DTA Proximity Contract Template - Amazon Web Services
Digital Sourcing Contract – COTS Software and SupportCommonwealth of Australia as represented by [Insert name of buyer] (‘buyer’)and[Insert name of seller](‘seller’)[Insert Name of Contract]Contents TOC \h \z \t "Heading 1,1,Heading 2,2,Heading1 No Numbers,1,Schedule Heading,1" Contract Terms PAGEREF _Toc521328992 \h 1Contract Framework and Governance PAGEREF _Toc521328993 \h 21.Purpose, interpretation and technical contract issues PAGEREF _Toc521328994 \h 21.1Defined terms PAGEREF _Toc521328995 \h 21.2Interpretation PAGEREF _Toc521328996 \h 21.3Cooperation and collaboration PAGEREF _Toc521328997 \h 31.4Access by other agencies PAGEREF _Toc521328998 \h 41.5Execution and performance warranty PAGEREF _Toc521328999 \h 41.6Additional warranty if seller is a trustee PAGEREF _Toc521329000 \h 41.7No agency PAGEREF _Toc521329001 \h 51.8Assignment and novation PAGEREF _Toc521329002 \h 51.9Severability PAGEREF _Toc521329003 \h 51.10Entire agreement PAGEREF _Toc521329004 \h 61.11Waiver PAGEREF _Toc521329005 \h 61.12Governing law and jurisdiction PAGEREF _Toc521329006 \h 61.13Counterparts PAGEREF _Toc521329007 \h 62.Contract term PAGEREF _Toc521329008 \h 63.Contract governance PAGEREF _Toc521329009 \h 73.1Contract representatives PAGEREF _Toc521329010 \h 73.2Notices PAGEREF _Toc521329011 \h 73.3Reporting by seller PAGEREF _Toc521329012 \h 83.4Risk management PAGEREF _Toc521329013 \h 93.6Access and audit (including auditing against standards) PAGEREF _Toc521329015 \h 93.7Freedom of Information PAGEREF _Toc521329016 \h 113.8Conflicts of interest PAGEREF _Toc521329017 \h 123.9Problem resolution PAGEREF _Toc521329018 \h 123.10Compliance with laws PAGEREF _Toc521329019 \h 144.Personnel PAGEREF _Toc521329020 \h 144.1General personnel requirements PAGEREF _Toc521329021 \h 144.2Subcontracting PAGEREF _Toc521329022 \h 154.3Conduct of personnel PAGEREF _Toc521329023 \h 164.4Security clearances PAGEREF _Toc521329024 \h 174.5Confidentiality deeds PAGEREF _Toc521329025 \h 184.6Work health and safety PAGEREF _Toc521329026 \h 184.7Workplace gender equity PAGEREF _Toc521329027 \h 194.8Indigenous procurement policy PAGEREF _Toc521329028 \h 19Delivery and Payment PAGEREF _Toc521329029 \h 205.Delivery of products PAGEREF _Toc521329030 \h 205.1Software supply PAGEREF _Toc521329031 \h 206.Delivery of services PAGEREF _Toc521329032 \h 226.1Delivery and installation services PAGEREF _Toc521329033 \h 226.2Software support services PAGEREF _Toc521329034 \h 226.3Training services PAGEREF _Toc521329035 \h 257.General delivery requirements and warranties PAGEREF _Toc521329036 \h 257.1Complying with requirements and timeframes PAGEREF _Toc521329037 \h 257.2Documentation PAGEREF _Toc521329038 \h 277.3Knowledge transfer and other assistance PAGEREF _Toc521329039 \h 277.4General warranties PAGEREF _Toc521329040 \h 287.5Specific product warranties PAGEREF _Toc521329041 \h 287.6Specific service warranties PAGEREF _Toc521329042 \h 297.7Third party warranties PAGEREF _Toc521329043 \h 297.8Harmful code PAGEREF _Toc521329044 \h 297.9Escrow PAGEREF _Toc521329045 \h 308.Acceptance PAGEREF _Toc521329046 \h 318.1Acceptance process PAGEREF _Toc521329047 \h 318.2Acceptance test plan PAGEREF _Toc521329048 \h 339.Intellectual property and moral rights PAGEREF _Toc521329049 \h 339.1Overview PAGEREF _Toc521329050 \h 339.2Intellectual property rights in software PAGEREF _Toc521329051 \h 349.3Intellectual property rights in all other contract material PAGEREF _Toc521329052 \h 349.4IP warranty PAGEREF _Toc521329053 \h 359.5Infringement claims PAGEREF _Toc521329054 \h 359.6Moral rights PAGEREF _Toc521329055 \h 3610.Buyer assistance to seller PAGEREF _Toc521329056 \h 3610.1Access to buyer material PAGEREF _Toc521329057 \h 3610.2Use of buyer facilities PAGEREF _Toc521329058 \h 3710.3Access to buyer facilities PAGEREF _Toc521329059 \h 3710.4Site specification and preparation PAGEREF _Toc521329060 \h 3711.Charges and payment PAGEREF _Toc521329061 \h 3811.1Charges PAGEREF _Toc521329062 \h 3811.2Invoices PAGEREF _Toc521329063 \h 3811.3Payment PAGEREF _Toc521329064 \h 3811.4Service Rebates PAGEREF _Toc521329065 \h 3911.5GST and other taxes PAGEREF _Toc521329066 \h 3911.6Maximum charges payable PAGEREF _Toc521329067 \h 4011.7Late payment of invoices PAGEREF _Toc521329068 \h 4011.8Right to recover money PAGEREF _Toc521329069 \h 41Contract Management and Performance PAGEREF _Toc521329070 \h rmation management PAGEREF _Toc521329071 \h 4112.1Privacy PAGEREF _Toc521329072 \h 4112.2Confidentiality PAGEREF _Toc521329073 \h 4212.3Buyer’s data PAGEREF _Toc521329074 \h 4412.4Records PAGEREF _Toc521329075 \h 4512.5Transferring data off-shore PAGEREF _Toc521329076 \h 4613.Security PAGEREF _Toc521329077 \h 4613.1General requirements PAGEREF _Toc521329078 \h 4613.2Physical security PAGEREF _Toc521329079 \h 4713.3Cyber security PAGEREF _Toc521329080 \h 4813.4Information security PAGEREF _Toc521329081 \h 4814.Liability PAGEREF _Toc521329082 \h 4914.1Liability PAGEREF _Toc521329083 \h 4914.2Limitations of liability PAGEREF _Toc521329084 \h 4914.3Indemnities PAGEREF _Toc521329085 \h 5114.4Insurance PAGEREF _Toc521329086 \h 5215.Management of performance issues PAGEREF _Toc521329087 \h 5315.1Defects PAGEREF _Toc521329088 \h 5316.Changing and ending the contract PAGEREF _Toc521329089 \h 5416.1Variation PAGEREF _Toc521329090 \h 5416.2Buyer directions PAGEREF _Toc521329091 \h 5516.3Pricing contract variations PAGEREF _Toc521329092 \h 5516.4Termination and reduction for convenience PAGEREF _Toc521329093 \h 5516.5Termination by buyer for default PAGEREF _Toc521329094 \h 5716.6Termination by seller for default PAGEREF _Toc521329095 \h 5816.7Consequences of termination PAGEREF _Toc521329096 \h 5916.8General termination assistance PAGEREF _Toc521329097 \h 59Schedule A – Glossary PAGEREF _Toc521329098 \h 61Schedule B – Contract Details PAGEREF _Toc521329099 \h 69Schedule C – Requirements PAGEREF _Toc521329100 \h 73Schedule D – Form of Acceptance Test Plan PAGEREF _Toc521329101 \h 77Schedule E – Form of Acceptance Certificate PAGEREF _Toc521329102 \h 79Schedule F – Charges PAGEREF _Toc521329103 \h 80Schedule G – Form of Change Order PAGEREF _Toc521329104 \h 83Schedule H – Form of Agency Order PAGEREF _Toc521329105 \h 85Schedule I – Form of Deed of Confidentiality PAGEREF _Toc521329106 \h 86Contract TermsDatebuyer Name: The Commonwealth of Australia represented by [insert agency name]ABN: [insert buyer’s ABN]Address: [insert buyer’s address]Short form name: buyerseller Name: [insert seller’s full legal name]ABN: [insert seller’s ABN]Address: [insert seller’s address]Short form name: sellerbuyer and seller agree as follows.Contract Framework and Governance Purpose, interpretation and technical contract issuesDefined termsWords in bold italics have the meaning given in REF _Ref505935416 \r \h \* MERGEFORMAT Schedule A.InterpretationIn this contract, unless otherwise required by the context: words importing any gender include other genders;words in the singular include the plural and vice versa;where a word or phrase is given a particular meaning in REF _Ref505935416 \r \h \* MERGEFORMAT Schedule A, other parts of speech and grammatical forms of that word or phrase have a corresponding meaning; a reference to a clause or a Schedule is to a clause of, or schedule to, this contract;a reference to this contract includes all Schedules and is to the contract as amended;if this contract requires an obligation to be performed on a day that is not a business day, it may be performed on the next day that is a business day; notes in the contract form part of the contract;“person” includes an individual, agency, a company, a partnership and an unincorporated organisation;“and/or” means either or both; “relating to” and “relates to” are intended to have a broad meaning and include “in connection with” and “arising out of”; ‘document” includes an electronic record; and“$” means Australian dollars.If there is a direct inconsistency between the documents forming this contract, a clause or Schedule higher in the following list prevails over a clause or Schedule lower in the list to the extent of the inconsistency: REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B;clauses REF _Ref505937032 \r \h \* MERGEFORMAT 1 to REF _Ref505937044 \r \h \* MERGEFORMAT 16 and REF _Ref506796564 \r \h \* MERGEFORMAT Schedule A; REF _Ref505935653 \r \h \* MERGEFORMAT Schedule C, REF _Ref505936658 \r \h \* MERGEFORMAT Schedule D or REF _Ref505936660 \r \h \* MERGEFORMAT Schedule F;other Schedules.Cooperation and collaborationWhen performing their respective obligations under this contract, the parties must act collaboratively and cooperatively with each other to achieve buyer’s objectives and endeavour to solve any issues or problems as quickly and as cost effectively as possible.When exercising any discretion or power under this contract, a party must act honestly, reasonably and in good faith. The obligation to act in good faith does not prevent a party from acting to further its legitimate commercial interests.seller must work collaboratively and cooperatively with other organisations providing products or services to buyer, including by sharing any relevant information that is not confidential information.Access by other agenciesThis clause REF _Ref505937057 \r \h \* MERGEFORMAT 1.4 applies unless Item REF _Ref506967504 \r \h \* MERGEFORMAT 1 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B provides that it does not apply.An agency (other than buyer) may seek to purchase products and/or services from seller on terms substantially the same as this contract, by sending an order substantially in the form of REF _Ref505936714 \r \h \* MERGEFORMAT Schedule H to seller’s representative.If an agency provides an order to seller under this clause REF _Ref505937057 \r \h \* MERGEFORMAT 1.4, seller must enter into a separate contract with the agency to supply the relevant products and/or services on substantially the same terms as this contract (including in relation to charges) unless otherwise agreed with the agency. Execution and performance warrantyseller warrants that:it has the power, authority, capacity, and that any necessary contractual arrangements are in place, to execute this contract and to lawfully perform and comply with it; andall actions necessary for the authorisation, execution and performance of this contract have been taken.Additional warranty if seller is a trusteeThis clause REF _Ref505937085 \r \h \* MERGEFORMAT 1.6 only applies if Item REF _Ref506788931 \r \h \* MERGEFORMAT 2 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B states that seller is entering into this contract as the trustee of a trust.seller enters into this contract both in its personal capacity and as trustee of the trust named at Item REF _Ref506788931 \r \h \* MERGEFORMAT 2 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B and must not resign as trustee during the term.seller warrants to buyer that:seller is the sole trustee of the trust named at Item REF _Ref506788931 \r \h \* MERGEFORMAT 2 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B and is authorised under the trust deed to enter into and perform this contract;seller entering into and performing this contract is not inconsistent with the trust deed or any principle of equity; andseller has a full right of indemnity from trust assets in relation to any liability relating to this contract.No agencyOther than as expressly provided in this contract, seller is not the agent of buyer and must not represent itself as such.Item REF _Ref507398685 \r \h \* MERGEFORMAT 3 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B may authorise seller to purchase products or services on behalf of buyer. If the Item includes such an authorisation, seller must comply with any conditions set out in the Item.Assignment and novationseller may not assign the benefit of this contract, or take any action to novate this contract or assign its obligations under it, without the prior approval of buyer. buyer must not unreasonably withhold its consent to a proposed assignment by seller of the benefits of this contract.SeverabilityIf a provision of this contract is unenforceable for any reason, the provision may be severed from the contract and the remainder of the contract remains enforceable.Entire agreementThis contract documents the entire agreement between the parties in relation to the subject matter and supersedes any previous proposals, representations or discussions.WaiverA delay by a party in exercising a right under this contract does not operate as a waiver of that right or any other right under this contract (unless otherwise expressly provided in this contract).Governing law and jurisdictionThis contract is governed by the laws of the Australian Capital Territory and the parties irrevocably submit to the non-exclusive jurisdiction of the courts of that Territory for any matters relating to this contract.CounterpartsThis contract may be executed in any number of counterparts. All counterparts constitute the same contract.Contract termThe term of this contract commences on the commencement date and expires on the end date, unless terminated under clauses REF _Ref506748739 \r \h \* MERGEFORMAT 16.4 to REF _Ref506748746 \r \h \* MERGEFORMAT 16.6 (inclusive).Subject to clause REF _Ref505937106 \r \h \* MERGEFORMAT 2.1.3, buyer may notify seller at any time during the term of this contract that the term is extended until the date specified in the notice. buyer may give more than one notice under this clause REF _Ref505936823 \r \h \* MERGEFORMAT 2.1.2.The total length of all extensions under clause REF _Ref505936823 \r \h \* MERGEFORMAT 2.1.2 may not exceed the option period. If buyer issues a notice under clause REF _Ref505936823 \r \h \* MERGEFORMAT 2.1.2 that is inconsistent with this clause REF _Ref505936850 \r \h \* MERGEFORMAT 2.1.3, the notice is taken to extend the contract for the longest period that is consistent with this clause REF _Ref505936850 \r \h \* MERGEFORMAT 2.1.3.Contract governanceContract representativesThe contract representative for each party has authority to represent the party for all matters relating to this contract, including:sending and receiving notices and day-to-day communications; andexercising a party’s rights under the contract.A party may change its contract representative and the contact details for its contract representative by notice, without the need for a variation under clause REF _Ref506748870 \r \h \* MERGEFORMAT 16.1.NoticesA communication from one party to the other party relating to this contract must be:in writing, in hard-copy or by email;(in the case of a hard-copy communication) signed by, or sent by (in the case of an email communication), the sending party’s contract representative;addressed to the other party’s contract representative;in the case of a hard-copy communication, sent by express mail or courier or hand-delivered to the receiving party’s contract representative address in Item REF _Ref506967955 \r \h \* MERGEFORMAT 7 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B (or, if the address has been changed under clause REF _Ref505937133 \r \h \* MERGEFORMAT 3.1.2, that changed address); andin the case of an email communication, sent by email to the receiving party’s contract representative address in Item REF _Ref506967955 \r \h \* MERGEFORMAT 7 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B (or, if the email address has been changed under clause REF _Ref505937133 \r \h \* MERGEFORMAT 3.1.2, that changed email address).A notice given in hard-copy is taken to be received when it is delivered by hand or courier or, if it is posted, 3 business days after the date of posting (if posted in Australia) or 10 business days after the date of posting (if posted outside Australia).A notice given by email is taken to be received when it reaches the receiving party’s email server, unless the sending party receives an error message indicating that the receiving party’s contract representative has not received the message.Reporting by sellerseller must notify buyer within 3 business days if any of the following occur:seller is unable to pay all its debts when they become due;?if seller is a company, seller is under any form of external administrations under the Corporations Act 2001 (Cth) or an equivalent appointment is made under other legislation; if seller is a partnership, the partnership is dissolved;there is a material change to seller’s business (including as a result of a restructure, divestiture of business or sale of shares) that adversely affects the capacity of seller to perform its obligations under this contract;seller or any of seller’s personnel is convicted of a criminal offence, investigated by a government agency for alleged fraudulent behaviour, is subject to any claim or suit for alleged fraudulent behaviour or makes an admission of fraudulent behaviour (whether or not the fraudulent behaviour relates to this contract).Risk managementseller must identify and manage any risks and issues associated with the performance of its obligations under this contract, including in relation to the introduction of harmful code into buyer’s systems, the risk of loss or corruption of buyer’s data and of delay.AnnouncementsSubject to clause REF _Ref505962099 \r \h \* MERGEFORMAT 3.5.2 and REF _Ref506457335 \r \h \* MERGEFORMAT 3.5.3, except as required by law or the rules of a securities exchange, or with the consent of buyer in a notice, seller must not make any public announcement about the award, performance or termination of this contract.If buyer or another agency makes a public announcement relating to this contract, seller may subsequently make a public announcement on the same subject matter in a similar level of detail.Unless Item REF _Ref506749900 \r \h \* MERGEFORMAT 8 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B provides otherwise, seller may include buyer’s name and a short factual description of this contract in a list of reference projects, proposals to third parties and its annual report.Access and audit (including auditing against standards)Subject to this clause REF _Ref506196077 \r \h \* MERGEFORMAT 3.6, seller must, on buyer’s request in a notice, provide reasonable access to seller’s premises, seller’s records and/or seller’s personnel to enable buyer and/or an accountability body to audit seller in relation to seller’s compliance with its obligations under this contract and/or in relation to the accuracy of any information provided by seller to buyer in relation to this contract.buyer may notify seller under this clause REF _Ref506196666 \r \h \* MERGEFORMAT 3.6.2 if it or an accountability body wishes to audit seller in relation to this contract. In the notice, buyer must set out:the scope of the audit;the name and title of the individuals who will conduct the audit;the access to seller’s premises, seller’s records and/or seller’s personnel required as part of the audit; andthe proposed timing of the audit.Subject to clause REF _Ref506194494 \r \h 3.6.4, if buyer gives seller a notice under clause REF _Ref506196666 \r \h 3.6.2, within 5 business days, seller must notify buyer that:it agrees to the proposed arrangements for the audit (in which case it must then provide the access requested in buyer’s notice under clause REF _Ref506196666 \r \h \* MERGEFORMAT 3.6.2); orit agrees to the proposed arrangements for the audit other than in relation to timing (in which case seller must, acting reasonably, nominate alternative timing for the audit in a notice to buyer).If seller gives buyer a notice under clause REF _Ref520452585 \r \h 3.6.3 REF _Ref506198618 \r \h \* MERGEFORMAT b), buyer may either:notify seller that it agrees with seller’s proposed timing (in which case seller must then provide the access requested in buyer’s notice under clause REF _Ref506196666 \r \h \* MERGEFORMAT 3.6.2, but with the agreed revised timing); or propose alternative timing (in which case buyer must give seller a revised notice under clause REF _Ref506196666 \r \h \* MERGEFORMAT 3.6.2).seller is not obliged under this clause REF _Ref506199400 \r \h \* MERGEFORMAT 3.6 to provide buyer or an accountability body with access to the confidential information of seller’s other customers or other confidential information (including costing information) that does not relate to the audit.If an accountability body is proposing to undertake an audit under this clause REF _Ref506199807 \r \h \* MERGEFORMAT 3.6, and the individuals from the accountability body are not bound by statutory confidentiality obligations in relation to the audit, at seller’s request in a notice, the individuals from the accountability body must provide reasonable confidentiality undertakings to seller in relation to seller’s confidential information accessed during the audit. However, these confidentiality undertakings must permit the individuals to assist in carrying out the functions of the accountability body (including, where applicable, the publication of reports) and to provide information to buyer in relation to seller’s compliance with its obligations under this contract.When conducting an audit under this clause REF _Ref506199400 \r \h \* MERGEFORMAT 3.6, buyer or an accountability body must take reasonable steps to minimise disruption to seller’s business operations.The parties must meet their own costs of complying with this clause REF _Ref506199400 \r \h \* MERGEFORMAT 3.6.This clause survives the termination or expiry of this contract for a period of 2 years.Freedom of InformationThis clause REF _Ref506121961 \r \h \* MERGEFORMAT 3.7 applies if seller provides services under this contract to a person who is not an agency.If buyer receives a request for a document under the Freedom of Information Act 1982 (Cth) and:the document was created by or is in the possession of seller (including seller’s personnel); andthe document relates to, or was created in, the performance of this contract (other than the entry into this contract),then, if requested to do so by buyer in a notice, seller must provide a copy of the document to buyer at no additional cost to buyer.Conflicts of interestseller warrants to buyer on the commencement of this contract and continuously during the term that neither it nor any seller’s personnel have a conflict of interest in relation to any aspect of the performance of this contract that has not been disclosed to buyer in a notice.If seller notifies buyer of a conflict of interest in relation to the performance of this contract, seller must comply with any reasonable direction given by buyer in a notice to manage or mitigate that conflict of interest at no additional cost to buyer.Problem resolutionIf a party considers that an issue has arisen, it must notify the other party within 5 business days describing the issue and explaining its position in relation to the issue.If a party receives a notice under clause REF _Ref506125958 \r \h \* MERGEFORMAT 3.9.1, within 5 business days the party must notify the other party explaining its position in relation to the issue.If a notice has been given under clause REF _Ref506126399 \r \h \* MERGEFORMAT 3.9.2 and a party considers that the issue remains unresolved, within 5 business days that party must notify the other party that a meeting is required to discuss and attempt to resolve the issue.If a notice is given under clause REF _Ref506129577 \r \h \* MERGEFORMAT 3.9.3 in relation to an issue, both parties must ensure that their contract representatives meet to discuss and genuinely attempt to resolve the issue within 5 business days. The time and location of such meeting is to be agreed between the contract representatives but, failing agreement, the meeting will be at 11.00am on the fifth business day after the notice is given under clause REF _Ref506129577 \r \h \* MERGEFORMAT 3.9.3, at buyer’s address.If either party considers that an issue discussed at a meeting held under clause REF _Ref506186550 \r \h \* MERGEFORMAT 3.9.4 remains unresolved after the meeting, that party may give a notice to the other party requiring the issue to be discussed by the senior executives of the parties. If a notice is given under clause REF _Ref506186928 \r \h \* MERGEFORMAT 3.9.5, each party must ensure that one or more of its senior executives who have responsibilities in relation to this contract meet with senior executives of the other party who have responsibilities in relation to this contract within 15 business days of the notice (either as part of a scheduled governance meeting or at a specially convened meeting) to discuss and genuinely attempt to resolve the issue. The time and location of such meeting is to be agreed between the senior executives of the parties but, failing agreement, the meeting will be at 11.00am on the fifteenth business day after the notice is given under clause REF _Ref506187370 \r \h \* MERGEFORMAT 3.9.5, at buyer’s address.If either party considers that an issue discussed at a meeting held under clause REF _Ref506750540 \r \h \* MERGEFORMAT 3.9.6 remains unresolved after that meeting, or that the other party has not complied with the process in clauses REF _Ref506125958 \r \h \* MERGEFORMAT 3.9.1 to clause REF _Ref506750540 \r \h \* MERGEFORMAT 3.9.6 in relation to an issue, that party may notify the other party that the issue has become a dispute.If Item REF _Ref506750577 \r \h \* MERGEFORMAT 9 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B provides for any dispute to be referred to mediation, if a party gives a notice under clause REF _Ref506188620 \r \h \* MERGEFORMAT 3.9.7 in relation to a dispute, the parties must refer the dispute to mediation in accordance with the process set out in the Item.If Item REF _Ref506750659 \r \h \* MERGEFORMAT 10 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B provides for a category of disputes to be referred to expert determination, if a party gives a notice under clause REF _Ref506188620 \r \h \* MERGEFORMAT 3.9.7 in relation to a dispute within that category, the parties must refer the dispute to expert determination in accordance with the process set out in the Item.If both clause REF _Ref506189804 \r \h \* MERGEFORMAT 3.9.8 and clause REF _Ref506189828 \r \h \* MERGEFORMAT 3.9.9 apply to a dispute, the dispute must be referred to mediation before the dispute is referred to expert determination.If neither clause REF _Ref506189804 \r \h \* MERGEFORMAT 3.9.8 nor clause REF _Ref506189828 \r \h \* MERGEFORMAT 3.9.9 applies to a dispute, the parties must give genuine good faith consideration to whether mediation or expert determination would be a suitable mechanism to attempt to resolve the dispute. If both parties agree to use mediation or expert determination in relation to a dispute, the parties must agree a suitable process and then follow that process in relation to the dispute.Neither party may commence legal proceedings in relation to an issue or a dispute until all applicable requirements in clause REF _Ref506125958 \r \h \* MERGEFORMAT 3.9.1 to clause REF _Ref506191860 \r \h \* MERGEFORMAT 3.9.11 have been complied with in relation to the issue or dispute. However, this clause REF _Ref507404171 \r \h \* MERGEFORMAT 3.9.12 does not prevent a party seeking urgent interlocutory relief.The parties must continue to perform this contract (including, in the case of buyer, paying any undisputed charges that are due under this contract) while the parties are complying with the requirements in clause REF _Ref506125958 \r \h \* MERGEFORMAT 3.9.1 to clause REF _Ref506191860 \r \h \* MERGEFORMAT 3.9.11.The parties must meet their own costs of complying with the requirements in clause REF _Ref506125958 \r \h \* MERGEFORMAT 3.9.1 to clause REF _Ref506191860 \r \h \* MERGEFORMAT 3.9.pliance with lawsseller must comply with law when performing its obligations under this contract.PersonnelGeneral personnel requirementsseller must ensure that all of seller’s personnel:are appropriately skilled and qualified to provide the services required to be provided under this contract;to the extent they are using software, have appropriate formal training on that software; for seller’s personnel providing services in Australia or undertaking any activity relating to this contract in Australia, have the right to work in Australia under law; andare required by employment contracts or other legally binding arrangements to maintain the confidentiality of buyer’s confidential information.Subcontractingseller must ensure that the subcontractors (if any) named in Item REF _Ref507238522 \r \h \* MERGEFORMAT 11 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B have the role specified in the Item in relation to the delivery of products and services. If seller wishes to remove or replace any such subcontractor, it must notify buyer and seek buyer’s prior consent. The notice seeking buyer’s consent must explain the circumstances of the proposed removal or replacement. Subject to this clause REF _Ref507238580 \r \h \* MERGEFORMAT 4.2, seller must not enter a subcontract without the prior consent of buyer in a notice. When seeking consent, seller must provide full details of the proposed subcontractor, including whether it is an Indigenous enterprise.buyer must not unreasonably withhold its consent under clause REF _Ref507238549 \r \h \* MERGEFORMAT 4.2.1 or REF _Ref507238976 \r \h \* MERGEFORMAT 4.2.2.seller must not enter into a subcontract with a person that:has been named by the Director of the Workplace Gender Equality Agency as an employer who is not complying with the WGEA; and/orhas a judicial decision against it (not including decisions under appeal) relating to employee entitlements in respect of which it has not paid the judgement amount.seller must not enter a subcontract on terms that would permit the subcontractor to do, or fail to do, something that, if done or not done by seller, would be a breach of this contract. seller must also ensure that each subcontract can be terminated for convenience on similar terms to this contract. If requested by buyer in a notice, seller must provide buyer with a copy of a subcontract to enable buyer to verify that seller has complied with this clause REF _Ref507239024 \r \h \* MERGEFORMAT 4.2.5.seller warrants that it has informed all subcontractors that their participation in performing this contract may be publicly disclosed.seller is responsible for all acts or omissions of subcontractors, seller group companies and individual contractors in relation to this contract (even if the subcontractor has been named in Item REF _Ref507238522 \r \h \* MERGEFORMAT 11 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B or if buyer has consented to the subcontractor). buyer (acting reasonably) may by notice to seller direct the removal or replacement of any subcontractor. seller must comply with a direction under this clause REF _Ref507239089 \r \h \* MERGEFORMAT 4.2.8.Conduct of personnelWhen seller’s personnel are on or near buyer’s premises in relation to the performance of this contract, seller must:ensure that those personnel comply with all policies and procedures applicable to buyer’s employees and/or contractors that buyer has notified to seller;direct those personnel to demonstrate behaviour consistent with the Australian Public Service Code of Conduct; andensure that those personnel comply with any reasonable direction given by buyer in relation to conduct, health and safety, or security.When seller’s personnel are accessing buyer’s systems, using any of buyer’s equipment or accessing buyer’s confidential information, seller must ensure that those personnel comply with all policies and procedures applicable to buyer’s employees and/or contractors that buyer has notified to seller.Security clearancesIf required by Item REF _Ref506751430 \r \h \* MERGEFORMAT 12 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B, seller must ensure that seller’s personnel (or classes of seller’s personnel specified in that Item):maintain security clearances specified in that Item throughout the term; and/orsuccessfully undertake other vetting or suitability screening processes that are specified in that Item.buyer may notify seller that seller’s personnel (or classes of seller’s personnel) must maintain security clearances (at a level specified by buyer in the notice) before accessing any buyer’s confidential information. If buyer gives such a notice, seller must ensure that any of seller’s personnel without the required security clearance do not access buyer’s confidential information.buyer may notify seller that seller’s personnel (or classes of seller’s personnel) must undertake vetting or suitability screening processes normally required by buyer for its employees and/or contractors. If buyer gives such a notice, seller must ensure that any of seller’s personnel without the required security clearance do not access buyer’s confidential information.seller must use its best endeavours to ensure that all of seller’s personnel who have a security clearance promptly advise the agency granting the clearance of any change to their personal circumstances that may be relevant to the grant of the security clearance.seller is responsible for the costs of seller’s personnel obtaining and maintaining security clearances and undertaking other vetting or suitability screening processes required under this clause REF _Ref506295387 \r \h \* MERGEFORMAT 4.4.Confidentiality deedsIf requested by buyer in a notice, seller must ensure that all of seller’s personnel who have or may have access to buyer’s confidential information execute and deliver to buyer a confidentiality deed substantially in the form of REF _Ref518044574 \r \h Schedule I (at no additional cost to buyer).If buyer has made a request under clause REF _Ref506276583 \r \h \* MERGEFORMAT 4.5.1, seller must ensure that any of seller’s personnel who have not executed and delivered a deed in accordance with clause REF _Ref506276583 \r \h \* MERGEFORMAT 4.5.1 do not have any access to buyer’s confidential information.Work health and safetyWhen delivering products and services under this contract, seller must:ensure that the delivery is done in a manner that does not pose any avoidable health or safety risk to seller’s personnel, buyer’s personnel or any other person;identify all reasonably foreseeable hazards that could give rise to a risk to health or safety;ensure that risk assessments are conducted for risks to the health and safety to seller’s personnel, buyer’s personnel and any other person;ensure that control measures are in place to mitigate identified risks to health or safety;consult, cooperate and coordinate activities in relation to health and safety matters with other persons who have a health and safety duty in relation to the activities; andnotify buyer (providing full details) and the relevant regulator if a “notifiable event” (within the meaning of that term in the Work Health and Safety Act 2011 (Cth) or a corresponding State or Territory law) occurs.Workplace gender equityThis clause REF _Ref506279970 \r \h \* MERGEFORMAT 4.7 applies if seller is or becomes a “relevant employer” within the meaning of that term in WGEA.seller must comply with its obligations under WGEA.If seller becomes non-compliant with WGEA, it must:immediately notify buyer of the non-compliance with WGEA;become compliant with WGEA within 40 business days from the date of non-compliance; andnotify buyer when it becomes compliant with WGEA.On each anniversary of the commencement date during the term, seller must provide a notice to buyer that includes a letter from the Workplace Gender Equality Agency confirming that seller is currently compliant with WGEA.Indigenous procurement policyseller notes that it is Australian Government policy to stimulate Indigenous entrepreneurship and business development, providing Indigenous Australians with more opportunities to participate in the economy.When delivering products and services under this contract, seller must use reasonable endeavours to increase its purchasing from Indigenous enterprises (including by entering into subcontracts with Indigenous enterprises and using Indigenous enterprises in seller’s supply chain) and its employment of Indigenous Australians.If requested by buyer in a notice, seller must provide a written report (including appropriate evidence) to buyer demonstrating seller’s compliance with this clause REF _Ref506279174 \r \h \* MERGEFORMAT 4.8 at no additional cost to buyer.Delivery and PaymentDelivery of productsNote: This contract only applies to software that is installed on buyer’s systems on buyer’s premises.Software supplyApplication: Unless specified otherwise in REF _Ref517959925 \r \h Section 1 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, the licence terms specified in this clause REF _Ref518731923 \r \h 5.1 apply to all software supplied under this contract. Licence: Prior to delivering any software to buyer, seller grants (or will procure from a third party) to buyer a licence to use the software:for government purposes;in accordance with the licence metrics; andfor the software licence period,and to assign the licence to another agency or outsource supplier, on the same terms but at no additional cost to buyer or the assignee, unless specified otherwise in REF _Ref518634471 \n \h Section 1 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C.Restrictions: buyer must:not make any changes to the source code for the software or otherwise attempt to derive the source code from object code (or allow any other person it permits to use the software to do either of those things); anduse reasonable care and protection to prevent the unauthorised use, copying, publication or dissemination of the software.Open source software: To the extent all or any part of the software is licensed under an open source software licence:seller must seek buyer’s approval to incorporate the open source software prior to supplying the software; andif buyer gives its approval, the terms of that licence apply to that open source software and prevail over the terms of this contract to the extent of any inconsistency. No click wrap terms: The terms of the software licence granted under clause REF _Ref506227510 \r \h \* MERGEFORMAT 5.1.1 apply to the exclusion of any shrink-wrap, click-wrap, standard end user licence agreement (EULA) or similar seller terms normally applying to the software. If user ‘acceptance’ of such terms is necessary in order to install or use the software, such acceptance is deemed to be acceptance of the terms of this software licence, to the exclusion of all others. Period of licence: If no software licence period is set out in REF _Ref517959925 \r \h Section 1 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, the software licence period is perpetual. Audit: seller may, not more than once per calendar year, request that buyer provide a written statement confirming that to the best of its knowledge following reasonable enquiry, buyer’s use of the software is consistent with the terms of the licence for software. buyer must comply with such a request within a reasonable period following receipt of the request. Rebranding: If the software (or any part of the software) is bundled, unbundled, rebranded or renamed (rebranding), buyer’s rights under this contract will continue despite any rebranding without additional charge. Buyer’s data: The output of the software is buyer’s data and is owned by buyer. seller must not without buyer’s prior written consent remove buyer’s data or allow buyer’s data to be removed from buyer’s premises. Change of designated equipment: If REF _Ref517959925 \r \h Section 1 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C specifies that use of the software is restricted to a particular processor, buyer may:subject to the written consent of seller (which must not be unreasonably withheld), transfer the software to an alternative processor of substantially the same capacity and performance; anduse the software on any back-up hardware while the specified hardware is for any reason temporarily unavailable. Termination of licence: Within 30 days after the end of the software licence period, buyer will destroy or return to seller all copies of the software and all related documentation (other than retaining one copy for archival purposes subject to any restrictions specified in REF _Ref517959925 \r \h Section 1 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C).Delivery of services Delivery and installation services seller must:deliver and install the software in accordance with REF _Ref518756730 \r \h Section 2 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C including the specified delivery locations, delivery times and delivery milestones; andensure the software when installed (and for the software support period if applicable) provides the functions and meets the performance and other requirements of the specifications and documentation for the software in REF _Ref517959925 \r \h Section 1 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C.Software support servicesseller must provide the software support services specified in this clause REF _Ref517980299 \r \h 6.2 and REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C during the software support period. Unless specified otherwise in REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, seller must, at a minimum:make available to buyer updates and new releases for the software on the terms set out in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C and subject to the following conditions:buyer has no obligation to install an update or new release made available by seller;if buyer rejects the offer of an update or new release, seller must continue to maintain the version of the software which buyer is using until the expiry of 18 months (or alternative period specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C) from the date which the rejected update or new release was formally offered by seller to buyer;the charges for updates and new releases will be specified in REF _Ref505936660 \r \h \* MERGEFORMAT Schedule F, however seller will provide any update or new release at no cost where seller makes updates or new releases generally available to other government customers under similar circumstances at no cost; andthe terms of the software licence in clause REF _Ref518731922 \r \h 5.1 apply to all updates and new releases;promptly provide buyer the following information for any update or new release seller has made available to buyer or any other customers from time to time:the nature of the improvements and/or corrections contained in the update or new release;any adverse effects the update or new release may have on buyer’s systems, including any expected degradation in reliability, performance or functionality; andsufficient information to enable buyer to determine whether the update or new release will suit buyer’s requirements and comply with the specifications;fix defects in the software in accordance with clause REF _Ref506282679 \r \h \* MERGEFORMAT 6.2.3 below;ensure the software continues to operate in accordance with the specifications specified in REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C;provide a helpdesk service in accordance with the requirements in REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C;ensure all documentation for the software specified or referred to in REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C remains up to date at all times; andprovide the software support services outlined in this clause REF _Ref506753838 \r \h \* MERGEFORMAT 6.2 to meet the services levels specified in REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C.If buyer notifies seller of a defect during the software support period, seller must, in accordance with the service level response times specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C provide either defect correction information or other appropriate repair services required to ensure the defective software returns to operating at full functionality and compliance with the specifications.If seller is unable to rectify a defect in accordance with clause REF _Ref507247615 \r \h \* MERGEFORMAT 6.2.3, seller must:replace the defective software with alternative software that meets the specifications and the other software requirements in REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C and pay for the costs incurred by buyer as a result of the replacement; orif replacement is not possible, refund to buyer the charges for the defective software and pay the costs incurred by buyer to remove the software; andin either case, to the extent practical, implement measures to minimise disruption to buyer’s operations while the software is being replaced or removed. Any software defect correction services required during the warranty period for the software will be performed by seller at no charge. Unless specified otherwise in REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, the software support services do not include equipment maintenance or correction of defects caused by:operation of the software in contravention of buyer’s obligations under the contract including user documentation provided by seller;buyer’s failure to operate the software in accordance with the specifications; use by buyer of the software in an ICT environment other than specified in the specifications; orthe reproduction or adaptation of the software by buyer pursuant to the Copyright Act 1968 (Cth) section 47E or 47F.Training servicesseller must provide the training services (including training documentation), if any, specified in REF _Ref518756729 \r \h Section 4 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C in accordance with the specifications and service levels specified or referred to in that Schedule. General delivery requirements and warrantiesComplying with requirements and timeframesseller must ensure deliverables:comply with the specifications and other requirements specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C;meet the service levels specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C;are delivered in accordance with the delivery times; achieve acceptance by the applicable due date;comply with applicable Australian standards or, if there are no applicable Australian standards, any applicable international standards, including those specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C; andcomply with any other standards specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C.seller is responsible for ensuring buyer is placed in a position to, and with sufficient time to, perform buyer’s tasks required for successful acceptance of a deliverable or achievement of a delivery milestone in accordance with the requirements (including dates) specified in the contract.seller will comply with reasonable directions given by buyer that are consistent with the contract in relation to seller’s performance of its obligations under the contract.seller must:be a signatory to the Australian Packaging Covenant or comply with the requirements of the National Environment Protection (Used Packaging Materials) Measure (unless exempt by legislation); and have an environmental management system aligned to the ISO 14001 standard or alternatively, implement business processes that are aligned to the ISO 14001 standard within six months after the commencement of this contract.Documentationseller must provide buyer up-to-date technical and operator associated documentation containing sufficient information to enable buyer to make full use of the software at all times and that, at the time of delivery, meets any requirements for documentation specified in clause REF _Ref506561512 \r \h 7.2.3.Without limiting clause REF _Ref520381161 \r \h \* MERGEFORMAT 7.2.1, seller must give buyer the documentation specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C in the format and at the times specified in that Schedule. seller must ensure all documentation required to be provided with any service or product is:of a reasonable standard in terms of presentation, accuracy and scope;at the time of delivery, be current and accurate and consistent with the specifications;in English with all key terms, words and symbols adequately defined or explained; andif revised or replaced for any reason, the revisions or replacements are provided at no additional cost to buyer if buyer is at that time receiving software support services.Knowledge transfer and other assistanceIn providing any services, seller’s personnel must, at no additional cost to buyer, use reasonable efforts to transfer its knowledge about the services (and related products) to buyer’s personnel. General warrantiesClauses REF _Ref506303164 \r \h \* MERGEFORMAT 7.4 to REF _Ref506303167 \r \h \* MERGEFORMAT 7.8 do not limit any other warranties provided under this contract. seller warrants that:it has the rights, title, licences, interest, permits, registrations and property necessary to lawfully provide the deliverables; the deliverables will be:fit for the purposes, and meet the other requirements, set out in the specifications; and complete, accurate and free from material faults in design; andall materials (including documentation) supplied with the products and services will be sufficient to enable buyer to make full and proper use of the products and services.seller must notify buyer if anything happens or may happen that could affect any of the warranties in this contract or seller’s ability to perform its obligations under the contract. Specific product warrantiesseller represents and warrants:unless otherwise specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, the products are new and unused;the products are free from any security interest or other encumbrance; andthe products (and any media on which the products are provided) are free from defects in workmanship, design and materials.Specific service warranties seller represents and warrants it will perform the services using a professional degree of care, skill and diligence according to any applicable industry best practice standard. Third party warrantiesWhere seller supplies products that have been procured from a third party, seller assigns to buyer, to the extent practicable and to the extent permitted by law, the benefits of the warranties given by the third party. This assignment does not relieve seller of the warranties it provides directly to buyer under this contract. Harmful code seller must:take reasonable precautions (including using good industry practice) to ensure that it does not, and seller’s personnel do not; andensure it does not, and seller’s personnel do not, negligently or deliberately,introduce any harmful code into buyer’s systems or include any harmful code in any deliverable.If seller becomes aware that harmful code has been, or is likely to have been, introduced into buyer’s systems by buyer or buyer’s personnel or included in a deliverable, seller must:immediately notify buyer;take all necessary steps to eliminate the harmful code in a deliverable;if seller is in breach of clause REF _Ref507246161 \r \h \* MERGEFORMAT 7.8.1, take all necessary steps (at no additional cost to buyer) to eliminate the harmful code in buyer’s systems and repair any damage caused by the harmful code to buyer’s systems, subject to any directions given by buyer; andif seller is not in breach of clause REF _Ref507246161 \r \h \* MERGEFORMAT 7.8.1, if directed by buyer in a notice and in accordance with such direction, at buyer’s cost, eliminate the harmful code in buyer’s systems and repair any damage caused by the harmful code to buyer’s systems.EscrowIf specified in REF _Ref519245311 \r \h \* MERGEFORMAT Section 1 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, within 20 business days of the commencement date, seller must enter into an escrow arrangement in relation to the source code of the software in accordance with this clause REF _Ref507240529 \r \h \* MERGEFORMAT 7.9.An escrow agreement under this clause REF _Ref507240529 \r \h \* MERGEFORMAT 7.9 must:be an enforceable agreement between buyer, seller and a reputable escrow agent approved by buyer (acting reasonably);provide for seller to pay the fees of the escrow agent;require seller to deposit one copy of all escrow material (with the escrow agent within 5 business days of the commencement of the escrow agreement (at no additional cost to buyer), in a format that could be accessed by buyer without the use of any keys or codes that have not been provided to buyer;require seller to provide updated escrow material (including the most up-to-date source code) to the escrow agent (at no additional cost to buyer) no less frequently than every 90 business days during the term;require the escrow agent to hold the escrow material on behalf of buyer and seller and to keep the escrow material secure, for a period at least 20 business days after the end of the term;enable buyer (under the supervision of seller) to verify that the escrow material is complete and up-to-date; andrequire the escrow agent to release the escrow material to buyer on written demand (without reference to seller) if the demand complies with the requirements of this clause REF _Ref507240529 \r \h \* MERGEFORMAT 7.9.buyer may demand that the escrow agent releases the escrow material to buyer if:seller becomes insolvent or ceases to carry on business;seller is in material breach of its obligations under this contract relating to the support of the software and seller has not cured the breach within 10 business days of being required to do so in a notice from buyer to seller; orbuyer has terminated this contract under clause REF _Ref507242841 \r \h \* MERGEFORMAT 16.5,and buyer informs seller in a notice of its intention to demand the release of the escrow material from the escrow agent at least 10 business days before the demand on the escrow agent is made.AcceptanceAcceptance process seller must provide all deliverables to buyer for acceptance with a draft acceptance certificate, signed by seller, confirming that the deliverable meets all requirements for the deliverable under this contract.seller must:provide deliverables to buyer in accordance with any applicable requirements in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C relating to the timing and location of delivery including any delivery times and delivery locations; andachieve acceptance of any deliverables by the due dates specified or referred to in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C.By providing a deliverable to buyer for acceptance, seller warrants that the deliverable meets all requirements for the deliverable under this contract, including the specifications for the deliverable.If buyer receives a deliverable under clause REF _Ref506901291 \r \h \* MERGEFORMAT 8.1.1, within 10 business days (or an alternative period specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C or the acceptance test plan) buyer must conduct acceptance tests on the deliverable to assess whether the deliverable meets the acceptance criteria and specifications for the deliverable and either:accept the deliverable by signing the draft acceptance certificate provided with the deliverable and sending that certificate to seller; orreject the deliverable (because it does not meet the acceptance criteria and specifications for the deliverable and/or because the deliverable has one or more defects) by sending a notice to seller that includes the reasons for rejection.seller must (at no additional cost to buyer) provide any assistance reasonably requested by buyer in a notice in relation to the conduct of acceptance tests on a deliverable.buyer may not accept a deliverable in any other way other than signing an acceptance certificate for the deliverable. buyer is not taken to accept a deliverable because it accepts delivery of the deliverable or uses the deliverable.buyer’s acceptance of a deliverable does not waive or limit any right buyer has under this contract (including in relation to the remediation of defects) in relation to the quality of the deliverable.buyer must meet the costs of buyer’s acceptance testing unless a deliverable requires retesting because it was properly rejected by buyer under clause REF _Ref506903644 \r \h \* MERGEFORMAT 8.1.4, in which case buyer, by notice to seller, may require seller to reimburse buyer for buyer’s reasonable costs of the additional acceptance tests. If buyer issues a notice to seller under this clause, buyer’s reasonable costs of the additional acceptance tests are a debt due to buyer by seller.Acceptance test planThis clause REF _Ref506913570 \r \h \* MERGEFORMAT 8.2 only applies if Item REF _Ref506990733 \r \h \* MERGEFORMAT 13 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B requires an acceptance test plan.seller must prepare a draft acceptance test plan in the form of the template at REF _Ref518045536 \r \h Schedule D and provide it to buyer for approval within the time period specified in Item REF _Ref506990733 \r \h \* MERGEFORMAT 13 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B (or if no time period is specified, within 20 business days of the commencement date). If buyer does not approve the acceptance test plan, it may by notice give reasonable directions to seller to modify the acceptance test plan. seller must comply with such directions and, within 5 business days, resubmit the acceptance test plan to buyer for approval under this clause REF _Ref506919177 \r \h \* MERGEFORMAT 8.2.2.If buyer approves an acceptance test plan submitted under clause REF _Ref506919177 \r \h \* MERGEFORMAT 8.2.2, seller and buyer must prepare for the testing of deliverables, test deliverables and accept or reject deliverables in accordance with the approved acceptance test plan. If, in relation to a particular deliverable, the approved acceptance test plan is directly inconsistent with a requirement of clause REF _Ref506919451 \r \h \* MERGEFORMAT 8.1, the approved acceptance test plan prevails to the extent of the inconsistency.Intellectual property and moral rightsOverviewcontract material consists of existing material and new material. Unless expressly stated otherwise, this contract does not affect the ownership of intellectual property rights in existing material which will remain with either seller, a third party or buyer, as applicable.seller must obtain all necessary intellectual property rights permissions before including any existing material (other than buyer’s existing material) in the contract material or using that existing material to deliver the services. If a party is required to vest ownership of new material in the other party in accordance with this clause REF _Ref506727517 \r \h \* MERGEFORMAT 9, that party must do all things and execute all documents necessary or convenient to vest that material in the other party. Intellectual property rights in software This contract does not affect the ownership of intellectual property rights in software which will remain with either seller or a third party, as applicable. software is licensed to buyer on the terms specified in clause REF _Ref518731924 \r \h 5.1.Intellectual property rights in all other contract material This clause REF _Ref506730384 \r \h \* MERGEFORMAT 9.3 does not apply to software. seller grants to, or must obtain for, buyer a perpetual licence to use all existing material (other than buyer’s existing material) for government purposes. buyer grants seller a contract delivery licence to all buyer’s existing material. Ownership of intellectual property rights in new material will be in accordance with either Model A in clause REF _Ref506731847 \r \h \* MERGEFORMAT 9.3.5 or Model B in clause REF _Ref506731848 \r \h \* MERGEFORMAT 9.3.6, as specified in Item REF _Ref506756390 \r \h \* MERGEFORMAT 14 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B. If no ownership model is selected in REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B, Model A will apply. Model A: All intellectual property rights in new material will, upon their creation, vest in buyer. To the extent seller needs to use new material to perform its obligations under this contract, buyer grants seller a contract delivery licence to that new material. Model B: All intellectual property rights in new material will, upon their creation, vest in seller and seller grants buyer a perpetual licence to all intellectual property rights in the new material for any use for government purposes and buyer may assign the licence to another agency, on the same terms but at no additional cost to buyer or the assignee.IP warrantyseller warrants that:all contract material (other than existing material provided by buyer) and buyer’s use of that contract material will not infringe the intellectual property rights of any person; andit has the necessary rights to vest under clauses REF _Ref506732785 \r \h \* MERGEFORMAT 9.1 to REF _Ref506730384 \r \h \* MERGEFORMAT 9.3 and to grant the licences required or referred to under this clause REF _Ref506732879 \r \h \* MERGEFORMAT 9.Infringement claimsIf a claim of infringement of intellectual property rights or moral rights is made or threatened by a third party, buyer will allow seller, at seller’s expense, to either:obtain for buyer the right to continued use of the material; orreplace or modify the material so that the alleged infringement ceases, provided the material continues to provide buyer with equivalent functionality and performance as required in the specifications.Moral rightsseller represents and warrants that its performance of the contract (including provision of any material) or buyer’s use of material in accordance with the contract will not infringe the moral rights of seller’s personnel. seller must ensure that no seller’s personnel will institute, maintain or support any claim or proceeding against buyer or buyer’s personnel for infringement of any of their moral rights. Buyer assistance to sellerAccess to buyer material buyer must provide to seller the buyer material (if any) specified in Item REF _Ref506756598 \r \h \* MERGEFORMAT 15 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B. The buyer material will:to buyer’s reasonable knowledge and belief, be fit for the purpose stated in REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B; andremain the property of buyer and seller must identify it as such. seller must not, without buyer’s prior written approval, use buyer material other than for the purpose stated in REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B.seller’s obligations under the contract are not limited by buyer’s provision of this material. Use of buyer facilitiesbuyer must make the facilities specified in Item REF _Ref506756796 \r \h \* MERGEFORMAT 16 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B reasonably available to seller for its use in performing the contract. buyer warrants that:such facilities (including any equipment or software) will comply with the requirements specified in Item REF _Ref506756796 \r \h \* MERGEFORMAT 16 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B;such facilities will be maintained by buyer in accordance with the requirements (if any) in Item REF _Ref506756796 \r \h \* MERGEFORMAT 16 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B; andshould a facility fail at any time to meet the requirements in Item REF _Ref506756796 \r \h \* MERGEFORMAT 16 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B, without limiting any other rights of seller, buyer will take steps to ensure the facility meets the requirement as soon as practicable. Access to buyer facilitiesbuyer must provide seller access to buyer’s facilities specified in Item REF _Ref506757006 \r \h \* MERGEFORMAT 17 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B to enable seller to fulfil its obligations under the contract. buyer may temporarily deny seller access to buyer’s facilities, at its sole discretion. Site specification and preparationItem REF _Ref506757026 \r \h \* MERGEFORMAT 18 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B specifies the details (if any) of the implementation and environmental requirements of a service and/or product (site specifications) to allow buyer to prepare the site to meet those requirements. Unless specified otherwise in Item REF _Ref506757026 \r \h \* MERGEFORMAT 18 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B, buyer is responsible for preparing the site to meet the site specifications. Charges and payment Charges The charges are set out in REF _Ref506551499 \r \h \* MERGEFORMAT Schedule F and, subject to seller’s performance of its obligations in accordance with the contract, are payable by buyer in accordance with this clause REF _Ref506318370 \r \h \* MERGEFORMAT 11 and REF _Ref506551499 \r \h \* MERGEFORMAT Schedule F. The charges may be based on one or more of the following:time;unit;payment milestones;any other basis specified in REF _Ref506551499 \r \h \* MERGEFORMAT Schedule F.Invoices After acceptance of a deliverable or delivery milestone, or as otherwise specified in REF _Ref506318074 \r \h \* MERGEFORMAT Schedule F, seller must promptly deliver to buyer at the invoice address specified in Item REF _Ref507270771 \w \h \* MERGEFORMAT 19 of REF _Ref507270784 \r \h \* MERGEFORMAT Schedule B a correctly rendered invoice covering the charges payable. Paymentbuyer will make payment within 30 days of receiving a correctly rendered invoice, unless a different period is specified in REF _Ref506318074 \r \h \* MERGEFORMAT Schedule F.The parties agree that payments may be effected by electronic funds transfer in accordance with REF _Ref506318074 \r \h \* MERGEFORMAT Schedule F, or as otherwise agreed. If the parties dispute whether any amount included in an invoice is payable, buyer may withhold the disputed portion until the dispute is resolved but will pay the undisputed portion within the period specified in clause REF _Ref506319296 \r \h \* MERGEFORMAT 11.3.1.Service RebatesIf specified in REF _Ref506318074 \r \h \* MERGEFORMAT Schedule F and if seller is responsible for failing to achieve a service level, seller:must pay service rebates to buyer in accordance with REF _Ref506318074 \r \h \* MERGEFORMAT Schedule F;acknowledges that any service rebates calculated in accordance with REF _Ref506318074 \r \h \* MERGEFORMAT Schedule F are a genuine pre-estimate of the loss and damage buyer will suffer because of the service level failure;acknowledges that payment of any service rebates will be without prejudice to any other rights or remedies buyer has against seller under, or arising from, this contract because of the service level failure; andwill not be liable to pay any service rebates to the extent the service level failure was caused by buyer’s failure to comply with the contract.The parties agree that the total amount of service rebates payable by seller under this contract must not exceed the total amount of the charges payable to seller under this contract.GST and other taxesAll taxes imposed or levied in Australia or overseas in connection with this contract will be the responsibility of seller.In this clause REF _Ref507490363 \r \h \* MERGEFORMAT 11.5, a word or expression defined in the GST Act has the meaning given to it in that Act. If a party (supplier) makes a supply under or in connection with this contract in respect of which GST is payable, the recipient of the supply must pay to the supplier, an additional amount equal to the GST payable on the supply.Maximum charges payableNotwithstanding any other provision of this contract (other than clause REF _Ref520459748 \r \h 11.7) buyer has no liability to pay charges to seller to the extent that those charges exceed the maximum charges payable.Late payment of invoicesThis clause REF _Ref507409225 \r \h \* MERGEFORMAT 11.7 only applies where:the value of this contract is not more than $1 million (GST inclusive); andamount of the interest payable exceeds $100 (GST inclusive).buyer must pay interest on late payments to seller as follows:for payments made by buyer between 30 days and up to 60 days after the amount became due and payable, only where seller issues a correctly rendered invoice for the interest; orfor payments made by buyer more than 60 days after the amount became due and payable, buyer will pay the interest accrued together with the payment. Interest payable under this clause REF _Ref507409226 \r \h \* MERGEFORMAT 11.7 will be simple interest on the unpaid amount at the general interest charge rate, calculated in respect of each day after the amount was due and payable, up to and including the day buyer effects payment as represented by the following formula:SI = UA x GIC x D, where:SI = simple interest amount;UA = the unpaid amount;GIC=general interest charge rate; andD=the number of days from the day after payment was due up to and including the day when buyer’s system generates a payment request into the banking system for payment to seller. Right to recover moneyWithout limiting buyer’s rights or remedies under this contract or at law, if seller owes any debt to buyer in relation to this contract, buyer may do one or both of the following:deduct the amount of the debt from payment of any claim or monies owed to seller by buyer;give seller a notice requesting payment of the debt by seller.seller must pay the amount claimed by buyer in a notice issued under subclause 11.8.1. REF _Ref506372662 \r \h \* MERGEFORMAT b) within 30 days of the notice date. If any money owed to buyer is not received by the due date for payment, seller must pay buyer interest for each day of the delay at the general interest charge rate current at the due date for payment. Contract Management and PerformanceInformation managementPrivacyseller must, in relation to the performance of this contract:not do any act, omit any act or engage in any practice; ensure that seller’s personnel do not do any act, omit any act or engage in any practice; andensure that every subcontract makes it a breach of the subcontract by the subcontractor if the subcontractor does any act, omits any act or engages in any practice,that: if done or omitted by buyer, would be a breach of an Australian Privacy Principle under the Privacy Act 1988 (Cth); and/orwould be an interference with the privacy of an individual, within the meaning of that expression in the Privacy Act 1988 (Cth).seller must comply with, and ensure that seller’s personnel comply with, any privacy policy or guidelines specified at Item REF _Ref506757183 \r \h \* MERGEFORMAT 20 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B.seller must ensure that all of seller’s personnel who access personal information in relation to this contract are informed about seller’s obligations under this clause REF _Ref506449890 \r \h \* MERGEFORMAT 12.1.seller must immediately notify buyer if any of the following occur:seller receives a complaint from a third party about the handling of any personal information held or accessed by seller in relation to this contract;the Privacy Commissioner in any Australian jurisdiction requests information about or commences an investigation in relation to this contract; seller breaches its obligations under this clause REF _Ref506449378 \r \h \* MERGEFORMAT 12.1 or becomes aware of circumstances that may reasonably suggest that it could have breached its obligations under this clause.ConfidentialitySubject to clause REF _Ref506448126 \r \h \* MERGEFORMAT 12.2.2, seller must:keep buyer’s confidential information confidential;only use buyer’s confidential information for the purpose of performing this contract; and not disclose buyer’s confidential information to any third party except as expressly authorised by this contract or in a notice from buyer to seller.seller may disclose buyer’s confidential information as required by law or the rules of a securities exchange. However, any such disclosure must be the minimum disclosure required. Unless prevented by law, seller must inform buyer in a notice about any proposed disclosure of buyer’s confidential information under clause REF _Ref506454621 \r \h \* MERGEFORMAT 12.2.2.Clause REF _Ref506454673 \r \h \* MERGEFORMAT 12.2.1 does not prevent seller providing access to buyer’s confidential information to seller’s personnel, auditors and advisers on a confidential basis for purposes relating to this contract.Subject to clause REF _Ref506455725 \r \h \* MERGEFORMAT 12.2.6 buyer must:keep seller’s confidential information confidential;only use seller’s confidential information for purposes relating to this contract; and not disclose seller’s confidential information to any third party except as expressly authorised by this contract or in a notice from seller to buyer.buyer may disclose seller’s confidential information:as required by law (including under the Freedom of Information Act 1982 (Cth)); orpursuant to an accountability obligation.Unless prevented by law, buyer must inform seller about any proposed disclosure of seller’s confidential information under clause REF _Ref506757232 \r \h 12.2.6 REF _Ref506757234 \r \h a).Clause REF _Ref506456542 \r \h \* MERGEFORMAT 12.2.5 does not prevent buyer providing access to seller’s confidential information on a confidential basis to:buyer’s employees, contractors, auditors and advisers for purposes relating to this contract, or an agency, in relation to the operation of clause REF _Ref506840020 \r \h \* MERGEFORMAT 1.4 or for a purpose relating to the agency’s functions.If a party becomes aware that it has breached its obligations under this clause REF _Ref506458438 \r \h \* MERGEFORMAT 12.2, it must immediately notify the other party.Buyer’s dataseller must maintain any buyer’s data it holds securely and in accordance with Item REF _Ref518751009 \r \h 23 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B.seller is permitted to access and use buyer’s data for the sole purpose of performing this contract. seller has no rights in relation to buyer’s data.Unless authorised by buyer in a notice to seller, seller must not conduct any data mining activities in respect of buyer’s data.Unless authorised by buyer in a notice to seller, seller must not do anything to transfer custody or ownership of buyer’s data to a third party.seller must provide buyer access to buyer’s data as requested by buyer in a notice to seller.buyer may at any time issue reasonable directions to seller in a notice to comply with archival and information management requirements for buyer’s data that are necessary or desirable to enable buyer to comply with government policy. Subject to clause REF _Ref507242514 \r \h \* MERGEFORMAT 12.3.7, seller must comply with such directions.If seller (acting reasonably) considers complying with a direction under clause REF _Ref507242531 \r \h \* MERGEFORMAT 12.3.6 would materially increase its costs of performing this contract, within 15 business days it must notify buyer and propose a change to the contract under clause REF _Ref506462140 \r \h \* MERGEFORMAT 16.1 to give effect to buyer’s direction under clause REF _Ref507242531 \r \h \* MERGEFORMAT 12.3.6. If seller gives a notice under this clause REF _Ref507242514 \r \h \* MERGEFORMAT 12.3.7, seller is not required to comply with buyer’s direction under clause REF _Ref507242531 \r \h \* MERGEFORMAT 12.3.6 until the contract variation is agreed by the parties.Upon the expiry or termination of this contract, seller must:transfer all of buyer’s data to buyer, in accordance with any reasonable directions of buyer in a notice to seller, and ensure that any electronic buyer’s data is transferred to buyer in a usable format; andunless otherwise required by law or otherwise permitted in Item REF _Ref506757304 \r \h \* MERGEFORMAT 24 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B, delete all of buyer’s data from seller’s systems, provide buyer with confirmation that this has been done in a notice and return all buyer’s data that is in physical form to buyer.Recordsseller must maintain sufficient, accurate and up-to-date business and accounting records (including supporting documentation) of all transactions or events in relation to this contract (including records of all deliverables provided under this contract, and substantiation for all amounts claimed in any invoice issued under this contract) until the latter of 2 years after the termination or expiry of this contract and two years after the transaction or event.seller must ensure that the records maintained under clause REF _Ref506459887 \r \h \* MERGEFORMAT 12.4.1:are kept securely and not deleted or otherwise disposed of without buyer’s prior written authorisation to seller in a notice;are kept in a manner that enables them to be conveniently audited; and comply with any applicable accounting standards.Transferring data off-shoreseller must not transfer, store or access buyer’s confidential information outside Australia unless permitted in Item REF _Ref506757409 \r \h \* MERGEFORMAT 25 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B or in a notice from buyer to seller. Item REF _Ref506757409 \r \h \* MERGEFORMAT 25 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B or a notice from buyer may impose conditions on any such permission.seller must comply with any conditions in Item REF _Ref506757409 \r \h \* MERGEFORMAT 25 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B or in a notice under clause REF _Ref506455526 \r \h \* MERGEFORMAT 12.5.1.SecurityGeneral requirementsTo the extent they are applicable to seller’s performance of this contract, seller must perform all of its obligations under this contract in a manner that is consistent with:the Protective Security Policy Framework and the Commonwealth Information Security Manual; andany of buyer’s security Commonwealth policies specified in Item REF _Ref506757476 \r \h \* MERGEFORMAT 26 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B.When performing its obligations under this contract, seller must comply with:all security requirements specified in Item REF _Ref506757476 \r \h \* MERGEFORMAT 26 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B; andsubject to clause REF _Ref506466763 \r \h \* MERGEFORMAT 13.1.3, any direction relating to security given by buyer in a notice to seller (which may include a direction to comply with an additional security policy or requirement).If seller (acting reasonably) considers complying with a direction under clause REF _Ref506757524 \r \h 13.1.2 REF _Ref506466977 \r \h \* MERGEFORMAT b) would materially increase its costs of performing this contract, within 5 business days it must notify buyer and propose a change to the contract under clause REF _Ref506462140 \r \h \* MERGEFORMAT 16.1 to give effect to buyer’s direction under clause REF _Ref506757524 \r \h 13.1.2 REF _Ref506466977 \r \h \* MERGEFORMAT b). If seller gives a notice under this clause, seller is not required to comply with buyer’s direction under clause REF _Ref506757524 \r \h 13.1.2 REF _Ref506466977 \r \h \* MERGEFORMAT b) until the contract variation is agreed by the parties.Without limiting any other clause, seller must ensure that buyer’s data is protected against loss, damage, corruption, misuse and unauthorised access by taking security measures that are no less stringent than good industry practice.seller must immediately notify buyer if any of the following occur;seller breaches any of its obligations under this clause REF _Ref506467246 \r \h \* MERGEFORMAT 13;seller becomes aware of circumstances that may reasonably suggest that it could have breached its obligations under this clause REF _Ref506467246 \r \h \* MERGEFORMAT 13;seller becomes aware that any buyer’s data has been lost, stolen, misused, corrupted or accessed by an unauthorised person;seller becomes aware of circumstances that may reasonably suggest that any buyer’s data has been lost, stolen, corrupted or accessed by an unauthorised person.Physical securityseller must:ensure that seller’s premises are kept secure; ensure that buyer’s data in physical form is kept in appropriate security containers for its security classification; ensure that seller’s personnel who have access to buyer’s data are briefed on security requirements for buyer’s data; andat buyer’s request in a notice, provide details of seller’s physical security measures in place to protect buyer’s data.Cyber securityseller must take reasonable and prudent steps consistent with good industry practice to reduce the risk of cyber attack on seller’s systems.At buyer’s request in a notice, seller must provide details of seller’s security measures in place to reduce the risk of cyber attack on seller’s systems.If seller becomes aware of a cyber attack on seller’s systems, seller must immediately notify:buyer (and, if this notification is not done by notice, by notice within 1 business day); and if required by buyer, advise CERT Australia and/or the Australian Cyber Security rmation securityseller must:take reasonable and prudent steps for disaster recovery and business continuity consistent with good industry practice to ensure that buyer’s data on seller’s systems is not lost, corrupted or rendered inaccessible; ensure that access to seller’s systems is controlled so that only seller’s personnel with a need to access buyer’s data for a purpose relating to the performance of this contract are able to access buyer’s data; and ensure that seller’s systems are configured so that seller’s personnel who are not permitted under this contract to access buyer’s confidential information cannot access buyer’s confidential information.LiabilityLiabilityseller is responsible for any act or omission of seller’s personnel in relation to this contract, whether or not the act or omission is authorised by seller.Each party must use reasonable endeavours to mitigate its loss or damage relating to this contract where the other party is liable for the loss or damage (whether because of breach of this contract or otherwise).The liability of a party to the other party in relation to this contract (including under an indemnity) is reduced proportionately if the party incurring the loss or suffering the damage has contributed to the loss or damage through:a breach of its obligations under this contract; and/ora negligent or deliberately wrongful act or omission (including, in the case of seller, an act or omission by seller’s personnel, and in the case of buyer, an act or omission of buyer’s employees or officers).Limitations of liabilityIf an amount is included at Item REF _Ref506757579 \r \h \* MERGEFORMAT 27 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B, subject to clause REF _Ref506472679 \r \h \* MERGEFORMAT 14.2.2, the liability of each party to the other party in relation to this contract (including under an indemnity) is limited to that amount.The limitation of liability in clause REF _Ref506478307 \r \h \* MERGEFORMAT 14.2.1 does not apply to liability for any of the following:personal injury (including sickness and death);the loss of, or damage to, tangible property;for an infringement of intellectual property rights;for a breach of any obligation relating to confidentiality, privacy or security (including any obligation on seller relating to the protection of buyer’s data);for breach of statute law;a deliberately wrongful act or omission (including fraud and, in the case of seller, repudiation of this contract).Subject to clause REF _Ref506757620 \r \h \* MERGEFORMAT 14.2.4, neither party is liable to the other party for loss or damage of the following types:loss of goodwill;loss of business revenue, business opportunity or business profits.Clause REF _Ref506480855 \r \h \* MERGEFORMAT 14.2.3 does not prevent a party recovering from the other party loss or damage of the following type:additional internal or project costs;the cost of repairing or replacing deliverables;the cost of having additional services performed by a third party;legal fees.Subject to clause REF _Ref507414153 \r \h \* MERGEFORMAT 14.2.6, seller is not responsible for a failure to meet its obligations under this contract to the extent that the failure is directly caused by inaccurate or incomplete buyer’s data which is required by seller to perform the contract.seller is only entitled to the benefit of clause REF _Ref507414347 \r \h \* MERGEFORMAT 14.2.5 in relation to inaccurate or incomplete buyer’s data if seller notifies buyer immediately it becomes aware that the relevant buyer’s data is inaccurate or incomplete or is inconsistent with other buyer’s data. Indemnitiesseller indemnifies buyer and buyer’s employees, officers, agents and contractors against losses reasonably sustained or incurred by any of them as a result of any claim made or threatened by a third party (including a subcontractor) in relation to any of the following:a breach of this contract, including any breach of seller’s warranties in this contract;any claim that any deliverables provided by seller to buyer under this contract infringe the intellectual property rights of a third party; andany negligent or deliberately wrongful act or omission, or breach of law, in relation to this contract.buyer holds the benefit of the indemnity in clause REF _Ref506486807 \r \h \* MERGEFORMAT 14.3.1 on trust for buyer’s employees, officers, agents and contractors.For the purpose of clause REF _Ref506486807 \r \h \* MERGEFORMAT 14.3.1, a claim by a third party that it is entitled to payment from buyer in relation to its use of deliverables provided by seller to buyer under this contract is taken to be a claim by the third party that the deliverables infringe the third party’s intellectual property rights, despite statutory provisions providing protection to the Commonwealth for infringement of intellectual property rights (for example, section 183 of the Copyright Act 1968 (Cth)).To enforce the indemnity in clause REF _Ref506486807 \r \h \* MERGEFORMAT 14.3.1, buyer must:notify seller;subject to clause REF _Ref506488444 \r \h \* MERGEFORMAT 14.3.5, permit seller, at seller’s expense, to manage settlement negotiations and any litigation with the third party; andif seller does manage settlement negotiations and any litigation with the third party, to provide (at seller’s request in a notice) reasonable assistance to seller in relation to the negotiations or litigation.If seller handles settlement negotiations and any litigation with the third party under clause REF _Ref506488877 \r \h \* MERGEFORMAT 14.3.4, seller must:comply with law (including the legal services directions) and government policy in relation to the negotiations and/or litigation as if seller was an agency of the same type as buyer;comply with any direction issued by the Commonwealth Attorney-General to buyer (and notified to seller) in relation to the negotiations and/or litigation; andpromptly provide buyer with any information reasonably requested by buyer in a notice to seller in relation to the negotiations and/or litigation (including all information required by buyer to comply with reporting obligations under the legal services directions).The rights of buyer and its employees, officers, agents and contractors under clause REF _Ref506486807 \r \h \* MERGEFORMAT 14.3.1 are in addition to any other rights.Insuranceseller must maintain the following insurance policies on ordinary terms with no unusual exclusions:workers compensation insurance, during the term, as required by law;public liability insurance, in an amount of at least the value specified in Item REF _Ref506757705 \r \h \* MERGEFORMAT 28 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B;if seller provides services under this contract, professional indemnity insurance, in an amount of at least the value specified in Item REF _Ref506757735 \r \h \* MERGEFORMAT 29 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B;if seller provides products under this contract, product liability insurance, in an amount of at least the value specified in Item REF _Ref506757787 \r \h \* MERGEFORMAT 30 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B; andany other insurance specified in Item REF _Ref506757802 \r \h \* MERGEFORMAT 31 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B, in an amount of at least the value specified in Item REF _Ref506757802 \r \h \* MERGEFORMAT 31.All amounts specified in clause REF _Ref506490020 \r \h \* MERGEFORMAT 14.4.1 are per claim (or series of related claims).seller must maintain all insurance policies required under clause REF _Ref506490020 \r \h \* MERGEFORMAT 14.4.1 during the term, other than “claims made” polices which must be maintained for at least 2 years (or such longer period if any specified in Item REF _Ref507419841 \r \h \* MERGEFORMAT 32 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B) after the expiry or termination of this contract.If requested by buyer in a notice, seller must provide buyer with certificates of currency of all insurance policies required under clause REF _Ref506490020 \r \h \* MERGEFORMAT 14.4.1 and details of the extent of cover.Management of performance issuesDefectsIf seller delivers any deliverable to buyer for acceptance and buyer rejects the deliverable, on the basis of acceptance tests, because the deliverable has a defect, seller must (at no additional cost to buyer) remedy the defect and resubmit the deliverable without defects to buyer for acceptance. If seller delivers any deliverable to buyer and buyer accepts the deliverable but:the deliverable has a defect; andduring the warranty period for that deliverable, buyer notifies seller that the deliverable has the defect,seller must (at no additional cost to buyer) remedy the defect within 10 business days of the date on which it was notified of the defect.If seller does not comply with its obligations under clause REF _Ref506838225 \r \h \* MERGEFORMAT 15.1.2 to remedy a defect in a deliverable within 10 business days of a notice from buyer, buyer may remedy the defect and, by notice to seller, require seller to reimburse buyer for buyer’s reasonable costs of remediation. If buyer issues a notice to seller under this clause, buyer’s reasonable costs of remediation of the defect are a debt due to buyer by seller.buyer’s rights under this clause REF _Ref507253225 \r \h \* MERGEFORMAT 15.1 are in addition to any rights buyer has in relation to defects under clause REF _Ref507253274 \r \h \* MERGEFORMAT 6.2.Changing and ending the contractVariationOther than as expressly provided in this contract, this contract may only be varied in writing, signed by the parties. buyer is not responsible for any additional charges or for any additional costs incurred by seller in relation to a proposed variation until the variation is recorded in writing and is signed by the parties.If a party proposes a change to the contract, that party must complete REF _Ref511952358 \r \h \* MERGEFORMAT Schedule G in relation to the proposed change and include the completed change order in a notice to the other party for that party’s consideration.If a limitation of liability amount is included at Item REF _Ref506757579 \r \h \* MERGEFORMAT 27 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B and the risks relating to this contract for a party would increase or decrease as a result of a proposed variation of this contract, the parties must negotiate in good faith (as part of negotiations for the variation) to increase or decrease the limitation of liability amount to reflect the changed risks.Each party must meet its own costs of varying the contract under this clause REF _Ref506361673 \r \h \* MERGEFORMAT 16.1.Buyer directionsIf buyer (acting reasonably) considers that seller will not meet, or has not met, its obligations under this contract, buyer may give seller a reasonable direction in a notice to minimise the impact of seller’s actual or prospective breach of this contract on buyer. seller must comply with any direction given by buyer under this clause REF _Ref506360866 \r \h \* MERGEFORMAT 16.2.1.Pricing contract variationsseller may only propose increased charges for a contract variation when completing REF _Ref511952358 \r \h \* MERGEFORMAT Schedule G under clause REF _Ref506359606 \r \h \* MERGEFORMAT 16.1.2 if the proposed variation would involve seller incurring additional costs, compared to the costs of performing the contract without the variation. seller must ensure that such increased charges are reasonable, calculated on the same basis as REF _Ref506551499 \r \h \* MERGEFORMAT Schedule F and, if requested by buyer in a notice to seller, substantiated.If REF _Ref506551499 \r \h \* MERGEFORMAT Schedule F includes a pricing mechanism for contract variations, seller must apply that mechanism when proposing increased charges for a contract variation when completing REF _Ref511952358 \r \h \* MERGEFORMAT Schedule G under clause REF _Ref506359606 \r \h \* MERGEFORMAT 16.1.2.Termination and reduction for conveniencebuyer may by notice to seller terminate or partially reduce the scope of this contract with immediate effect for buyer’s convenience.If buyer gives seller a notice under clause REF _Ref506363240 \r \h \* MERGEFORMAT 16.4.1, seller must immediately:in the case of a termination, stop the delivery of products and services under this contract;in the case of a partial reduction in scope, stop the delivery of products and services under this contract covered by the reduction in scope but continue the delivery of all other products and services under this contract; andin either case, take all practical steps to mitigate its loss arising from the termination or partial reduction in scope.If buyer exercises its right to terminate or partially reduce the scope of this contract under this clause REF _Ref506364038 \r \h \* MERGEFORMAT 16.4:buyer has no liability to seller in relation to the termination or reduction of scope other than as provided by this clause REF _Ref506364615 \r \h \* MERGEFORMAT 16.4.3;buyer has no liability to seller in relation to loss of future or prospective charges or profits;buyer has no liability to seller under this clause REF _Ref506364615 \r \h \* MERGEFORMAT 16.4.3 for any amount, when aggregated with other charges paid or payable by buyer, exceeds the maximum charges payable;seller may recover charges for any products or services properly delivered in accordance with this contract up to the date of the termination or reduction of scope;seller may recover costs directly relating to the termination that were unavoidably incurred in the proper performance of this contract, that cannot be mitigated and that can be substantiated to the reasonable satisfaction of buyer; andin the case of a reduction of scope, buyer and seller will negotiate in good faith on whether any ongoing charges of a recurring nature should be reduced to reflect the reduced scope of the contract and, if so, the amount of the reduction (such reduction to be agreed through the variation process in clause REF _Ref506365898 \r \h \* MERGEFORMAT 16.1).Termination by buyer for defaultbuyer may by notice to seller terminate or partially reduce the scope of this contract with immediate effect if any of the following apply:seller is in breach of this contract and seller has not cured the breach within 10 business days of being required to do so in a notice from buyer to seller;seller is in material breach of this contract and the breach cannot be cured;seller is in material breach of this contract and the breach results, or is likely to result, in material damage to buyer’s reputation and/or the Australian Government’s reputation;seller is in breach of any of the following clauses: REF _Ref507421020 \r \h \* MERGEFORMAT 3.3, REF _Ref506368482 \r \h \* MERGEFORMAT 3.6, REF _Ref506371460 \r \h \* MERGEFORMAT 3.10, REF _Ref518731925 \r \h 4.1, REF _Ref507421084 \r \h \* MERGEFORMAT 4.2, REF _Ref507421100 \r \h \* MERGEFORMAT 4.4, REF _Ref507421130 \r \h \* MERGEFORMAT 4.5, REF _Ref506371049 \r \h \* MERGEFORMAT 4.6 REF _Ref506369519 \r \h \* MERGEFORMAT 4.7, REF _Ref507421173 \r \h \* MERGEFORMAT 4.8, REF _Ref507421198 \r \h \* MERGEFORMAT 7.8, REF _Ref507421226 \r \h \* MERGEFORMAT 7.9, REF _Ref506732785 \r \h \* MERGEFORMAT 9.1, REF _Ref507421510 \r \h \* MERGEFORMAT 9.2, REF _Ref507421526 \r \h \* MERGEFORMAT 9.3, REF _Ref507424200 \r \h \* MERGEFORMAT 9.4, REF _Ref507421649 \r \h \* MERGEFORMAT 9.6, REF _Ref507421427 \r \h \* MERGEFORMAT 12, REF _Ref506369687 \r \h \* MERGEFORMAT 13, REF _Ref506369735 \r \h \* MERGEFORMAT 14.4, and the breach is not immaterial;seller fails to give a notice under clause REF _Ref506371945 \r \h \* MERGEFORMAT 3.3.1 in circumstances where the notice was required to be given;seller gives a notice under clause REF _Ref506371945 \r \h \* MERGEFORMAT 3.3.1; buyer (in its discretion) considers that it has or may be adversely affected by the matters set out in the notice; and buyer’s right to terminate on the basis of the matters set out in the notice is not stayed by operation of law;seller fails to notify buyer of a conflict of interest in breach of its warranty in clause REF _Ref506371848 \r \h \* MERGEFORMAT 3.8.1;seller or any seller’s personnel have a conflict of interest that cannot be managed to the reasonable satisfaction of buyer;seller fails to comply with a direction by buyer under clause REF _Ref506371567 \r \h \* MERGEFORMAT 3.8.2;seller is in breach of the warranty in clause REF _Ref506372355 \r \h \* MERGEFORMAT 9.4;the improper or illegal conduct of seller or seller’s personnel (whether or not in connection with this contract) results in significant damage to buyer’s reputation and/or the Australian Government’s reputation in relation to this contract.Termination by seller for defaultseller may only terminate this contract in accordance with this clause REF _Ref506372418 \r \h \* MERGEFORMAT 16.6.If buyer fails to comply with its obligation to pay a correctly rendered invoice under clause REF _Ref506318370 \r \h \* MERGEFORMAT 11 for more than 60 days after the due date, seller may demand immediate payment by sending a notice to buyer and also providing a copy of the notice to the invoice address.If a correctly rendered invoice remains unpaid for a period of 30 days after the date of a notice from seller under clause REF _Ref506373864 \r \h \* MERGEFORMAT 16.6.2 relating to the invoice, buyer may make a further demand for immediate payment by sending a notice to buyer and also providing a copy of the notice to the invoice address. seller must ensure that the notice refers to seller’s right to terminate this contract under this clause REF _Ref506374565 \r \h \* MERGEFORMAT 16.6.Subject to clause REF _Ref506374311 \r \h \* MERGEFORMAT 16.6.5, if a correctly rendered invoice remains unpaid for a period of 30 days after the date of a notice from seller under clause REF _Ref506374468 \r \h \* MERGEFORMAT 16.6.3, seller may terminate this contract with 5 business days’ notice by giving a notice to buyer.seller may not terminate this contract under this clause REF _Ref506374869 \r \h \* MERGEFORMAT 16.6 because of buyer’s failure to pay an invoice if buyer has paid all undisputed amounts claimed by seller in the invoice and:the issue of whether the disputed amounts are payable under this contract is an issue or a dispute; andthe procedure in clauses REF _Ref506125958 \r \h \* MERGEFORMAT 3.9.1 to clause REF _Ref506191860 \r \h \* MERGEFORMAT 3.9.11 has commenced but has not concluded in relation to the issue or dispute.If buyer refuses to accept a deliverable in breach of this contract and:the issue of whether buyer is required to accept the deliverable is a dispute; andthe procedure in clauses REF _Ref506125958 \r \h \* MERGEFORMAT 3.9.1 to clause REF _Ref506191860 \r \h \* MERGEFORMAT 3.9.11 has concluded in relation to the dispute without the dispute being resolved,seller may notify buyer that it proposes to terminate this contract under this clause REF _Ref506530380 \r \h \* MERGEFORMAT 16.6 because the dispute remains unresolved.If seller gives buyer a notice under clause REF _Ref506530930 \r \h \* MERGEFORMAT 16.6.6 and the dispute remains unresolved for a further 10 business days, seller may terminate this contract by giving a notice to buyer. seller must give 5 business days’ notice of termination under this clause REF _Ref506531027 \r \h \* MERGEFORMAT 16.6.7.If seller terminates this contract under this clause REF _Ref506531063 \r \h \* MERGEFORMAT 16.6, buyer has no liability to seller in relation to loss of future or prospective charges or profits.Consequences of terminationThe termination of this contract does not affect any liability of a party to the other party arising before termination.In addition to the operation of clause REF _Ref506376364 \r \h \* MERGEFORMAT 3.6.9, clause REF _Ref506459887 \r \h \* MERGEFORMAT 12.4.1 and clause REF _Ref506991606 \r \h \* MERGEFORMAT 14.4.3, the following clauses have continuing operation and survive the expiry or termination of this contract: REF _Ref507420794 \r \h \* MERGEFORMAT 1.5, REF _Ref506376543 \r \h \* MERGEFORMAT 1.6, REF _Ref506376578 \r \h \* MERGEFORMAT 3.5, REF _Ref506376639 \r \h \* MERGEFORMAT 3.6, REF _Ref506376591 \r \h \* MERGEFORMAT 3.7, REF _Ref507420423 \r \h \* MERGEFORMAT 3.9, REF _Ref518732289 \r \h 5.1, REF _Ref506377769 \r \h \* MERGEFORMAT 7.3, REF _Ref506377808 \r \h \* MERGEFORMAT 7.4, REF _Ref506377828 \r \h \* MERGEFORMAT 7.5, REF _Ref506377840 \r \h \* MERGEFORMAT 7.6, REF _Ref520450669 \r \h 7.7, REF _Ref506377939 \r \h \* MERGEFORMAT 7.8, REF _Ref507420605 \r \h \* MERGEFORMAT 7.9, REF _Ref506377963 \r \h \* MERGEFORMAT 9, REF _Ref506318370 \r \h \* MERGEFORMAT 11, REF _Ref506376684 \r \h \* MERGEFORMAT 12, REF _Ref506376752 \r \h \* MERGEFORMAT 13, REF _Ref506376776 \r \h \* MERGEFORMAT 14, REF _Ref507137134 \r \h \* MERGEFORMAT 16.8.General termination assistanceFollowing the termination or expiry of this contract, at buyer’s request in a notice, seller must provide reasonable transition assistance to buyer, including by making seller’s personnel available for discussions with buyer and providing any information relating to the products or services that is reasonably requested by buyer.Executed by the parties as an agreementExecuted for and on behalf of the Commonwealthof Australia, as represented by [insert name ofbuyer] ABN [insert ABN of buyer](Signature)(Name)(Position)Date of execution:XX/XX/20XXExecuted by [insert name of seller] ABN [insert ABN of seller]in accordance with section 127 of the Corporations Act 2001 (Cth)(Signature) (Name)Director(Signature)(Name)Director/Company Secretary (delete one) Date of execution:XX/XX/20XX – GlossaryTermMeaningacceptance in relation to a deliverable, confirmation by buyer that acceptance tests demonstrate the deliverable meets the acceptance criteria and specifications for the deliverable and that no defects are apparent in the deliverableacceptance certificatein relation to a deliverable, a certificate substantially in the form of REF _Ref506920106 \r \h \* MERGEFORMAT Schedule E, signed by buyer and seller, certifying that the deliverable complies with the acceptance criteria for the deliverableacceptance criteriain relation to a deliverable:if there is an acceptance test plan that applies to the deliverable, the acceptance criteria for that deliverable in the acceptance test plan; orif there is no acceptance test plan applying to the deliverable, the acceptance criteria for the deliverable set out in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C or, if no acceptance criteria are set out in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, the requirements for the deliverable set out in this contractacceptance test plana plan substantially in the form of REF _Ref506551470 \r \h \* MERGEFORMAT Schedule Dacceptance testsin relation to a deliverable:if there is an acceptance test plan that applies to the deliverable, the acceptance tests for that deliverable in the acceptance test plan; orif there is no acceptance test plan applying to the deliverable, the acceptance tests for the deliverable set out in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C or, if no acceptance tests are set out in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, such tests or other activities that buyer (acting reasonably) determines to assess whether the deliverable complies with the acceptance criteria for the deliverableaccountability bodythe Commonwealth Parliament (including Committees); a Commonwealth Minister; the Auditor-General (including the Australian National Audit Office); the Australian Privacy Commissioner; the Commonwealth Ombudsman; and any person (including a commission or inquiry) whose functions include reviewing, inquiring into, auditing or investigating buyeraccountability obligationany obligation under a law, requirement under Commonwealth policy or request by an accountability body for buyer to provide information relating to this contractagencya corporate Commonwealth entity or a non-corporate Commonwealth entity (within the meaning of PGPA)approvala confirmation by buyer given in a notice to seller that a document or action appears to meet the requirements of this contract but does not:limit seller’s responsibility to ensure the document or action meets the requirements of the contract; orwaive any right buyer has under this contract if the document or action does not meet such requirements. auditincludes investigate and/or reviewbusiness dayany day other than a Saturday, a Sunday or a public holiday in the Australian Capital Territorybuyerthe agency named as buyer on the first page of this contract or, if other agency commences performing the functions to which this contract relates because of a machinery of government change, that agencybuyer’s addressthe address of buyer noted on the first page of this contractbuyer’s confidential informationinformation in one or more of the following categories:information described in Item REF _Ref507419843 \r \h \* MERGEFORMAT 21 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B;information of buyer held or accessed by seller that is personal information, security classified information (including with delimiting markers), information protected by statutory confidentiality provisions, information marked “confidential” (or marked in some other way that indicates it is confidential) and/or information that relates to buyer’s customers, commercial dealings, technology systems, finances, compliance programs and/or security systems and/or procedures;information developed by seller using information in one of the above categories,but does not include information in either of the following categories:information in the public domain (otherwise than as a consequence of a breach of this contract);information independently held or developed by seller without reference or reliance on any information of buyer held or accessed by sellerbuyer’s dataany of the following held or accessed by seller in relation to this contract:buyer’s confidential information;other information or document provided by buyer to seller;information developed by seller that incorporates, modifies or supplements buyer’s confidential information or other information or document provided by buyer to sellerbuyer dependencyany action by buyer specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C required to enable seller to achieve acceptance of deliverables or the achievement of delivery milestones and includes acceptance testingbuyer’s representativethe person named as buyer’s representative in Item REF _Ref506967955 \r \h \* MERGEFORMAT 7 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B, as updated in accordance with clause REF _Ref505937178 \r \h \* MERGEFORMAT 3.1.2buyer’s personnelemployees, contractors, customers and visitors of buyer and other persons providing services to buyer at buyer’s premisesbuyer’s premisesany business or office premises occupied by buyer to carry out its functions buyer’s systemsany computer system used by buyer (including cloud systems) to carry out its functionschargesthe charges payable by buyer for seller’s provision of deliverables under this contract, as specified in REF _Ref506551499 \w \h \* MERGEFORMAT Schedule Fcommencement datethe date in Item REF _Ref507249717 \r \h \* MERGEFORMAT 4 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B; or if no date is specified, the date this contract is signed by both partiescommercial exploitationany commercial exploitation, but does not include any use, support, maintenance, modification, enhancement or other activity in relation to the material, where such activities are conducted by a service provider engaged by buyer or another agency to provide services to buyer or another agency on commercial termsconfidential informationbuyer’s confidential information or seller’s confidential informationconflict of interestany circumstance where seller or one or more seller’s personnel:currently has;is likely in the future to have; oris likely to be perceived by a reasonable fair-minded third party to have now or in the future, a personal interest or a duty to a third party that conflicts with the diligent and proper performance of this contract for buyer’s benefitcontract delivery licencea world-wide, royalty-free, non-exclusive, non-transferable licence for the term (including the right to sub-license) to use, reproduce, adapt, modify and communicate the material solely for the purpose of performing this contractcontract materialmaterial that is delivered or required to be delivered to buyer for the purpose of or as a result of performing its obligations under this contract and includes existing material and new materialcontract representativebuyer’s representative and seller’s representativecorrectly rendered invoicean invoice that:is correctly addressed in accordance with Item REF _Ref507270771 \r \h \* MERGEFORMAT 19 of REF _Ref507270784 \r \h \* MERGEFORMAT Schedule B;contains amounts calculated in accordance with REF _Ref506551499 \r \h \* MERGEFORMAT Schedule F;relates only to the products and/or services that have been delivered to buyer in accordance with this contract;contains sufficient detail to enable buyer to identify:the applicable deliverable or delivery milestone;when the deliverable was supplied;the amount payable in respect of each item;if submitted in relation to a deliverable that requires acceptance, is accompanied by all relevant acceptance certificates;sets out the amount paid by buyer as GST for taxable supplies made under this contract; is a valid tax invoice in accordance with the GST Act; andmeets any other requirement specified in REF _Ref506551499 \r \h \* MERGEFORMAT Schedule F, or as otherwise agreed by the parties in writingcyber attackany action taken through the use of computer networks or any unauthorised access to or use of a computer system that is intended to have, is likely to have or does have an adverse effect on the security or reliability of data on the system or the accessibility of the system, and includes denial of service attacksdefecta deliverable, or any part of a deliverable, where one or more of the following apply: it does not conform to specifications;it has an error;it is damaged or lost;it is not fit for buyer’s purposes, as described in this contract;it adversely affects buyer’s systems;it otherwise does not comply with the requirements of this contractdeliverableany product, service or other material required to be provided by seller under this contractdelivery timethe time by which seller must deliver a deliverable, as specified in REF _Ref506550068 \w \h \* MERGEFORMAT Schedule Cdelivery locationthe location to which seller must deliver a deliverable, as specified in REF _Ref506550068 \w \h \* MERGEFORMAT Schedule Cdelivery milestonea milestone for acceptance of one or more deliverables and/or completion of other activities as specified in REF _Ref506550068 \w \h \* MERGEFORMAT Schedule C documentation the documentation (including publications and aids) required to be provided by seller under this contract, including that information specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C disputean issue that has been the subject of a notice under clause REF _Ref506188620 \r \h \* MERGEFORMAT 3.9.7due datein relation to a deliverable or a delivery milestone, the date by which the deliverable must be accepted, or the delivery milestone must be achieved, as specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Cend datethe date in Item REF _Ref506758455 \r \h \* MERGEFORMAT 5 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B or if no date is specified, but a time period is specified, the date that is the last day of that time period, commencing on the commencement date environmental management system has the meaning given to the term in the ICT sustainability planescrow materialthe source code of the software and all relevant documentation, notes and other materials required to support the softwareexisting materialany material, other than new material, in which a party or a third party holds intellectual property rights, and which is made available by a party for the purpose of this contractgeneral interest charge ratethe general interest charge rate determined under section 8AAD of the Taxation Administration Act 1953 (Cth) on the day the payment is due, expressed as a decimal rate per daygovernment purposesany purpose for which the Commonwealth of Australia may make laws or take executive action, including the provision of shared services, but does not include commercial exploitationGST Actthe A New Tax System (Goods and Services Tax Act) 1999 (Cth)harmful codeany virus, denial of service, disabling or malicious device or code, ‘worm’, ‘trojan’, ‘time bomb’, or other harmful or destructive code, but does not include any ‘software lock’ or other technical mechanism that is included to manage the proper use of any softwareICTinformation and communications technologyICT sustainability planthe Australian Government’s ICT sustainability plan 2010-2015 or any successor planIndigenous enterprisean organisation that is 50 per cent or more Indigenous owned that is operating a businessindividual contractoran individual engaged by seller who is managed and performs duties in a similar way to seller’s employeesan individual engaged by a seller group company who is managed and performs duties in a similar way to seller group company’s employeesintellectual property rightsall intellectual property rights, whether or not such rights are registered or capable of being registered, including but not limited to, the following: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); andall rights of a similar nature to any of the rights in paragraphs (a) and (b) which may subsist in Australia or elsewhereinvoice addressthe address for invoices specified in Item REF _Ref507270771 \r \h \* MERGEFORMAT 19 of REF _Ref506550096 \r \h \* MERGEFORMAT Schedule B, or any substitute address notified by buyer to seller at any timeissuea disagreement between the parties about the correct interpretation of this contract; and/or a failure by a party to comply with its obligations under this contract; and/ora breach of a warranty given by a party under this contractlawany applicable statute, regulation, by-law, ordinance or subordinate legislation, any other instrument of a legislative character and court rules 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 timelegal services directions the Legal Services Directions made under section 55ZF of the Judiciary Act 1903 (Cth)licencea world-wide, royalty free, non-exclusive licence including the right to sub-license licence metricsthe licence metrics that apply to software (e.g. number, named or concurrent users etc), as specified in REF _Ref518634398 \n \h Section 1 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Cmaterialany software (including software), firmware, data, documented methodology or process, tools, object libraries, documentation or other material in whatever form, including without limitation any reports, specifications, business rules or requirements, user manuals, user guides, operations manuals, training materials and instructions, and the subject matter of any intellectual property rightsmaximum charges payablethe GST inclusive amount specified as the maximum charges payable in REF _Ref506551499 \w \h \* MERGEFORMAT Schedule Fmoral rightsa right of attribution of authorship;a right not to have authorship falsely attributed; ora right of integrity of authorshipnew material any material created by seller that is delivered or required to be delivered to buyer for the purpose of or as a result of performing its obligations under this contractnew releasesoftware produced primarily to extend, alter or improve the software by providing additional functionality or performance enhancement (whether or not defects in the software are also corrected) while still retaining its original designated purpose notice a communication that meets the requirements of clause REF _Ref505937195 \r \h \* MERGEFORMAT 3.2.1notifyto send a noticeopen source softwaresoftware available under a licence which meets the criteria of the Open Source Definition published by the Open Source Initiative at , and includes the forms of creative commons licences published as the Creative Commons Legal Code for Australia at periodthe period (if any) specified in Item REF _Ref506758479 \r \h \* MERGEFORMAT 6 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B partybuyer or sellerpayment milestonea payment milestone specified in REF _Ref506551499 \r \h \* MERGEFORMAT Schedule F that is payable when the applicable payment milestone has been achievedperpetualin relation to software, means the licence extends beyond the termination or expiry of this contract and is not dependent or conditional on buyer contracting with seller after the expiry or termination of this contract for further provision of the software or software support or payment by buyer of any additional fees.personal informationthe same meaning as in the Privacy Act 1988 (Cth)PGPA Public Governance, Performance and Accountability Act 2013 (Cth)producta software product to be sold by seller to buyer under this contract, as specified REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Csellerthe person named as seller on the first page of this contractseller group companya “related body corporate” of seller (within the meaning of that term in the Corporations Act 2001 (Cth)) seller’s confidential informationinformation described in Item REF _Ref507419845 \r \h \* MERGEFORMAT 22 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B, any information provided by buyer to seller under this contract in relation to seller’s security systems and processes but not the total value of this contract or any other information relating to this contract to which an accountability obligation appliesseller’s personnela subcontractor and officers, employees or individual contractors of seller, a seller group company or subcontractors who:are involved in the delivery of services under this contract and/or the performance of seller’s obligations under this contract; and/orhave access to buyer’s premises, buyer’s systems or buyer’s data in relation to the performance of this contractseller’s premisesany premises of seller (including the premises of seller’s personnel) where buyer’s data is stored or where components of seller’s systems are locatedseller’s recordsany records that seller is required to maintain under this contractseller’s representativethe person named as seller’s representative in Item REF _Ref506967955 \r \h \* MERGEFORMAT 7 of REF _Ref505935497 \r \h \* MERGEFORMAT Schedule B, as updated in accordance with clause REF _Ref505937209 \r \h \* MERGEFORMAT 3.1.2seller’s systemsany system of seller (including the systems of seller’s personnel) that accesses, transmits or stores buyer’s dataservicea service to be sold by seller to buyer under this contract, as specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Cservice levelsthe standards of service which seller must achieve in providing the deliverables to buyer as set out in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Cshared servicesthe provision of products and/or services by an agency to another agency (whether or not a payment is made in relation to the provision of the products and/or services)softwaresoftware (including relevant material to support that software and includes commercial-off-the-shelf (COTS) software) that is owned by seller or a third party (including open source software) and is licensed from seller to buyer on the terms in clause REF _Ref518732466 \r \h 5.1 and REF _Ref506550068 \w \h \* MERGEFORMAT Schedule C, and includes any updates or new releases adopted by buyersoftware licence periodthe period of the licence for software as specified in REF _Ref506550068 \w \h \* MERGEFORMAT Schedule Csoftware support periodthe period for provision of software support services, as specified in REF _Ref511951133 \r \h Section 3 of REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Csoftware support servicesthe software support services specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Cspecificationsthe technical, functional, non-functional and other operational or performance characteristics required of a deliverable, as specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Cstart datethe date for commencement of a particular service, as specified in REF _Ref506550068 \w \h \* MERGEFORMAT Schedule Cstatute lawany applicable statute, regulation, by-law, ordinance or subordinate legislation, any other instrument of a legislative character and court rules in force from time to time in Australia, whether made by a State, Territory, the Commonwealth, or a local governmentsubcontracta contract or arrangement between seller and a third party for the delivery of products or services to buyer under this contract, but does not include a contract or arrangement between seller and a seller group company or between seller and an individual contractorsubcontractora party to a subcontract, other than sellersub-licensethe right to allow any person to exercise any of the rights including do any of the activities authorised under the licence and, in relation to buyer, includes the right to engage any person including outsource suppliers to do any such activities on behalf of buyer without consent and without any financial consequences for any persontaxesall taxes, duties and government chargestermdefined in clause REF _Ref506999416 \r \h \* MERGEFORMAT 2.1.1; subject to modification in accordance with clause REF _Ref506999431 \r \h \* MERGEFORMAT 2.1.2third partyany person other than buyer or sellertraining servicesthe training services specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule Cupdatesoftware which has been produced primarily to overcome defects in, or to improve the operation of, the software without significantly altering the software’s specifications, whether or not the software has also been extended, altered or improved by providing additional functionality or performance enhancement use [software] in relation to software and associated documentation, includes, buyer:integrating, loading, installing, compiling, configuring or running the software;making backups of the software; using, copying, amending or adapting any associated documentation relating to the software[existing material] in relation to existing material (other than software or buyer’s existing material) includes buyer using, reproducing, adapting, modifying, communicating that materialwarranty periodin relation to a deliverable, the warranty period for that deliverable specified in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule CWGEAWorkplace Gender Equality Act 2012 (Cth)– Contract DetailsItemNumberRelated clauseSubjectDescriptionPurpose, interpretation and technical contract issues REF _Ref506967368 \r \h \* MERGEFORMAT 1.4agency access[if other agencies are not able to access this contract insert “no agency access, clause 1.4 does not apply” otherwise insert “clause 1.4 applies”] REF _Ref506748971 \r \h \* MERGEFORMAT 1.6seller as trustee[“not applicable” or “seller is entering this contract in its capacity as trustee of the [insert name] trust”] REF _Ref506748958 \r \h \* MERGEFORMAT 1.7.2seller to purchase products and services on behalf of buyer[“not applicable” or “seller is authorised to purchase the following products and services on behalf of buyer on the following conditions [insert detailed conditions]”]Contract term REF _Ref507250036 \r \h \* MERGEFORMAT 2.1.1commencement date[insert commencement date or “the date that this contract is signed by both parties”] REF _Ref507250036 \r \h \* MERGEFORMAT 2.1.1end date[insert end date, or if the contract has a particular term (for example, 3 years) insert that time period] REF _Ref507250076 \r \h \* MERGEFORMAT 2.1.3option period[insert “not applicable” or the total option period]Contract governance REF _Ref506748943 \r \h \* MERGEFORMAT 3.2.1contract representativesbuyer’s representativename:position:address:email:cc email:seller’s representativename: position:address:email:cc email: REF _Ref506749902 \r \h \* MERGEFORMAT 3.5.3prohibition on seller referencing contract[“not applicable” or “clause 3.4.3 does not apply – buyer may not publish contract details”] REF _Ref506189804 \r \h \* MERGEFORMAT 3.9.8mediation[“not applicable” or specify what disputes must be referred to mediation if required by a party and the full process for the mediation] REF _Ref506189828 \r \h \* MERGEFORMAT 3.9.9expert determination[“not applicable” or specify what disputes must be referred for expert determination if required by a party and the full process for the expert determination]Personnel REF _Ref507238549 \r \h \* MERGEFORMAT 4.2.1approved subcontractorsNameABNRole REF _Ref506751380 \r \h \* MERGEFORMAT 4.4.1security clearances and other clearances[“not applicable” or specify requirements for security clearances and any other clearance processes that must be completed by seller’s personnel such as Employment Suitability Clearance]Acceptance REF _Ref506913570 \r \h \* MERGEFORMAT 8.2acceptance test plan[“not applicable” or “plan to be provided to buyer for approval no later than [insert] business days after the commencement date”]Intellectual property and moral rights REF _Ref506756409 \r \h \* MERGEFORMAT 9.3.4IP ownership model for new material Model A (buyer ownership) ?Model B (seller ownership) ?Buyer assistance to seller REF _Ref506756687 \r \h \* MERGEFORMAT 10.1.1Access to buyer material [insert “not applicable” or insert details of buyer material to be provided to seller] REF _Ref506756890 \r \h \* MERGEFORMAT 10.2.1Use of buyer facilities [insert “not applicable” or insert details of buyer facilities that can be used by seller] REF _Ref507407808 \r \h \* MERGEFORMAT 10.3.1Access to buyer facilities [insert “not applicable” or insert details of buyer facilities that seller can access] REF _Ref506756978 \r \h \* MERGEFORMAT 10.4buyer site preparation[insert “not applicable” or details of the site specifications that buyer must meet in preparing the site] Charges and payment REF _Ref507408257 \r \h \* MERGEFORMAT 11.2.1invoice addressname:position:address:email:cc email:Information management REF _Ref506757159 \r \h \* MERGEFORMAT 12.1.2privacy policies and guidelines[insert “not applicable” or specify any privacy policies and/or guidelines that seller must comply with] REF _Ref507166071 \r \h \* MERGEFORMAT 12.2 and Glossarybuyer’s confidential information[insert “In accordance with definition of buyer’s confidential information and the following: [insert any specific information to come within the definition of buyer’s confidential information] OR insert “in accordance with definition of buyer’s confidential information”] REF _Ref507166071 \r \h \* MERGEFORMAT 12.2 and Glossaryseller’s confidential information[insert “In accordance with definition of seller’s confidential information and the following: [insert any specific information to come within the definition of seller’s confidential information] OR insert “in accordance with definition of seller’s confidential information”] REF _Ref507241632 \r \h \* MERGEFORMAT 12.3.1requirements for holding buyer’s data[insert any additional requirements on seller for holding buyer’s data, or insert “no additional requirements’] REF _Ref507242691 \r \h \* MERGEFORMAT 12.3.8deletion of buyer’s data[insert “not applicable” unless seller is permitted to retain buyer’s data after the expiry or termination of this contract – in which case specify what is permitted and any conditions] REF _Ref506757387 \r \h \* MERGEFORMAT 12.5accessing buyer’s confidential information outside Australia[insert “not applicable” unless seller is permitted to transfer, store or access buyer’s confidential information outside Australia – in which case specify what is permitted and any conditions]Security REF _Ref506757511 \r \h \* MERGEFORMAT 13.1.1 and REF _Ref506757524 \r \h \* MERGEFORMAT 13.1.2buyer’s security policies[insert “not applicable” or specify any security policies that seller must comply with]Liability REF _Ref506478307 \r \h \* MERGEFORMAT 14.2.1 and REF _Ref506757658 \r \h \* MERGEFORMAT 16.1.3limitation of liability[insert “not applicable” or if liability of the parties is limited, specify the amount of the limitation] REF _Ref506490020 \r \h 14.4.1. REF _Ref507408541 \w \h \* MERGEFORMAT b) public liability insurance[specify value] REF _Ref506490020 \r \h 14.4.1. REF _Ref507408542 \w \h \* MERGEFORMAT c)professional indemnity insurance[specify if required and, if so, the value] REF _Ref506490020 \r \h 14.4.1. REF _Ref507408543 \w \h \* MERGEFORMAT d)product liability insurance[specify if required and, if so, the value] REF _Ref506490020 \r \h 14.4.1. REF _Ref507408544 \w \h \* MERGEFORMAT e)other insurance[specify if any other insurance required and, if so, type and the value] REF _Ref506991606 \r \h \* MERGEFORMAT 14.4.3period of insurance[specify a period between 2 years and years after the expiry or termination of this contract or state: ‘in accordance with clause REF _Ref506991606 \r \h \* MERGEFORMAT 14.4.3] – RequirementsProductsSoftware supply (clause REF _Ref518732420 \r \h 5.1)description of software – [list all software being supplied including name, version number, owner of software, whether open source etc)]software specifications – [insert the specifications for the software that seller must meet or state: ‘in accordance with Attachment 1’]documentation – [insert details of the documentation to be provided with the software]software licence period – [insert licence period or state ‘perpetual’]licence terms – [insert ‘as per clause REF _Ref518732439 \r \h 5.1’ (which is the default) or specify alternative terms]licence metrics – [insert licence metrics for the software]processor restrictions – [insert details of any processor to which the software is restricted or state ‘no restrictions’]assignment of licence to other agency – [see clause REF _Ref507422148 \r \h 5.1.2 and insert yes/no]warranty period – [insert warranty period for the software]delivery location – [insert details of the delivery location] delivery time – [insert the delivery time or state ‘in accordance with Attachment 2’]acceptance criteria – [insert details of acceptance criteria or state: ‘in accordance with acceptance test plan’]acceptance testing – [insert details of acceptance testing or state ‘in accordance with acceptance test plan’]buyer acceptance period – [insert alternative period to that in clause REF _Ref506903644 \r \h \* MERGEFORMAT 8.1.4 or state: “as per clause REF _Ref506903644 \r \h \* MERGEFORMAT 8.1.4”]due date(s) – [insert due date(s) for seller achieving acceptance of the deliverable(s) or state ‘in accordance with Attachment 2’]escrow – [As per clause REF _Ref507322277 \r \h \* MERGEFORMAT 7.9, insert details of any escrow agreement required including escrow agent details or insert ‘not applicable’.ServicesDelivery and installation services (clause REF _Ref518756726 \r \h 6.1)start date – [insert start date for services] specifications – [insert the details of the installation services including any documentary deliverables]service levels – [insert details of any service levels]warranty period – [insert warranty period for the services]buyer assistance – [insert details of any buyer assistance that will be provided]delivery location – [insert details of the delivery location]delivery time – [specify the delivery time or state ‘in accordance with Attachment 2’] acceptance criteria – [insert details of acceptance criteria]acceptance testing – [insert details of acceptance testing]buyer acceptance period – [insert alternative period to that in clause REF _Ref506903644 \r \h \* MERGEFORMAT 8.1.4 or state: “as per clause REF _Ref506903644 \r \h \* MERGEFORMAT 8.1.4”]due date(s) – [insert due date(s) for seller achieving acceptance of the deliverables or state ‘in accordance with Attachment 2’]Software support services (clause REF _Ref506561501 \r \h \* MERGEFORMAT 6.2)start date – [insert start date for services] specifications – [insert details of software support services including requirements for updates and new releases and help desk services] updates and new releases – [insert terms for the provision of updates and new releases] [As per clause REF _Ref506563559 \r \h 6.2.2 REF _Ref506902011 \w \h \* MERGEFORMAT a)(ii), if maximum support period for non-current software is different to 18 months, specify that period here]service levels – [insert details of service levels including response times, defect resolution times etc]Training services (clause REF _Ref506296954 \r \h \* MERGEFORMAT 6.3)start date – [insert start date for services] specifications – [insert the details of services including any documentary deliverables]service levels – [insert details of any service levels]warranty period – [insert warranty period for the services]buyer assistance – [insert details of any buyer assistance that will be provided]delivery location – [insert details of the delivery location]delivery time – [specify the delivery time or state ‘in accordance with Attachment 2’] acceptance criteria – [insert details of acceptance criteria]acceptance testing – [insert details of acceptance testing]buyer acceptance period – [insert alternative period to that in clause REF _Ref506903644 \r \h \* MERGEFORMAT 8.1.4 or state: “as per clause REF _Ref506903644 \r \h \* MERGEFORMAT 8.1.4”]due date(s) – [insert due date(s) for seller achieving acceptance of the deliverables or state ‘in accordance with Attachment 2’]Attachment 1 (Specifications)[if there are detailed specifications, include details here]Attachment 2 (Schedule)[if there are a significant number of deliverables and delivery milestones, include details here. Below is an example of tables that could be used]Deliverablesdeliverable reference #deliverable description delivery datedue date for acceptanceDelivery Milestonesdelivery milestone reference # delivery milestone description conditions for achieving the delivery milestonedelivery milestone due date [generally the conditions for achieving a delivery milestone would be achieving acceptance of one or more deliverables e.g. acceptance of deliverables X, Y and Z] – Form of Acceptance Test PlanPart A – GeneralScope of plan[describe what deliverables or delivery milestones are covered by this plan]Testing methodologyseller testsTest environment – seller testsTest data for seller testsbuyer’s right to observe and receive test reports for seller tests[if buyer has the right to observe and review test reports for seller’s tests, specify those rights here]seller’s obligation to give buyer notice of seller tests[insert period of notice that seller has to provide to buyer before seller conducts acceptance testing]Timetable for seller testsbuyer testsTest environment – buyer testsTest data for buyer testsTimetable for buyer testsResources required for buyer tests[specify if a particular minimum number of buyer resources or particular skillsets are required for buyer tests]Minimum time required in schedule for buyer tests[if buyer requires a minimum period for testing, specify that period here]Periods when buyer testing cannot be undertakendocumentation requirements for testing and logging requirements for defectsPart B – Deliverables/Delivery Milestones[complete a table in the form below for each deliverable or delivery milestone]deliverable/delivery milestone name and identification numberacceptance criteriaspecifications Prerequisites for seller testing[this could include the submission of documentation by buyer to seller]Prerequisites for buyer user acceptance testing[this would normally include the successful completion of buyer testing, the resolution of defects and the provision of seller’s test reports to buyer]Prerequisites for acceptance into productionPost production validation testing[specify whether this is required and seller’s obligations if this testing identifies defects] – Form of Acceptance CertificateAcceptance CertificateThis is an acceptance certificate for the deliverable(s)/delivery milestone(s) identified below. The certificate is issued under the contract between [name of buyer] ABN [ABN of buyer] (buyer) and [name of seller] ABN [ABN of seller] (seller) dated [date of contract] reference [insert buyer’s reference number for contract] (contract).In this certificate, terms in bold italic have the same meaning as in the contract, unless otherwise defined in this certificate.Deliverable/delivery milestonedeliverable/delivery milestonedescriptionreference numberseller certificationcertificationsigned on behalf of buyerdateseller certifies that, having conducted appropriate testing, the deliverable(s)/delivery milestone(s) identified above meet the requirements of the contract [signature, name and position]buyer acceptanceacceptancesigned on behalf of sellerdatebuyer accepts the deliverable(s)/delivery milestone(s) identified above [signature, name and position]– Charges [Insert details of all relevant charges, costs or fees for the performance of the products and/or services and when each item is payable. All charges specified in this schedule are exclusive of GST unless otherwise specified]Maximum Charges PayableClause references REF _Ref507268935 \r \h 11.6.1, REF _Ref506364615 \r \h 16.4.3 – The maximum value of this contract is $[insert] (inclusive of GST)Charges for productsApplicable products [specify the products to which the charges apply i.e. software]ChargesProduct descriptionunit charge (GST exclusive)number of unitse.g. software descriptionTotal charges[insert $ ex GST]Charges for servicesFixed service charges[specify the services to which the charges apply e.g. software support services]service descriptioncharge (GST exclusive)E.g. Software Support Services Year 1E.g. installation services Total chargesTime based chargesApplicable services [specify the services subject to time based charges]Time based pricing[insert either “not applicable” or “seller may invoice on a time basis up to a total maximum amount of [insert] ex GST]RatesThe following rates apply for seller’s personnel:Level/positionDaily rate (GST exclusive)Hourly rate (ex GST)Expenses[set out any permitted expenses or insert ‘seller is not entitled to be reimbursed for expenses’]Invoicing frequencyseller may invoice [insert frequency] Variation to pricing [if charges are subject to an adjustment mechanism, for example, the consumer price index, set out the mechanism or insert “not applicable”]Charges for payment milestonesApplicable products and/or services [specify the products and/or services that will be charged using payment milestones]payment milestone reference numberpayment milestone descriptionconditions for achieving the payment milestonepayment milestone amount (ex GST)[e.g. #1][e.g. achievement of delivery milestone 1]Total charges[insert $ ex GST] charges variation formulacharge variation formula (clause REF _Ref507482556 \w \h \* MERGEFORMAT 16.3.2) [if there is pricing mechanism for contract variations insert here or state “not applicable”]service rebatesApplicable services[insert details of the service rebates payable for failure to meet the service levels in REF _Ref506550068 \r \h \* MERGEFORMAT Schedule C, including the method of calculating the service rebates and any caps on the service rebates] – Form of Change OrderThis is a change order to the contract between [name of buyer] ABN [ABN of buyer] and [name of seller] ABN [ABN of seller] dated [date of contract] reference [insert buyer’s reference number for contract] (contract).In this change order, terms in bold italic have the same meaning as in the contract, unless otherwise defined in this change order.Part A [to be completed by party proposing change]Change order number[insert reference number]Date proposedDescription of proposed changeReason for proposed changeEffect on delivery times, risk, implementation, documentation and users of the systemEffect on chargesChanges to buyer dependenciesEffect on service levelsPart BContract clauses affected Marked up clauses showing proposed changesDate of effect of changesAgreed by the partiesSigned on behalf of buyer(Signature)(Name and position)Date:Signed on behalf of seller(Signature)(Name and position)Date: – Form of Agency OrderTo: [name of seller’s representative], [name of seller] ABN [ABN of seller] (seller)This is an agency order under clause 1.4 of the contract between seller and [name of buyer] ABN [ABN of buyer] dated [date of contract] reference number [buyer’s reference number] (principal contract).[name of ordering agency] ABN [ABN of ordering agency] (ordering agency) orders the following products and services from seller, on the terms of the principal contract unless otherwise agreed by seller and ordering agency:[specify products and/or services ordered].seller and ordering agency must enter into a separate contract for the provision of the products and/or services that have been ordered.All communications regarding this order should be sent to [insert name and contact details for ordering agency’s representative].Executed on behalf of the Commonwealthof Australia, as represented by [insert name of ordering agency] ABN [insert ABN of ordering agency]Signature:Name and position:Date: – Form of Deed of ConfidentialityTHIS DEED POLL is made on [date]for the benefit of the Commonwealth of Australia represented by [name of buyer] ABN [buyer’s ABN], of [buyer’s address] (buyer)by [name of person signing deed] of [address of person signing deed] (confidant)as an employee of[name of seller] ABN [seller’s ABN] (seller)Backgroundseller is providing products and/or services to buyer under a contract dated [date of contract] relating to [subject of contract] reference number [add buyer’s reference number for contract] (principal contract).seller has confidentiality obligations under the principal contract in relation to buyer’s confidential information.As an employee of seller involved in the performance of the principal contract, confidant may become aware of buyer’s confidential information.To ensure buyer’s confidential information remains confidential, confidant has agreed to sign this deed poll for the benefit of buyer. Operative partDefinitions In this deed poll, terms in bold italics not otherwise defined have the following meanings:buyer’s confidential information means information:of buyer that is personal information, security classified information (including with delimiting markers), information protected by statutory confidentiality provisions, information marked “confidential” (or marked in some other way that indicates it is confidential) and/or information that relates to buyer’s customers, commercial dealings, technology systems, finances, compliance programs and/or security systems and/or procedures; andwithin the definition of the term “buyer confidential information” in the principal contract, that is or was held or accessed by confidant, but does not include information:in the public domain (otherwise than as a breach of this deed poll or the principal contract); orindependently held or developed by confidant without reference or reliance on any information of buyer.personal information has the same meaning as in the Privacy Act 1988 (Cth).Confidant obligationsUnless otherwise required by law, confidant must:keep buyer’s confidential information confidential;not use or disclose buyer’s confidential information for any purpose other than the performance of the principal contract;not publicly disclose buyer’s confidential information except with the express written consent of buyer; andif requested by buyer, immediately return all buyer’s confidential information in confidant’s possession to buyer or destroy or delete such buyer’s confidential information (and provide a statutory declaration to buyer that this has been done).confidant must keep buyer’s confidential information secure.confidant must notify buyer in writing immediately if he or she is required by law to disclose any of buyer’s confidential information or if buyer’s confidential information is lost, stolen or accessed by an unauthorised person.confidant acknowledges that damages may not be an adequate remedy for a breach of this deed poll and that buyer may be entitled to injunctive relief.Conflict of interestconfidant warrants that he or she has no conflict of interest in relation to the performance of the principal contract, other than as notified in writing to erning lawThis deed poll is governed by the law of the Australian Capital Territory and confidant agrees to submit to the non-exclusive jurisdiction of the Courts of the Australian Capital Territory in respect of all matters relating to this deed poll.Executed as a Deed Poll Signed, Sealed and Delivered by [name of confidant] in the presence of:Signature of witnessName of witnessSignature of confidant ................
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