for any one claim for at least the amount set out in the table below,
with an insurer authorised under any applicable law. The Supplier must provide the relevant
insurance policies or certificates of currency for the insurances set out in the table below, if the
Customer so requests from time to time, and, in any event, at the Commencement Date and each
anniversary of the Commencement Date thereafter (if applicable). Any insurance policies that
provide cover on a ‘claims made’ basis must be maintained for no less than seven (7) years after the
completion of the relevant Services. Any insurance policies that provide cover on an ‘occurrence’
basis must be maintained during the Contract Term.
Type Coverage
Public Liability Insurance $10,000,000
Product Liability Insurance $10,000,000
Professional Indemnity Insurance $5,000,000
Workers Compensation Insurance As required by law
b) This clause survives the expiration or earlier termination of this Contract.
C.B.9 Indemnity a) To the extent permitted by Law, the operation of any legislative proportional liability regime is
excluded in relation to any claim against the Supplier under or in connection with this Contract.
b) The Supplier indemnifies the Customer, its employees, other officials, officers and agents (each an
Indemnified Person) from and against any:
(i) loss or liability incurred by the Indemnified Person;
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(ii) loss of or damage to property of the Indemnified Person; and
(iii) loss or expense incurred by the Indemnified Person 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 Indemnified Person,
arising in connection with:
(A) any act or omission by the Supplier or the Supplier Personnel in connection with this
Contract, where there was fault (including any negligent or otherwise tortious act or
omission) on the part of the person whose conduct gave rise to that liability, loss,
damage or expense;
(B) any breach by the Supplier of its obligations or warranties under this Contract; or
(C) any allegation that the provision of any Goods and/or Services, Supplier Pre-Existing
Material or Contract Material infringes the Intellectual Property Rights of any person.
c) The Supplier’s liability to indemnify the Indemnified Person under this Clause C.B.9 will be reduced
proportionately to the extent that any negligent or other tortious act or omission of the Customer
contributed to the relevant liability, loss, damage or expense.
d) The right of the Indemnified Person to be indemnified under this Clause C.B.9:
(i) is in addition to, and not exclusive of, any other right, power or remedy provided by law; and
(ii) does not entitle the Customer to be compensated in excess of the amount of the relevant
liability, loss, damage or expense.
e) The Supplier agrees that the Customer will be taken to be acting as agent or trustee for and on behalf
of its officers, officials, employees and agents from time to time.
f) This clause survives the expiration or earlier termination of this Contract.
C.B.10 Termination or Reduction for Convenience a) In addition to any other rights the Customer has under the Contract, the Customer may at any time
terminate the Contract or reduce the scope or quantity of the Services by providing a Notice to the
Supplier. If the Customer issues a Notice under this clause, the Supplier must comply with any
reasonable directions given by the Customer.
b) The Contract will terminate, or the scope or quantity of the Services will be reduced, in accordance
with the Notice provided under paragraph (a) above and the Supplier must mitigate all loss and
expenses in connection with the termination or reduction in scope (including the costs of its
compliance with any reasonable directions).
c) If the Customer issues a Notice under this clause, the Customer will pay the Supplier Services
accepted in accordance with the Contract before the effective date of termination or reduction and
for any reasonable costs the Supplier incurs that are directly attributable to the termination or
reduction, provided the Supplier substantiates these costs to the satisfaction of the Customer. Under
no circumstances will the total of all payments to the Supplier exceed the Contract Price and the
Supplier will not be entitled to loss of anticipated profit for any part of the Contract not performed.
d) Within 5 business days of the expiry or termination of the Contract, the Supplier must return the
Customer's confidential information and the Customer's Material to the Customer.
C.B.11 Additional Privacy Provisions a) In this clause:
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(i) Personal Information; and
(ii) Government Related Identifier,
have the same meaning as in the Privacy Act 1988 (Cth)
b) The Contractor must not:
(i) use or disclose any Personal Information, obtained from the Customer, for the purposes of
direct marketing; or
(ii) disclose or transfer any Personal Information, obtained from the Customer, to a person who is
not in Australia or an external Territory.
c) To the extent that the Supplier has access to or handles any Government Related Identifier in
connection with this Contract, the Supplier must only use and disclose the Government Related
Identifier to the extent that is necessary for the Supplier to provide the Services or otherwise
perform its obligations under the Contract and only as permitted as follows:
Permitted use of Government Related Identifier
Not applicable
CB.12 Counterparts a) This Contract may be executed in counterparts, each of which shall be deemed to be an original and
all of which, taken together, shall constitute one and the same agreement.
b) The Parties may exchange counterparts of executed copies of this Contract by electronic mail. The
Parties agree that the electronic receipt of such executed counterparts will have the same effect as if
the Parties had exchanged an original Contract executed by the Parties.
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Contract Annex 1 – Supplementary Information
None specified.
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Commonwealth Contract Terms
Version 2, Published 1 July 2015
Some terms used in these Commonwealth Contract Terms
have been given a special meaning.
Their meanings are set out either in the Commonwealth
Contracting Suite Glossary or in the relevant Commonwealth
Contract.
Background
The Customer requires the provision of certain Goods and/or
Services.
The Supplier has fully informed itself on all aspects of the
Customer’s requirements and has responded representing that
it is able to meet the Requirement.
C.C.1 Relationship of the Parties:
Neither party is the employee, agent or partner of the other
party. Neither party, by virtue of this Contract, is authorised to
bind or represent the other party.
In all dealings related to the Contract, the parties agree to:
(a) communicate openly with each other and co-operate in
achieving the contractual objectives; and
(b) act honestly and ethically; and
(c) comply with reasonable commercial standards of fair
conduct; and
(d) consult, co-operate and co-ordinate activities to identify
and address any overlapping work health and safety
responsibilities aimed at ensuring the health of workers
and workplaces.
C.C.2 Entire Agreement:
The Contract represents the Parties’ entire agreement in
relation to the subject matter. Anything that occurred before
the making of this Contract shall be disregarded (unless
incorporated into the Contract in writing). However, the
Supplier represents that the claims made in its Response to the
ATM were correct when made and remain correct.
No agreement or understanding varying or extending the
Contract is legally binding upon either Party unless in writing
and agreed by both Parties.
If either Party does not exercise (or delays in exercising) any
of its contractual rights, that failure or delay does not operate
to prejudice those rights.
C.C.3 Precedence of Documents:
The Contract is comprised of:
(a) Additional Contract Terms (if any);
(b) Statement of Work;
(c) Commonwealth Contract Terms;
(d) Commonwealth Contracting Suite Glossary; and
(e) Contract Annex 1 - Supplementary information (if any).
as at 9:00am, Canberra time, on the date of the Contract,
unless otherwise agreed in writing between the parties.
If there is ambiguity or inconsistency between documents
comprising the Contract, the document appearing higher in the
list will have precedence.
C.C.4 Survival:
Clauses C.C.9 [Not Used], C.C.18 [Supplier not to make
representations], C.C.20 [Compliance with Commonwealth
Laws and policies] and clause C.B.1 [Intellectual Property]
(if included) survive termination or expiry of the Contract.
C.C.5 Governing Law:
The laws of the Australian Capital Territory apply to the
Contract.
C.C.6 Conflict of Interest:
The Supplier has either declared any real or perceived
conflicts of interest that might arise; or states that no conflicts
of interest exist, or are anticipated, relevant to the performance
of its obligations under the Contract.
If any conflict or potential conflict arises during the Contract
Term, the Supplier will immediately notify the Customer and
comply with any reasonable Notice given to the Supplier by
the Customer in relation to the conflict.
C.C.7 Assignment:
The Supplier may not assign any rights under the Contract
without the Customer’s written consent. To seek consent, the
Supplier must provide the Customer with a Notice, which
includes full details of the proposed assignee and the rights the
Supplier proposes to assign.
To decline consent, the Customer must provide a Notice to the
Supplier, setting out its reasons, within twenty-eight (28)
calendar days of receiving the Notice seeking consent.
Otherwise, the Customer is taken to have consented.
C.C.8 Subcontracting:
Subcontracting any part of, or the entire Supplier’s obligations
under the Contract, will not relieve the Supplier from any of
its obligations under the Contract.
The Supplier must ensure that Subcontractors specified in
Item C.A.6 [Subcontractors] (if any) perform that part of the
Services Specified in that item.
The Supplier must make available to the Customer the details
of all subcontractors engaged to provide the Goods and/or
Services under the Contract. The Supplier acknowledges that
the Customer may be required to publicly disclose such
information.
The Supplier must ensure that any subcontract entered into by
the Supplier, for the purpose of fulfilling the Supplier’s
obligations under the Contract, imposes on the subcontractor
the same obligations that the Supplier has under the Contract
(including this requirement in relation to subcontracts).
[C.C.9 Not Used]
C.C.10 Delivery and Acceptance:
The Supplier must provide the Goods and/or Services as
specified in the Statement of Work and meet any requirements
and standard specified in the Statement of Work.
The Supplier must promptly notify the Customer if the
Supplier becomes aware that it will be unable to provide all or
part of the Goods and/or Services specified in the Statement of
Work and advise the Customer when it will be able to so.
Any Goods must be delivered free from any security interest.
Unless otherwise stated, Goods must be new and unused. Any
Services must be provided to the higher of the standard that
would be expected of an experienced, professional supplier of
similar services and any standard specified in the Statement of
Work.
The Customer may reject the Goods and/or Services within
fourteen (14) calendar days after delivery if the Goods and/or
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Services do not comply with the requirements of the Contract.
If the Customer does not notify the Supplier of rejection
within the fourteen (14) day period, the Customer will be
taken to have accepted the Goods and/or Services, though the
Customer may accept the Goods and/or Services sooner. Title
to Goods transfers to the Customer only on acceptance.
If the Customer rejects the Goods and/or Services, the
Customer must issue a Notice clearly stating the reason for
rejection and the remedy the Customer requires. No payment
will be due for rejected Goods and/or Services until their
acceptance.
C.C.11 Termination for Cause:
The Customer may terminate the Contract in whole or in part
if:
(a) the Supplier does not deliver the Goods and/or Services as
specified in the Contract, or notifies the Customer that the
Supplier will be unable to deliver the Goods and/or
Services as specified in the Contract;
(b) the Customer rejects the Goods and/or Services in
accordance with clause C.C.10 [Delivery and Acceptance]
and the Goods and/or Services are not remedied as
required by the Notice of rejection;
(c) the Supplier breaches the Contract and the breach is not
capable of remedy;
(d) the Supplier does not remediate a breach of the Contract
which is capable of remediation within the period
specified by the Customer in a Notice of default issued to
the Supplier; or
(e) the Supplier:
(i) is unable to pay all its debts when they become due;
(ii) if incorporated – has a liquidator, receiver,
administrator or other controller appointed or an
equivalent appointment is made under legislation other
than the Corporations Act 2001; or
(iii) if an individual – becomes bankrupt or enters into an
arrangement under Part IX or Part X of the
Bankruptcy Act 1966.
Termination of a Contract under this clause, does not change
the Customer’s obligation to pay any Correctly Rendered
Invoice.
[C.C.12 Not Used]
C.C.13 Dispute Resolution:
For any dispute arising under the Contract both the Supplier
and the Customer agree to comply with (a) to (d) of this clause
sequentially:
(a) both Contract Managers will try to settle the dispute by
direct negotiation;
(b) if unresolved, the Contract Manager claiming that there is
a dispute will give the other Contract Manager a Notice
setting out details of the dispute and proposing a solution;
(c) if the proposed solution is not accepted by the other
Contract Manager within five (5) business days, each
Contract Manager will nominate a more senior
representative, who has not had prior direct involvement
in the dispute. These representatives will try to settle the
dispute by direct negotiation;
(d) failing settlement within a further ten (10) business days,
the Customer will, without delay, refer the dispute to a
mediator selected by the Customer or, at the Customer’s
discretion, to the chairperson of an accredited mediation
organisation to appoint a mediator, for mediation to
commence within fifteen (15) business days of the request.
Representatives for the Supplier and the Customer must attend
the mediation. The nominated representatives must have the
authority to bind the relevant party and act in good faith to
genuinely attempt to resolve the dispute.
The Customer and the Supplier will each bear their own costs
for dispute resolution. The Customer will bear the costs of a
mediator.
If the dispute is not resolved within thirty (30) business days
after mediation commences, either the Supplier and the
Customer may commence legal proceedings.
Despite the existence of a dispute, the Supplier will (unless
requested in writing by the Customer not to do so) continue
their performance under the Contract.
This procedure for dispute resolution does not apply to action
relating to Termination for Cause under clause C.C.11 or to
legal proceedings for urgent interlocutory relief.
C.C.14 Specified Personnel:
The Supplier must ensure that the Specified Personnel set out
in Item C.A.5 [Specified Personnel] (if any) perform that part
of the Services specified in that item. The Supplier must
ensure that Specified Personnel (if any) are not replaced
without the prior written consent of the Customer.
At the Customer’s request, the Supplier, at no additional cost
to the Customer, must promptly replace any Specified
Personnel that the Customer reasonably considers should be
replaced with personnel acceptable to the Customer.
C.C.15 Licences Approvals and Warranties:
The Supplier must obtain and maintain all licenses or other
approvals required for the lawful provision of the Goods
and/or Services and arrange any necessary customs entry for
any Goods.
To the extent permitted by laws and for the benefit of the
Customer, the Supplier consents, and must use its best
endeavours to ensure that each author of Material consents in
writing, to the use by the Customer of the Material, even if the
use may otherwise be an infringement of their Moral Rights.
The Supplier must provide the Customer with all relevant third
Party warranties in respect of Goods. If the Supplier is a
manufacturer, the Supplier must provide the Customer with all
standard manufacturer’s warranties in respect of the Goods it
has manufactured and supplied.
C.C.16 Invoice:
If the Supplier is required to submit an invoice to trigger
payment, the invoice must be a Correctly Rendered Invoice.
The Supplier must promptly provide to the Customer such
supporting documentation and other evidence reasonably
required by the Customer to substantiate performance of the
Contract by the Supplier.
Payment of any invoice is not evidence that the obligations
under the Contract are accepted, evidence of the value of the
obligations performed by the Supplier, or an admission of
liability, but is payment on account only.
If the Supplier owes any amount to the Customer in
connection with the Contract, the Customer may offset that
amount, or part of it, against its obligation to pay any
Correctly Rendered Invoice.
C.C.17 Payment:
The Customer must pay the amount of a Correctly Rendered
Invoice to the Supplier within thirty (30) calendar days after
receiving it, or if this day is not a business day, on the next
business day.
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C.C.18 Supplier not to make representations:
The Supplier must not represent itself, and must ensure that its
officers, employees, agents or subcontractors do not represent
themselves, as being an officer, employee, partner or agent of
the Customer, or as otherwise able to bind or represent the
Customer.
C.C.19 Compliance with Laws:
The Supplier must comply with, and ensure its officers,
employees, agents and subcontractors comply with the laws
from time to time in force in any jurisdiction in which any part
of the Contract is performed.
C.C.20 Compliance with Commonwealth Laws and
Policies:
The Supplier must comply with, and ensure its officers,
employees, agents and subcontractors comply with all
Commonwealth laws and policies relevant to the Goods and/or
Services.
This general obligation is not limited by the following clauses
A to G.
A. Access to Supplier’s Premises: The Supplier agrees to
give the Customer, or its nominee, all assistance reasonably
requested for any purpose associated with the Contract or any
review of the Supplier’s performance under the Contract. This
will include, but is not limited to, access to premises, material,
records and personnel associated with the Goods and/or
Services and the Contract.
B. Confidential Information: The Supplier agrees not to
disclose to any person, other than the Customer, any
confidential information relating to the Contract or the Goods
and/or Services, without prior written approval from the
Customer. This obligation will not be breached where the
Supplier is required by law or a stock exchange to disclose the
relevant information. If, at any time, the Customer requires,
the Supplier is to arrange for its employees, agents or
subcontractors to give a written undertaking relating to
nondisclosure of the Customer’s confidential information in a
form acceptable to the Customer.
The Customer will keep any information in connection with
the Contract confidential to the extent it has agreed in writing
to keep specified information confidential. The Customer will
not be in breach of any confidentiality agreement if the
Customer is required to disclose the information.
C. Privacy Act 1988 (Cth) Requirements: In providing the
Goods and/or Services, the Supplier agrees to comply, and to
ensure that its officers, employees, agents and subcontractors
comply with the Privacy Act 1988 (Cth) and not to do
anything, which if done by the Customer would breach an
Australian Privacy Principle as defined in that Act.
The Supplier will immediately notify the Customer if the
Supplier becomes aware of a breach or possible breach of any
of its obligations under this clause C.C.20(C).
D. Criminal Code: The Supplier acknowledges that the
giving of false or misleading information to the
Commonwealth is a serious offence under section 137.1 of the
schedule to the Criminal Code Act 1995 (Cth). The Supplier
must ensure that any subcontractor engaged in connection
with the Contract acknowledges the information contained in
this clause.
E. Freedom of Information Act 1982 (Cth) (“FOI Act”)
Requirements: Where the Customer has received an FOI
request for access to a document created by, or in the
possession of the Supplier or its subcontractors that relates to
the Contract and is required to be provided under the FOI Act,
the Supplier must promptly provide the document to the
Customer, on request, at no cost.
F. Record Keeping: The Supplier must maintain proper
business and accounting records relating to the supply of the
Goods and/or Services and allow the Customer or its
authorised representative to inspect those records when
requested. The Supplier will provide any assistance and
information required should the Australian National Audit
Office wish to conduct an audit of the Supplier’s accounts and
records.
The Supplier must not transfer, or permit the transfer of,
custody or the ownership of any Commonwealth record (as
defined in the Archives Act 1983 (Cth)) without the prior
written consent of the Customer. All Commonwealth records
must be returned to the Customer at the conclusion of the
Contract.
G. Security and Safety: When accessing any Commonwealth
place, area or facility, the Supplier must comply with any
security and safety requirements notified to the Supplier by the
Customer or of which the Supplier is, or should reasonably be,
aware. The Supplier must ensure that its officers, employees,
agents and subcontractors are aware of, and comply with, such
security and safety requirements.
The Supplier must ensure that any material and property
(including security-related devices and clearances) provided
by the Customer for the purposes of the Contract is protected
at all times from unauthorised access, use by a third Party,
misuse, damage and destruction and is returned as directed by
the Customer.
H. Indigenous Procurement Policy: In providing the Goods
and/or Services, the Supplier agrees to use its reasonable
efforts to comply with the Commonwealth’s Indigenous
Procurement Policy available at:
http://www.dpmc.gov.au/resource-
centre/government/commonwealth-indigenous-procurement-
policy
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Commonwealth Contracting Suite (CCS) Glossary
In the Commonwealth Contracting Suite:
A reference to:
a) a clause in the form A.A.[x] – is a reference to a clause of the Approach to Market;
b) a clause in the form A.B.[x] – is a reference to a clause of the Commonwealth ATM Terms;
c) an item in the form C.A.[x] – is a reference to an item in the Statement of Work;
d) a clause in the form C.B.[x] – is a reference to a clause in the Additional Contract Terms;
e) a clause in the form C.C.[x] – is a reference to a clause of the Commonwealth Contract Terms;
f) a clause in the form D.A.[x] – is a reference to a clause of the CCS Standing Offer Deed;
g) a clause in the form D.B.[x] – is a reference to a clause of the CCS Additional Deed Terms; and
h) a clause in the form D.C.[x] – is a reference to a clause of the CCS Standing Offer Deed Terms.
“Additional Contract Terms” means the terms and conditions set out in the section of the Contract with the heading ‘Additional
Contract Terms’.
“Additional Deed Terms” means the terms and conditions set out in the section of the Deed with the heading ‘Additional Deed
Terms’.
“Approach to Market or ATM” means the notice inviting potential suppliers to participate in the procurement.
“Closing Time” means the closing time specified in clause A.A.1 [Key Events and Dates].
“Contract” means either the documentation specified in clause C.C.3 [Precedence of Documents] or, where a contract is created by
the issue of an Order under a Deed, the documentation specified on the Contract Signing Page of the Order.
“Contract Extension Option” means an option of a Customer to extend a Contract for one or more additional time periods.
“Contract Manager” means the contract manager for the Customer and/or Supplier (as relevant) specified in item C.A.4 [Contract
Managers and Addresses for Notices].
“Contract Price” means the total contract price specified in item C.A.3 [Contract Price], including any GST component payable, but
does not include any simple interest payable on late payments.
“Correctly Rendered Invoice” means an invoice that:
a) is correctly addressed and calculated in accordance with the Contract;
b) relates only to Goods and/or Services that have been accepted by the Customer in accordance with the Contract;
c) includes any purchase order number, and the name and phone number of the Customer’s Contract Manager;
d) is for an amount which, together with all previously Correctly Rendered Invoices, does not exceed the Contract Price; and
e) is a valid tax invoice in accordance with the GST Act.
“Customer” means a party specified in a Contract or a Deed as a Customer.
“Deed” means the documentation specified in clause D.C.3 [Precedence of Documents].
“Deed Extension Option” means an option of a Panel Owner to extend a Contract for one or more additional time periods.
“Deed Manager” means the deed manager for the Customer and/or Supplier (as relevant) specified in item D.A.4 [Deed Managers
and Addresses for Notices].
“Deed Statement of Work” means the section of the CCS Standing Offer Deed with the heading “Deed Statement of Work”.
“Delivery and Acceptance” means the process in which Goods and/or Services are delivered to a Customer and accepted by the
Customer as meeting the terms specified in the Contract.
“General Interest Charge Rate” means the general interest charge rate determined under section 8AAD of the Taxation
Administration Act 1953 on the day payment is due, expressed as a decimal rate per day.
“Goods and/or Services” means:
a) the Goods, Services, or Goods and Services and any Material specified in the Contract; and
b) all such incidental Goods and Services that are reasonably required to achieve the purposes of the Customer as specified in the
Contract.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“GST” means a Commonwealth goods and services tax imposed by the GST Act.
“Intellectual Property Rights” means all intellectual property rights which may subsist in Australia or elsewhere, whether or not they
are registered or capable of being registered.
“Material” means any material brought into existence as a part of, or for the purpose of producing the Goods and/or Services, and
includes but is not limited to documents, equipment, information or data stored by any means.
“Moral Rights” means right of attribution of authorship of work, right not to have authorship of work falsely attributed and right of
integrity of authorship as defined in the Copyright Act 1968 (Cth).
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“Notice” means au official notice or communication under the Contract in writing, from one Contract Manager and delivered to the
other Contract Manager, at the postal address, or email address, or facsimile number set out in the Statement of Work or as notified
from time to time.
“Order” means any order issued under a Deed.
“Panel Owner” means the party specified in a Deed as the Panel Owner.
“Quote” means a price submitted by the Supplier for the provision of particular Goods and/or Services.
“Requirement” means the description of the Goods and Services described in:
a) for the purposes of the Commonwealth ATM Terms the section of the Approach to Market with the heading ‘Requirement’;
b) for the purposes of the CCS Standing Offer Terms the section of the CCS Standing Offer Deed with the heading ‘Requirement’; or
c) for the purposes of the Commonwealth Contract Terms the section of the Statement of Work with the heading ‘Requirement’.
“Specified Personnel” means the personnel specified in item C.A.5 or such other personnel who are accepted by the Customer in
accordance with clause C.C.14 [Specified Personnel].
“Statement of Requirement” means the section of the Approach to Market with the heading ‘Statement of Requirement’.
“Statement of Work” means the section of the Contract or the Order, as the case may be, with the heading ‘Statement of Work’.
“Supplier” means a party specified in a Contract or a Deed as a Supplier.
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Contract Signing Page
The Parties agree that by signing this Commonwealth Contract – Goods and/or Services, they enter into a
Contract comprising:
a) Additional Contract Terms (if any);
b) Statement of Work;
c) Commonwealth Contract Terms;
d) Commonwealth Contracting Suite Glossary; and
e) Contract Annex 1 – Supplementary information (if any).
EXECUTED as an Agreement
Customer:
Signed for and on behalf of the Australian Digital Health Agency (the Customer) ABN 84 425 496 912 by its
duly authorised representative in the presence of:
Signature of witness Signature of representative
_______________________________ __________________________________
Name of witness (print) Name of representative (print)
________________________________ __________________________________
Position of representative (print)
__________________________________
On (print date)
__________________________________
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Supplier:
[Note: Select and complete the appropriate execution block for the entity you are contracting with from the
list below and delete the remainder.]
[For a Supplier who is an individual or sole trader:]
Executed by [insert full legal name of the individual] ABN: [insert ABN] in the presence of:
Signature of witness Signature of Supplier
_______________________________________ __________________________________
Name of witness (print) Name of Supplier (print)
_______________________________________ __________________________________
On (print date)
________________________________________
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[For a Supplier who is an individual trustee of a trust:]
Executed by [insert full legal name of the trustee] as trustee of [insert full name of trust] ABN: [insert ABN of
trust] in the presence of:
Signature of witness Signature of trustee
_______________________________________ __________________________________
Name of witness (print) Name of trustee (print)
_______________________________________ __________________________________
On (print date)
__________________________________
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[For a Supplier that is a company:]
Executed by [insert full name of the company] ACN: [insert ACN] in accordance with section 127 of the Corporations Act 2001
Signature of director Signature of director/company secretary (Please delete as applicable)
_______________________________________ __________________________________
Name of director (print) Name of director/company secretary (print)
_______________________________________ __________________________________
On (print date)
__________________________________
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[For a Supplier that is a corporate trustee of a trust:]
Executed by [insert full name of the company] ACN: [insert ACN] in accordance with section 127 of the
Corporations Act 2001 as trustee of [insert full name of trust] ABN: [insert ABN of trust]:
Signature of director Signature of director/company secretary (Please delete as applicable)
_______________________________________ __________________________________
Name of director (print) Name of director/company secretary (print)
_______________________________________ __________________________________
On (print date)
__________________________________
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[For a Supplier that is a partnership:]
Executed for an on behalf of by [insert name of partnership] ABN: [insert] by a duly authorised representative
who warrants that they have the authority to sign this Contract on behalf of [insert name of partnership] in
the presence of:
Signature of witness Signature of authorised representative
_______________________________________ __________________________________
Name of witness (print) Name of authorised representative (print)
_______________________________________ __________________________________
On (print date)
__________________________________
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