CCTV Contract Final

8/10/2019 CCTV Contract Final

1/54

DATED THE DAY OF 2009

DEED

FOR THE SUPPLY, DELIVERY, INSTALLATION & MAINTENANCE

OF SECURITY AND SURVEILLANCE CCTV SYSTEMS

between

MINISTER FOR POLICE

and

TYCO AUSTRALIA PTY LTD

ACN 008 399 004

CROWN SOLICITOR

Level 9, 45 Piri e Street, Adelaid e SA 5000


2/54


3/54

Page i of ii

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

TABLE OF CONTENTS

1. DEFINITIONS............................................................................................................... 1

2. INTERPRETATION ...................................................................................................... 4

3. ACROSS AGENCY DEED...........................................................................................5

4. CONDITION..................................................................................................................6

5. CONTRACT ADMINISTRATION .................................................................................6

6. TERM............................................................................................................................6

7. APPOINTMENT TO THE PANEL ................................................................................ 6

8. FORMATION OF CUSTOMER CONTRACT ...............................................................7

9. SUPPLY OF EQUIPMENT AND SERVICES............................................................... 910. PRODUCT SPECIFICATIONS.....................................................................................9

11. CHANGES IN TECHNOLOGY.....................................................................................9

12. DOCUMENTATION....................................................................................................10

13. SITE PREPARATION.................................................................................................10

14. PRE-DELIVERY TESTING.........................................................................................11

15. DELIVERY..................................................................................................................12

16. TESTING & ACCEPTANCE.......................................................................................12

17. COMMISSIONING SERVICES...................................................................................1318. WARRANTIES ...........................................................................................................13

19. OWNERSHIP & RISK IN THE EQUIPMENT .............................................................15

20. TRAINING .................................................................................................................. 15

21. SUPPORT SERVICES ...............................................................................................15

22. SECURITY..................................................................................................................16

23. PRICE.........................................................................................................................17

24. GOODS & SERVICES TAX ....................................................................................... 17

25. PAYMENT ARRANGEMENTS ..................................................................................17

26. DELAYS ..................................................................................................................... 18

27. EXTENSION OF TIME ............................................................................................... 18

28. INTELLECTUAL PROPERTY RIGHTS .....................................................................19

29. RECORDS..................................................................................................................19

30. REPORTS .................................................................................................................. 20

31. INSURANCE .............................................................................................................. 20

32. PROTECTION OF CONFIDENTIAL INFORMATION ................................................21

33. BANK GUARANTEE..................................................................................................21

34. INDEMNITY................................................................................................................ 22


4/54

Page ii of ii

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

35. REMEDIES.................................................................................................................22

36. TERMINATION...........................................................................................................22

37. COMPLIANCE WITH LAWS & POLICIES ................................................................23

38. RESOLUTION OF DISPUTES ................................................................................... 23

39. PUBLICITY.................................................................................................................24

40. CONFLICT OF INTEREST.........................................................................................24

41. COUNTERPARTS......................................................................................................24

42. ENTIRE DEED............................................................................................................24

43. VARIATION OF DEED............................................................................................... 25

44. WAIVER .....................................................................................................................25

45. GOVERNING LAW.....................................................................................................25

46. SEVERANCE ............................................................................................................. 2547. READING DOWN.......................................................................................................25

48. COSTS ....................................................................................................................... 25

49. NOTICES....................................................................................................................26

50. NO ASSIGNMENT ..................................................................................................... 26

51. RELATIONSHIP ......................................................................................................... 26

52. TIME OF THE ESSENCE...........................................................................................27

53. FORCE MAJEURE.....................................................................................................27

54. CONTRACT DISCLOSURE .......................................................................................2755. AUDITOR-GENERAL.................................................................................................27

56. STAMP & CUSTOM DUTIES.....................................................................................27

57. INSKILL......................................................................................................................28

Schedule 1 General Particulars ...........................................................................................1

Schedule 2 Price and Payment .............................................................................................1

Schedule 3 Specif ications .....................................................................................................1

Schedule 4 Suppor t Services ................................................................................................1

At tachment 1


5/54

Page 1 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

DEED dated:

PARTIES;

MINISTER FOR POLICEa body corporate pursuant to theAdministrative Arrangements Act 1994for and on behalf of the Crown in right of the State of South Australia of 9th Floor Terrace Towers,

178 North Terrace, Adelaide SA 5001(Minister)

AND

TYCO AUSTRALIA PTY LTD (ACN 008 399 004) whose registered office is situated at 38South Street Rydalmere, New South Wales 2116 (Supplier)

AGREED TERMS:

1. DEFINITIONS

In this Deed, unless a contrary intention is evident:

1.1 Acceptance Cri ter ia means the test results specified in Attachment 1 whichare to be achieved in the course of the Acceptance Tests;

1.2 Acceptance Date means the date on which the Equipment is accepted bythe Minister in accordance with clause 16;

1.3 Acceptance Tests means the tests to be conducted in accordance withclause 16;

1.4 Deed means this deed of Deed and includes all Schedules and Attachmentsattached to it;

1.5 Bank Guarantee means the bank guarantee described in clause 33;

1.6 Business Day means any day that is not a Saturday or Sunday or a publicholiday in South Australia;

1.7 CCTV Project Manager means the person notified as such in writing to theSupplier by the Minister or a Customer;

1.8 Commencement Date means the date so specified in Schedule 1;1.9 Completion Date means the date so specified in Schedule 1;

1.10 Crown means the Crown in right of the State of South Australia;

1.11 Customer means any of the South Australian Government departments,authorities and other bodies listed below:

1.11.1 Attorney-Generals Department;

1.11.2 Department for Correctional Services;

1.11.3 Courts Administration Authority;

1.11.4 South Australia Police (SAPOL); and


6/54

Page 2 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

1.11.5 any other South Australian Government department, authority or otherbody which the Minister may notify the Supplier from time to time inwriting;

1.12 Customer Contract means a contract between the Supplier and a Customerfor the supply of Equipment and Services as contemplated by clause 8;

1.13 Defect means:

1.13.1 any defect or imperfection in any Equipment; or

1.13.2 any non-compliance of Equipment with the requirements of theSpecifications, arising at any time until the expiration of the WarrantyPeriod in relation to Equipment;

1.14 Delivery means the delivery of the Equipment, including its unloading, at theDelivery Site;

1.15 Delivery Date means the date so specified in a Purchase Order;

1.16 Delivery Site means the place or places to which the Equipment is to bedelivered, installed and maintained, as specified in a Purchase Order;

1.17 Delivery Site Specifications means the specifications for the preparation ofthe Delivery Site for the purposes of delivery and installation of the Equipment,as set out in a Purchase Order;

1.18 Document means any embodiment of any text or image however recorded;

1.19 Documentation means the operating manuals, training materials andassociated documentation specified in the Specifications;

1.20 Equipment means the closed circuit television equipment and associateditems which are supplied and installed by the Supplier pursuant to this Deed

as described in the Specifications;1.21 Equipment Warranty means the manufacturers warranty for the Equipment

assigned by the Supplier for the benefit of the Minister or Customer pursuantto clause 18.14;

1.22 Event of Default occurs when the Supplier:

1.22.1 undertakes or suffers an Insolvency Event;

1.22.2 assigns, or suffers any assignment of, any of its rights or obligationsunder this Deed, otherwise than in accordance with this Deed;

1.22.3 fails to comply with any notice given by the Minister pursuant to thisDeed or a Customer Contract;

1.22.4 changes or suffers any change in the effective control of the ownershipof the Supplier;

1.22.5 fails to comply with all Laws;

1.22.6 fails to perform its obligations under this Deed or a Customer Contract;or

1.22.7 becomes the subject of a takeover;

1.23 Force Majeure means an event or circumstance which prevents a party fromcomplying with any of its obligations under this Deed and which that party:

1.23.1 did not cause;

1.23.2 cannot control or influence; and


7/54

Page 3 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

1.23.3 cannot prevent or avoid through prudent management processes,policies and precautions, including the use of alternative resources, theprocuring of services from another source, and work around plans;

Force Majeureincludes:

1.23.4 fire, flood, earthquake, elements of nature, acts of God, maliciousdamage, explosion, sabotage, riot, civil disorder, rebellion or revolutionin Australia; and

1.23.5 any change of law which makes compliance with the affected partysobligations under this Deed illegal;

1.24 GST means the tax imposed by the GST Law;

1.25 GST Law has the meaning attributed in theA New Tax System (Goods andServices Tax) Act 1999(Cth) (ANTS GST Act);

1.26 GST Rate means, at any particular time, the rate (expressed as a fraction ofthe Value of a supply) at which GST is payable by the Supplier on a Taxable

Supply;

1.27 Helpdesk Services means defect correction information, a work around orother remedial services or advice required to restore the Equipment to fullfunctionality as specified in Schedule 4;

1.28 Insolvency Event means:

1.28.1 an administrator is appointed to the Supplier or action is taken to makethat appointment;

1.28.2 the Supplier resolves to be wound up;

1.28.3 an application is made to a court for an order or an order is made that

the Supplier be wound up (whether on grounds of insolvency orotherwise);

1.28.4 the Supplier ceases to carry on business;

1.28.5 a receiver or a receiver and manager of property of the Supplier isappointed whether by a court or otherwise;

1.28.6 an application is made to a court for an order appointing a liquidator orprovisional liquidator in respect of the Supplier or one of them isappointed, whether or not under an order;

1.28.7 the Supplier enters into a compromise or arrangement with its creditorsor a class of them; and/or

1.28.8 the Supplier is or states that it is unable to pay its debts as and whenthey fall due;

1.29 Installation Date means the date so specified in a Purchase Order, or suchextended date as may be granted by the Minister, by which the Supplier is toprovide the Equipment Ready For Use;

1.30 Intellectual Property Rights means any patent, copyright, trademark, tradename, design, trade secret, know how, semi conductor or circuit layout right orother form of intellectual property right whether arising before or after theexecution of this Deed and the right to registration or renewal of those rights;

1.31 Laws means all Acts of Parliament of the Commonwealth of Australia and of

the State of South Australia and the requirements of all ordinances,regulations, by-laws, orders, and proclamations;


8/54

Page 4 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

1.32 Ministers Representative means the person so identified in Schedule 1;

1.33 New Release means a new version of the Software that includes newfeatures not required merely to correct defects;

1.34 Personnel means any employees, subcontractors, agents and any other

person engaged or employed by the Supplier for the purposes of this Deedand includes the Suppliers Representative;

1.35 Price means the price for the Equipment (including delivery, installation,training and Support Services) specified in Schedule 2;

1.36 Project Package means a description of the CCTV upgrade work requiredto install Equipment Ready For Use at a Delivery Site and will include thedetails specified in the Specifications;

1.37 Purchase Order means an order required under clause 8;

1.38 Ready For Use means the Equipment fully installed, tested and accepted inaccordance with this Deed;

1.39 Request means a request for Equipment and/or Services by the Customeras described in clause 8;

1.40 Services means the installation and maintenance of the Equipment at aDelivery Site as required in accordance with this Deed and more fullydescribed in the Specifications;

1.41 Software means the software to use the Equipment described in Schedule 3and includes any Software Updates and New Release;

1.42 Software Update means anything that has been produced or may be usedto extend, alter or improve the Equipment (including software which has beenproduced primarily to overcome defects in or improve the operation of the

Software) whether or not the Software has also been extended, altered orimproved by providing additional functionality or performance enhancement;

1.43 Specifications means the specifications describing the intended functionsand performance of the Equipment as set out in Schedule 3;

1.44 Suppliers Representative means the person so identified in Schedule 1;

1.45 Support Services means the training, warranty and manufacturer servicesspecified in Schedule 4;

1.46 Tax Invoice has the meaning attributed in the GST Law;

1.47 Taxable Supply has the meaning attributed in the GST Law;

1.48 Term of this Deed means the term as defined in clause 6;

1.49 Value of a Taxable Supply has the meaning attributed in the GST Law;

1.50 Warranty Period means the period of time pursuant to clause 18 asspecified in Schedule 1, during which the warranty provisions of this Deed willapply; and

1.51 Warranty Response Time means the period of time pursuant to clause 18and as specified in Attachment 1, within which the Supplier must inspect (andif the context so dictates, replace or repair) the Equipment.

2. INTERPRETATION2.1 In this Deed, unless a contrary intention is evident:


9/54

Page 5 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

2.2 a reference to this Deed is a reference to this Deed as amended, varied,novated or substituted from time to time;

2.3 a reference to any legislation or to any provision of any legislation includes:

2.3.1 all legislation, regulations, proclamations, ordinances, by-laws and

instruments issued under that legislation or provision; and2.3.2 any modification, consolidation, amendment, re-enactment or

substitution of that legislation or provision;

2.4 a word importing:

2.4.1 the singular includes the plural;

2.4.2 the plural includes the singular; and

2.4.3 a gender includes every other gender;

2.5 words denoting individuals include corporations, unincorporated associations,partnerships, trusts and joint ventures;

2.6 a reference to a party includes that partys administrators, successors andpermitted assigns;

2.7 if any act pursuant to this Deed would otherwise be required to be done on aday which is not a Business Day then that act may be done on the nextBusiness Day;

2.8 where a word or phrase is given a defined meaning, any other part of speechor grammatical form in respect of that word or phrase has a correspondingmeaning;

2.9 a reference to two or more persons is a reference to those persons jointly andseverally;

2.10 a reference to a clause or Schedule is a reference to a clause of, or aSchedule to, this Deed;

2.11 a reference to a clause number is a reference to all of its sub-clauses;

2.12 a reference to dollars is to Australian dollars;

2.13 where general words are associated with specific words which define a class,the general words are not limited by reference to that class;

2.14 the clause headings are for convenient reference only and they do not formpart of this Deed; and

2.15 in resolving inconsistencies in this Deed:

2.15.1 this Deed (excluding the Schedules and Attachments);

2.15.2 the Schedules, and

2.15.3 the Attachments,

will have priority in that order.

3. ACROSS AGENCY DEED

3.1 The Minister enters this Deed for and on behalf of the South AustralianGovernment and for the benefit of each Customer.

3.2 The parties agree that:


10/54

Page 6 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

3.2.1 the Minister may enforce this Deed or any Customer Contract onbehalf of any Customer; and

3.2.2 a Customer may take the benefit of, and with the consent of theMinister, seek to enforce this Deed or a Customer Contract in its ownname.

4. CONDITION

4.1 This Deed is subject in all respects to the Supplier carrying out its obligationsunder this clause.

4.2 The Supplier must provide the Bank Guarantee to the Minister within fourteen(14) days of the execution of this Deed.

4.3 If the Supplier does not satisfy the requirement in this clause within the timespecified, the Minister may terminate this Deed by giving written notice to theSupplier. No liability whatsoever will attach to the Minister for such

termination.

5. CONTRACT ADMINISTRATION

5.1 The Suppliers Representative and the Ministers Representative each hasauthority to:

5.1.1 exercise all of the powers and functions of his or her party under thisDeed, other than the power to renew or amend this Deed; and

5.1.2 bind his or her party in relation to any matter arising out of or inconnection with this Deed.

5.2 The Supplier must comply with all reasonable instructions given by theMinisters Representative.

5.3 Either party may change its representative by giving fourteen (14) days writtennotice to the other party.

6. TERM

6.1 The Term of this Deed limits only the period of time in which the Customermay issue a Request to the Supplier.

6.2 Subject to subclause 6.3, the term of this Deed commences on the

Commencement Date and expires on the Completion Date (initial term).6.3 Subject to the availability of funding and the Supplier not being in breach of

this Deed, on the expiration of the initial term and on the first anniversary ofthe expiration of the initial term, the Minister may exercise its option to renewthis Deed for a further term of 1 year on the terms and conditions contained inthis Deed, save that the Minister will have no further right to renew the term ifit exercises its option to renew on the first anniversary of the date of theexpiration of the initial term.

7. APPOINTMENT TO THE PANEL

7.1 Subject to this Deed, the Supplier is appointed to the Panel to supply theEquipment and Services to the Minister or to Customers under this Deedduring the Term.


11/54

Page 7 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

7.2 The Supplier will remain on the Panel until the expiry or termination of thisDeed, whichever occurs first.

7.3 Nothing in this Deed:

7.3.1 confers upon the Supplier the exclusive right to supply the Equipment

or Services; or7.3.2 imposes any obligation on the Minister or Customers to deal

exclusively with the Supplier for the performance of Services, or thesupply of the Equipment.

7.4 The Minister reserves the right to engage other suppliers on behalf ofCustomers to supply the Equipment and/or Services or part of the Equipmentand/or Services at any time.

7.5 The Supplier acknowledges that no representation, warranty, guarantee orother statement, express or implied, was made or given to it by the Minister orany officer of the Minister prior to entering into this Deed as to:

7.5.1 the extent to which the Supplier would or would be required to supplyEquipment and/or Services to Customers under this Deed;

7.5.2 the extent to which the requirements of Customers relating to thesupply of Equipment and/or Services would be or will be ordered fromthe Supplier under this Deed; or

7.5.3 as to any other benefits which the Supplier might enjoy as a result ofentering into this Deed.

7.6 The Supplier acknowledges that:

7.6.1 neither the Minister nor any Customer is at any time obliged to engagethe Supplier to supply the Equipment and/or Services; and

7.6.2 the Minister and any Customer may at any time acquire the Equipmentand/or Services in any other way, from any other person on such termsand conditions as may be agreed between the Minister or theCustomer (as the case may be) and that other person.

8. FORMATION OF CUSTOMER CONTRACT

8.1 If a Customer wishes to engage the Supplier to provide Equipment and/orServices under this Deed, the procedures set out in this clause 8 must befollowed.

8.2 A Customer may from time to time issue a Request to the Supplier.8.3 A Request may be placed via the Internet, by email or facsimile. A Request

must be placed between 8.00 am and 5.00 pm on a Business Day. AnyRequest placed outside of these hours will be deemed to be placed as at thecommencement of business (8.00 am) on the next Business Day.

8.4 Where the Supplier agrees to supply the Equipment and/or Servicesrequested by a Customer in a Request, the Supplier must prepare a ProjectPackage and submit it to the Customer within the time agreed by theCustomer.

8.5 The Customer will review and comment on the Project Package and mayquery the Project Package and require the Supplier to modify the ProjectPackage, accept the recommendation in the Project Package or reject theProject Package.


12/54

Page 8 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

8.6 If a Customer does not respond to the Supplier within 10 Business Days ofreceipt of a Project Package, the Project Package will not be proceeded with.

8.7 If a Customer accepts the Project Package, or a modified Project Package,the Customer and the Supplier must complete and sign a Purchase Order forthe supply of those Equipment and/or Services described in the ProjectPackage and which will be further detailed by the Supplier as specified in theSpecifications.

8.8 A Customer Contract between the Customer and the Supplier for the supply ofEquipment and/or Services is formed if and when the Customer and theSupplier have signed a Purchase Order.

8.9 Unless otherwise expressly stated in a Customer Contract, the terms andconditions of a Customer Contract between the Customer and the Supplier arethose appearing in:

8.9.1 this Deed;

8.9.2 the Purchase Order; and8.9.3 any additional documents or requirements that a Customer includes

with the Request when placing it with the Supplier.

8.10 Unless a Customer otherwise agrees, the Supplier must comply with theinvoicing procedures provided in Schedule 2.

8.11 In the event of an inconsistency between any of the terms and conditionscomprising the terms and conditions of a Customer Contract, then to theextent of the inconsistency:

8.11.1 the terms and conditions of this Deed that apply in any way to thesupply of Equipment and/or Services to a Customer by the Supplier

(other than the Customer Contract) prevail over all other terms andconditions;

8.11.2 the Customer Contract prevails over all terms and conditions, otherthan those referred to in subclause 8.11.1;

8.11.3 the terms and conditions appearing in a Purchase Order prevail overall terms and conditions other than those referred to in subclauses8.11.1 and 8.11.2;

8.11.4 as regards additional documents incorporated into a CustomerContract by the Purchase Order, the latest of these in time will prevailover earlier documents.

8.12 Notwithstanding any other provision of this Deed:8.12.1 the termination of a Customer Contract will not operate to terminate

this Deed; and

8.12.2 the termination of this Deed will not terminate any Customer Contractentered into by a Customer and the Supplier, unless the notice oftermination provides otherwise and if a notice of termination specificallypreserves a Customer Contract or Contracts, then such of the clausesof this Deed as are necessary and relevant will continue to have effectin relation to that Customer Contract or Contracts until its or their expiryor termination, despite the termination of this Deed.

8.13 No contract is concluded or exists between a Customer and the Supplier inrelation to any matter within the scope of this Deed unless and until a


13/54

Page 9 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

Purchase Order is completed and signed by both the Customer and theSupplier.

8.14 Any term in any Purchase Order which purports to exclude or limit the liabilityof the Supplier in any way will be void and unenforceable.

9. SUPPLY OF EQUIPMENT AND SERVICES

9.1 The Supplier must:

9.1.1 provide the Equipment and Services to the Minister and any otherCustomer on the terms and conditions set out in this Deed or in aCustomer Contract;

9.1.2 sell the Equipment to the Minister or to a Customer free fromencumbrance;

9.1.3 provide the Equipment Ready for Use at the Delivery Site by theInstallation Date on the terms and conditions of this Deed;

9.1.4 perform its obligations under this Deed carefully, skilfully andcompetently in a workmanlike manner;

9.1.5 use only properly licensed and qualified personnel in providing theServices; and

9.1.6 at its own cost, rectify any damage caused to any of the Delivery Sitesin the course of installing the Equipment as a result of the Suppliersact or omission.

9.2 The Supplier remains responsible for the supply of the Equipment and/orServices regardless of whether the Supplier has subcontracted any part of the

supply of the Equipment and/or Services.9.3 The Supplier acknowledges that the Equipment will be installed at the Delivery

Sites in the manner described in the Specifications and the Supplier agreesthat it will comply in all respects with the Specifications.

10. PRODUCT SPECIFICATIONS

10.1 The Equipment must at all times and for all purposes relevant to this Deedconform with the Specifications and configuration described in Schedule 3.

10.2 No substitution or modification of the Equipment or any component of theEquipment may be made by the Supplier prior to delivery without the priorwritten consent of the Ministers Representative.

11. CHANGES IN TECHNOLOGY

11.1 The Supplier shall throughout the Term use its best endeavours to:

11.1.1 pass on to the Minister and/or the Customer any reductions in the costof Equipment that may at any time during the Term be available to theSupplier; and

11.1.2 make available to the Minister and/or the Customer (at its option) anyimprovements in technology or capability of the Equipment.

11.2 If at the time the Supplier agrees to submit a Project Package pursuant toclause 8.4, the Supplier is able to source the Equipment described in the


14/54

Page 10 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

Request for less than the Price (Discount), the Supplier must ensure thatthe Project Package submitted gives effect to the Discount so that the Supplieroffers to supply the Equipment for consideration that is equal to the Priceminus the Discount.

11.3 If at the time the Supplier agrees to submit a Project Package pursuant toclause 8.4, the Supplier is able to source equipment that is superior in itstechnology or capability to the Equipment described in the Request and meetsthe Specifications (Updated Equipment) for a (specified) price that is equal,or similar to the Price for the equivalent Equipment, the Supplier must ensurethat the Project Package submitted gives the Minister and/or the Customer theoption to purchase either the Equipment or the Updated Equipment.

12. DOCUMENTATION

12.1 At the time of delivery, the Supplier must provide the Minister with theDocumentation in such quantities as is specified in Schedule 3.

12.2 The Documentation must contain sufficient information for the proper

operation of the Equipment during the Warranty Period.

12.3 The Supplier will from time to time and in any event as soon as practicableduring the Warranty Period, provide free of charge to the Minister copies ofsuch amended, revised or supplementary documentation or information as ispublished in relation to the Equipment.

12.4 If the Supplier rectifies a Defect in Equipment or otherwise substitutes ormodifies Equipment in accordance with this Deed prior to the expiry of theWarranty Period, it must within fourteen (14) days of such correction,substitution or modification, ensure that any consequential amendments to theDocumentation are implemented and supplied to the Minister.

13. SITE PREPARATION

13.1 The Minister or a Customer (as the case may be) must prepare the DeliverySite in accordance with the Delivery Site Specifications at its own expense.

13.2 The Supplier must, at the request of the Minister or a Customer, supply suchinformation and assistance as is reasonably required by the Minister or aCustomer to enable the Minister or a Customer to prepare the Delivery Site.

13.3 In addition to and notwithstanding sub-clause 13.2, the Supplier undertakes toprovide the Minister or a Customer with sufficient information to ensure that forthe purposes of installation there will be,:

13.3.1 an adequate supply of electricity;

13.3.2 adequate electrical and mechanical items and fittings; and

13.3.3 appropriate environmental conditions.

13.4 The Supplier must, at the request of the Minister or a Customer, inspect theDelivery Site prior to delivery of the Equipment. The Supplier will, as soon aspracticable, advise the Minister or a Customer as to the suitability of theDelivery Site.

13.5 If the inspection referred to in sub-clause 13.4 reveals the Delivery Site to beunsuitable for the purposes of delivery and installation, the Supplier must

provide the Minister or a Customer with reasons in writing as soon aspracticable and in any event prior to the Delivery Date. On receipt of thatnotification, the Minister or a Customer may:


15/54

Page 11 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

13.5.1 remedy the deficiencies in the Delivery Site at its own expense; or

13.5.2 cancel the Deed or a Customer Contract (if reasonable in thecircumstances) in which event, any moneys paid must be refunded tothe Minister or a Customer within fourteen (14) days.

13.6 If the Delivery Site is rectified by the Minister or a Customer pursuant to sub-clause 13.5:

13.6.1 on completion of the rectification, the Supplier must re-inspect theDelivery Site and the provisions of sub-clauses 13.4 and 13.5 willapply; and

13.6.2 the Minister or a Customer will have no liability to the Supplier in theevent that it cannot accept delivery on the Delivery Date due to delayscaused by the rectification.

13.7 If the Supplier fails to inspect the Delivery Site prior to delivery, whether or notsuch inspection is requested by the Minister or a Customer, the Delivery Site

will be deemed to have been approved by the Supplier.13.8 If the Delivery Site is approved by the Supplier and is subsequently found to

be unsuitable for delivery or installation, the Minister or a Customer may at itsoption:

13.8.1 require the Supplier to meet the cost of any necessary modification toor relocation of the Delivery Site; or

13.8.2 terminate this Deed or a Customer Contract and pursue such remediesas are available under this Deed or a Customer Contract or at law inrespect of a breach by the Supplier.

13.9 For the purposes of this clause, Delivery Site includes access to the Delivery

Site to the extent that such access is under the control of the Minister or aCustomer.

14. PRE-DELIVERY TESTING

14.1 The Supplier must test the Equipment prior to delivery in accordance with itsestablished procedures in order to ensure its suitability for supply, installationand operation.

14.2 The Minister or the Ministers Representative or a Customer may observe theEquipment being subjected to the tests described in sub-clause 14.1.

14.3 In the event that the Minister or a Customer considers, on reasonablegrounds, that the tests conducted pursuant to sub-clause 14.1 reveal that:

14.3.1 the Equipment does not conform to the Specifications;

14.3.2 the Equipment is unlikely to satisfy the Acceptance Criteria; or

14.3.3 the Equipment does not conform with prior representations made bythe Supplier,

the Minister or a Customer may terminate this Deed or a Customer Contractand pursue such remedies as are available under this Deed or a CustomerContract or at law in respect of a breach by the Supplier.


16/54

Page 12 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

15. DELIVERY

15.1 The Supplier must deliver the Equipment and the Documentation to theMinister or a Customer at the Delivery Site on or before the Delivery Date onthe terms and conditions set out in this Deed or in a Purchase Order.

15.2 If required by the Specifications, the Supplier must provide to the Minister or aCustomer, written evidence of manufacturer testing of the Equipment.

15.3 Packing materials are the property and responsibility of the Supplier. Unlessthe Minister or a Customer otherwise directs, the Supplier must remove orotherwise dispose of the packing materials at its own expense as soon aspracticable following delivery of the Products.

16. TESTING & ACCEPTANCE

16.1 The Minister or a Customer may within five (5) Business Days followingdelivery and installation by the Supplier, require the Supplier to perform tests

as stipulated in the Specifications, or if no tests are stipulated, such tests asthe Minister or a Customer considers necessary to ensure that the Equipmentconforms to the requirements of the Specifications (Acceptance Tests ).

16.2 The Minister or a Customer must provide notice in writing to the Supplier ofany Defect or non-compliance of the Equipment.

16.3 If the Equipment does not conform to the requirements of the Specifications,then at the Ministers or a Customers option exercised by written notice to theSupplier:

16.3.1 the Supplier must, if required by the Minister or a Customer, rectify anyDefect within seven (7) days of notification by the Minister or a

Customer; or16.3.2 the Minister or a Customer may reject the Equipment and the Supplier

must immediately remove the Equipment from the Delivery Site.

16.4 If the Minister or a Customer requires the Supplier to rectify any Defect, theMinister or a Customer may repeat the Acceptance Tests and in every case ifthe Acceptance Tests do not demonstrate that the Equipment complies withthe Specifications, is entitled to exercise the options to require rectification orto reject the Equipment.

16.5 If the Minister or a Customer is satisfied that the Equipment conforms to theSpecifications, the Minister or a Customer must accept the Equipment byproviding notice in writing to the Supplier. The date specified in the notice isthe Acceptance Date.

16.6 Acceptance of the Equipment by the Minister or a Customer does not relievethe Supplier of its obligations or warranties under this Deed.

16.7 If the Supplier fails to rectify a Defect when required to do so by the Minister ora Customer under this clause:

16.7.1 the Minister or a Customer may rectify the Defect itself or contract withany other person to rectify the Defect; and

16.7.2 the Supplier must reimburse the Minister or a Customer for all costsincurred in rectifying the Defect.

16.8 If the Minister or a Customer rejects Equipment under this clause, and theSupplier fails to remove the Equipment within fourteen (14) days ofnotification, then the Minister or a Customer may:


17/54

Page 13 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

16.8.1 return the Equipment to the Supplier and claim from the Supplier thecosts of so doing; or

16.8.2 move it to any other place for storage and claim the costs of transportand storage from the Supplier; or

16.8.3 sell the Equipment and claim from the Supplier the costs of so doing tothe extent the costs exceed the proceeds of sale (or remit to theSupplier the excess of the proceeds over the costs).

16.9 If the Minister or a Customer rejects the Equipment, the Supplier must, ifrequired by the Minister or a Customer, supply Equipment that complies withthis Deed within a further two (2) weeks, or the Minister or a Customer mayterminate this Deed or a Customer Contract at its option.

16.10 In this clause, a reference to the Equipment being delivered and installed bythe Supplier will be interpreted as either the Supplier having delivered,installed and integrated the Equipment at the Delivery Site or the Supplierhaving provided the Minister with detailed installation and integration

instructions, as specified in the Specifications.

17. COMMISSIONING SERVICES

After installation of the Equipment at a Delivery Site, the Supplier must assist theMinister or a Customer to commission the Equipment by providing the tests specifiedin the Specifications (Commissioning Services).

18. WARRANTIES

18.1 This clause applies to, but does not limit, all warranties required by this Deed.

18.2 The Warranty Period in respect of Equipment is the period specified inSchedule 1 and in relation to each Delivery Site will commence from theAcceptance Date;

18.3 The Supplier warrants that no additional authorisation, consent, approval,licence or filing or registration with any court or government department,commission, agency or instrumentality or third party is necessary or requiredfor the Supplier to provide any services in connection with this Deed.

18.4 The Supplier warrants that any Equipment purchased by the Minister or aCustomer under this Deed:

18.4.1 is fit for its intended purpose notified by the Minister or a Customer tothe Supplier and is suitable for normal use as reasonably contemplatedby the Minister or a Customer;

18.4.2 complies with the Specifications;

18.4.3 is newly manufactured and is free from defects;

18.4.4 will be properly installed;

18.4.5 will operate in accordance with any relevant technical specifications;and

18.4.6 will continue to perform at a level consistent with the AcceptanceCriteria.

18.5 The Supplier further warrants that:


18/54

Page 14 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

18.5.1 all sub-assemblies that perform identical functions will be fullyinterchangeable;

18.5.2 all components and materials will not, in normal operating conditions,emit fumes, liquids, electromagnetic radiation or noise which could bedetrimental to persons, the environment or the operation of otherequipment;

18.5.3 it will at all times:

(a) use appropriate materials of high quality;

(b) employ appropriate techniques and standards;

(c) provide all services with due care, skill and attention;

18.5.4 it is authorised to enter into this Deed and grant the rights to theMinister contained in this Deed; and

18.5.5 it is able to pass good title to the Equipment purchased by the Minister

or a Customer free and clear from any encumbrances.18.6 The Minister or a Customer may test the Equipment to ensure compliance with

warranties given under this Deed.

18.7 During the Warranty Period the Supplier must repair or replace any Equipment(or any component of the Equipment) that fails to comply with a warranty givenin this clause, at the Suppliers cost.

18.8 The Supplier need not repair or replace any Equipment (or any component ofthe Equipment) that fails to comply with a warranty pursuant to clause 18.7 ifthe failure to comply is entirely due to external causes after the AcceptanceDate such as accident, abuse, misuse, mechanical or electrical overload,abrasion, corrosion or normal wear and tear. If a failure to comply with a

warranty is partially due to external causes after the Acceptance Date andpartially caused by the Supplier, the Supplier must repair or replace anyEquipment (or any component of the Equipment) that fails to comply with awarranty, and the Supplier and the Minister (or Customer) must use bestendeavours to agree to the apportionment of cost for the repair orreplacement.

18.9 The Supplier must use its best endeavours to inform the Minister (orCustomer) of external risks to the Equipment (or any component of theEquipment) that may result in the Equipment (or any component of theEquipment) failing to comply with a warranty.

18.10 Warranties which apply to Equipment under this Deed, apply to any remedialwork undertaken by the Supplier, including to Equipment replaced or repairedby the Supplier.

18.11 The Supplier must keep the Minister and Customers indemnified from andagainst all losses, claims, costs and expenses however arising which theMinister or the Customer may incur as a result of a breach of a warranty(provided that such losses, claims, costs and expenses are caused by theSuppliers breach of a warranty under this Deed).

18.12 The Warranty Period in respect of repaired or replaced Equipment orcomponents of Equipment will recommence from the date the Suppliercertifies in writing that such repair or replacement is complete.

18.13 The Supplier will meet all costs incidental to the discharge of its warrantyobligations including the provision of back-up equipment and any packing,freighting, disassembly and reassembly costs.


19/54

Page 15 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

18.14 In addition to the warranties described in clauses 18.4 and 18.5, the Supplierwill assign the Equipment Warranty to the Minister or Customer in relation toEquipment or components of Equipment supplied to the Minister or Customer(with effect on or before the Acceptance Date).

19. OWNERSHIP & RISK IN THE EQUIPMENT

19.1 Risk in the Equipment passes to the Minister or a Customer when theEquipment is delivered to the Delivery Site.

19.2 Ownership and property in the Equipment pass to the Minister or a Customerupon acceptance of the Equipment in accordance with clause 16.

20. TRAINING

20.1 The Supplier will provide to such persons as the Minister or a Customer

notifies in writing, such training as the Minister or a Customer considersnecessary to enable operation of the Equipment in a manner reasonablycontemplated by the Minister or a Customer.

20.2 Without limiting clause 20.1, the Supplier must comply with the trainingrequirements specified in the Specifications.

21. SUPPORT SERVICES

21.1 During and after the expiry of the Warranty Period, the Supplier must provideSupport Services as set out in Schedule 4.

21.2 The Supplier warrants, in respect of the Support Services, that it will at all

times:

21.2.1 use appropriate materials of high quality;

21.2.2 use only appropriately qualified and licensed Personnel;

21.2.3 employ appropriate techniques and standards;

21.2.4 exercise due care, skill and attention;

and that:

21.2.5 where the Supplier replaces parts of the Equipment pursuant to thisclause, the replacement parts will be:

(a) of at least equal quality to the replaced parts;(b) newly manufactured;

(c) free from defects in materials and workmanship; and

(d) suitable for normal use as reasonably contemplated by theMinister or a Customer; and

21.2.6 all sub-assemblies which perform identical functions will be fullyinterchangeable and components and materials will not, in normaloperating conditions, emit fumes, liquids, electro-magnetic radiation ornoise which could be detrimental to persons, the environment or theoperation of other equipment.

21.3 The Supplier must provide Helpdesk Services and defect correctioninformation, a work around or other remedial services or advice required to


20/54

Page 16 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

restore the Equipment to full functionality, or, if the Equipment is not restoredto full functionality within the timeframes specified in Attachment 1, replace theEquipment and supply any Software Updates and/or New Releases.

21.4 Without limiting sub-clause 21.2, the Support Services must be provided at astandard necessary to ensure the Equipment conforms with the Specificationsat all times.

21.5 The Supplier must meet all costs incidental to the discharge of its warrantyobligations, including the provision of back-up equipment and any packing,freighting, disassembly and reassembly costs.

22. SECURITY

22.1 Without limiting the operation of any other clause, the Supplier acknowledgesthat the Customers rights under this clause are fundamental to this Deed.

22.2 When providing Services under this Deed, the Supplier acknowledges that:

22.2.1 the Suppliers Personnel must hold relevant accreditation for the worksbeing performed and be pre-approved by the Minister or a Customer;

22.2.2 the Suppliers Personnel used in the delivery of the Services will berequired to undergo a police clearance check and/or security check ofcriminal convictions and/or associations prior to being given access toselected sites and that the Supplier must procure the cooperation of itsPersonnel in relation to such checks; and

22.2.3 any Supplier Personnel who does not display appropriate accreditationand/or who has not passed the police clearance checks and/or securitychecks to the Ministers or a Customers satisfaction, or who have not

been approved by the Minister or a Customer, will be refused access toDelivery Sites.

22.3 The Supplier must ensure that its Personnel provide the following informationto the Minister or a Customer to enable the Minster or a Customer toundertake police and/or security checks:

22.3.1 full correct name;

22.3.2 any alias names used;

22.3.3 date of birth;

22.3.4 current residential address;

22.3.5 number of years at current residential address;22.3.6 previous residential address;

22.3.7 telephone services: landline number and mobile phone number; and

22.3.8 drivers licence number, together with a clear and legible photocopy ofcurrent drivers licence.

22.4 If the Minister or a Customer forms the view (in the Ministers or a Customerssole discretion) that any of the Supplier Personnel is not suitable to providethe Services, the Minister or a Customer may (at the Ministers or aCustomers absolute discretion and without liability to the Supplier or therelevant Personnel) direct the Supplier to cease to employ or engage the

relevant Personnel for the purposes of the Services.


21/54

Page 17 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

22.5 The Supplier must notify the Minister or a Customer immediately it becomesaware of any information that may affect the Ministers or a Customersapproval of any Supplier Personnel.

22.6 The Minister or a Customer may inform the Supplier of any security practicesand procedures implemented by the Minister or a Customer from time to time.The Supplier must comply with those procedures at all times.

22.7 The Supplier must ensure that all relevant Personnel are aware of and, whererelevant, comply with the provisions of this clause at all times.

22.8 Nothing in clauses 22.2 to 22.7 (inclusive) relieves the Supplier of anyobligation with respect to the delivery of the Services.

22.9 The Supplier must ensure that each of its Personnel enters into aconfidentiality Deed in a form approved by the Minister or a Customer ifrequired by the Minister or a Customer.

23. PRICE

The Price for the Equipment is set out in Schedule 2 and includes all governmenttaxes, rates, duties, fees and charges other than GST.

24. GOODS & SERVICES TAX

24.1 The Price is exclusive of GST.

24.2 The Supplier acknowledges and represents that:

24.2.1 it is registered under the ANTS GST Act and the A New Tax System(Australian Business Number) Act 1999(Cth) (ABN Act), and

24.2.2 the supplies made by it under this Deed will be Taxable Supplies; and

24.2.3 the ABN shown inSchedule 1 is its ABN.

24.3 Should the representations at sub-clause 24.2 be or become incorrect:

24.3.1 the Minister may be obliged under the Taxation Administration Act1953 (Cth) to deduct a withholding from the Price and will not beobliged to gross up that amount or make any other compensation tothe Supplier;

24.3.2 if a supply by the Supplier is not a Taxable Supply, the Minister isentitled to reduce the amount payable by the amount which would have

been attributable to GST had the supply been a Taxable Supply.

25. PAYMENT ARRANGEMENTS

25.1 Subject to the provisions of this clause, the Minister or a Customer is liable topay the Price for Equipment supplied and accepted in accordance with thisDeed within thirty (30) days of receipt of a valid invoice.

25.2 An invoice under this Deed is a valid invoice if it meets the followingrequirements:

25.2.1 it has been certified for payment by the Minister or a Customer;

25.2.2 it contains information reasonably requested by the Minister or aCustomer; and


22/54

Page 18 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

25.2.3 it is a Tax Invoice (unless every supply to which the invoice relates isnot a Taxable Supply).

25.3 Neither the Minister nor a Customer is obliged to make any payment underthis Deed unless the Supplier has provided a Tax Invoice in respect of thatpayment.

26. DELAYS

Subject to clause 25, if the Supplier fails to deliver Equipment within two (2) weeksafter the Delivery Date, then notwithstanding anything else contained in this Deed, theMinister or a Customer may terminate this Deed or a Customer Contract by writtennotice to the Supplier and may recover from the Supplier the amount of all directdamage and loss suffered by the Minister or a Customer resulting from such failure.Upon such termination, the Supplier must (without prejudice to the Ministers or aCustomers right to recover the amount of such damages and loss) immediatelyrefund to the Minister or a Customer all moneys previously paid to the Supplier in

respect of the undelivered Equipment under this Deed or a Customer Contract (ifany).

27. EXTENSION OF TIME

27.1 If the Supplier is delayed in the discharge of an obligation to the Minister underthis Deed by any cause beyond the reasonable control of the Supplier (excepta cause arising out of any act or omission on the part of the Suppliersemployees, agents or sub-contractors or their employees or agents) which theSupplier considers justifies an extension of the time specified in this Deed forthe performance of the Suppliers obligations under this Deed, the Supplier

must:27.1.1 notify the Minister in writing of the facts giving rise to such delay within

seven (7) days after such facts have come to the Suppliers notice;and

27.1.2 within seven (7) days after the circumstances causing the delay haveceased, notify the Minister in writing of the period of delay so causedand give details of the likely effect on this Deed.

27.2 The Minister must consider the Suppliers request and must, within thirty (30)days after receiving a notice under this clause, notify the Supplier of itsdecision.

27.3 Whether or not the Supplier has given notice under this clause, the Ministermay at any time, by notice in writing to the Supplier, extend the time forperformance of an obligation of the Supplier by nominating in the notice a timeor date for such performance and the time or date so specified will, for thepurposes of this Deed, be the date for performance of that obligation.

27.4 Failure by the Minister to grant an extension of time, or delay by the Minister ingranting an extension of time, will not cause the date for the performance ofthe Suppliers obligations to be set at large.

27.5 In the event of any extension of time being granted pursuant to this clause, theSuppliers obligations as regards time will be amended accordingly.


23/54

Page 19 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

28. INTELLECTUAL PROPERTY RIGHTS

28.1 The Supplier must not infringe the Intellectual Property Rights of any person inperforming its obligations under this Deed.

28.2 The Supplier must indemnify and keep indemnified the Minister from and

against all costs, expenses and liabilities whatsoever arising out of, or inconnection with, any claim that the provision of the Equipment and associatedservices by the Supplier infringes the Intellectual Property Rights of anyperson.

28.3 If it is determined by any independent tribunal of fact or law, or if it is agreedbetween the parties to a dispute, that an infringement of Intellectual PropertyRights has occurred, and this infringement has any effect on the right of theMinister to use the Equipment, the Supplier must at its own expense:

28.3.1 obtain for the Minister the right to continue using the Equipment; or

28.3.2 modify or replace the Equipment (without detracting from their overall

performance) so as to avoid the infringement and compensate theMinister for the amount of any direct loss or damage sustained orincurred by the Minister during or as a result of such modification orreplacement); or

28.3.3 if the solutions in either of the two preceding paragraphs cannot beachieved on reasonable terms:

(a) remove the Equipment from the Delivery Site;

(b) refund the moneys paid for the Equipment and/ or associatedservices in relation to the Equipment; and

(c) pay to the Minister the amount of any direct loss or damage

sustained as a result of the unavailability of the Equipment,provided that:

(i) the Minister, in its sole discretion, may determine that it isnecessary to retain and continue to use the Equipmentand any payments required to be made to a third partyas a consequence of this action must be reimbursed bythe Supplier to the Minister.

28.4 The Supplier must effect and maintain insurance against the risks referred toin this clause and must on request by the Minister produce to the Ministerwritten evidence of the currency of such insurance.

28.5 For the purposes of this clause, infringement includes unauthorised actswhich would, but for the operation of section 163 of the Patents Act 1990(Cth), section 40A of the Designs Act 1906 (Cth) and section 183 of theCopyright Act 1968(Cth) constitute an infringement.

28.6 For the avoidance of doubt, all Intellectual Property in material created throughthe Ministers use of the Equipment vests in the Minister on its creation.

29. RECORDS

29.1 The Supplier must maintain and retain full and proper records of all Equipmentand Support Services provided under this Deed or any Customer Contract for

a period of six (6) years.29.2 Such records will include all data used in the creation of invoices issued

pursuant to this Deed or a Customer Contract.


24/54

Page 20 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

29.3 Upon reasonable notice being given, the Supplier will make the recordsreferred to in this clause available to the Minister and allow the inspection andcopying of such records.

30. REPORTSIn addition to any reports required under the Schedules (if any), the Supplier mustprovide reports to the Minister as requested by the Minister providing suchinformation as the Minister requires on the performance and progress of theEquipment and/or Services.

31. INSURANCE

31.1 Insurance of Equipment

31.1.1 The Supplier must effect and maintain an insurance policy which will

cover the Equipment until Delivery for its full value against loss ordamage, including loss or damage in transit and during unloading.

31.1.2 The policy referred to in sub-clause 31.1.1 must be in the name of theSupplier and must cover the Supplier and all sub-contractors for theirrespective rights, interests and liabilities.

31.2 Public Liability and Product Liability Insurance

31.2.1 The Supplier must effect and maintain a Public and Product Liabilitypolicy of insurance covering the Supplier in respect of any claim arisingfrom, or related to, the supply of the Equipment.

31.2.2 The policy referred to in this clause must be for not less than the

amount stated in Schedule 1.31.2.3 The policies must be maintained as follows:

(a) Public Liability: until a period equivalent to the Warranty

Period has expired after the expiry or termination of this Deed;

(b) Product Liability: for the Term.

31.3 Workers Compensation Cover

The Supplier must ensure that any requirements in relation to WorkersCompensation legislation are complied with in respect of any employees, sub-contractors or other persons engaged by the Supplier in relation to the supply

of Equipment and associated services in respect of the Equipment under thisDeed.

31.4 Proof of Policies

The Minister may require the Supplier to provide proof that the policies ofinsurance required by this clause have been effected and maintained. Thatproof of policy must note the interests of the Minister under this Deed.

31.5 Termination

The Minister may terminate this Deed if the Supplier does not comply with thisclause.


25/54

Page 21 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

32. PROTECTION OF CONFIDENTIAL INFORMATION

32.1 The Supplier must treat as confidential all information obtained from theMinister or a Customer pursuant to this Deed or a Customer Contract andmust not divulge or disclose such information to any person other than to itsemployees to the extent that an employee needs to know such information forthe performance of duties in respect of this Deed or a Customer Contract,other than with the consent of the Minster or the relevant Customer. It is not abreach of this clause if the Supplier is required by law to disclose confidentialinformation or discloses such information to its professional advisers in theirprofessional capacity.

32.2 For the purposes of this clause information is not confidential which is alreadypublic knowledge or becomes so at a future date (otherwise than as a result ofa breach of this clause) or which is trivial or obvious or which is contained inthis Deed.

32.3 The Supplier must ensure that its Personnel are aware of and comply with the

provisions of this clause.32.4 The Supplier acknowledges that the Minister or a Customer may disclose

confidential information obtained from the Supplier:

32.4.1 to Parliament, the Governor, Cabinet or to a Parliamentary or Cabinetcommittee or sub-committee;

32.4.2 to any agency, authority, instrumentality, Minister or officer of the Stateof South Australia to whom it is customary to disclose the ConfidentialInformation (whether or not the Minister is legally obliged to do so); or

32.4.3 for the purposes of prosecuting or defending any legal proceedings.

32.5 The obligations as to confidentiality pursuant to this clause will survive the

expiration or any termination of this Deed.

33. BANK GUARANTEE

33.1 The Supplier will, within fourteen (14) days of the execution of this Deed,deposit with the Minister, a Bank Guarantee in a form and from a Bankapproved by the Minister (hereinafter called the Bank) for the sum of FIVEHUNDRED THOUSAND DOLLARS ($500,000.00) (exclusive of GST) to beheld by the Minister at all times during the term of this Deed for the due andproper performance by the Supplier of all of the Suppliers covenants,obligations and provisions in this Deed.

33.1.1 Without limiting clause 33.1, the Bank Guarantee referred to in clause33.1 must:

(a) be drawn in favour of the Minister; and

(b) be unconditional

(c) be in respect of the Suppliers obligations under the Deed.

33.1.2 The Bank Guarantee referred to in clause 33.1 shall continue in forceuntil the expiration of the term or until the Minister shall inform the Bankthat its guarantee is no longer required by the Minister (suchnotification to be made within a reasonable time after the expiration or

other determination of this Deed) whichever is the earlier date.33.1.3 The Minister may claim against the Bank under its guarantee as a

liquidated amount for each and every liability which may be incurred by


26/54

Page 22 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

the Minister arising from any breach on part of the Supplier under thisDeed.

33.1.4 The giving of such a guarantee by the Bank shall not operate to relievethe Supplier from any of the obligations on its part under any otherprovision of this Deed nor shall the Bank Guarantee limit the right ofthe Minister to recover from the Supplier in full all moneys payable tothe Minister under any other provision of this Deed.

33.1.5 On each and every successive anniversary of the CommencementDate or within a reasonable time thereafter (during the Term) theMinister shall (if and only if the Bank has made a payment or paymentsto the Minister in full or partial discharge of the Bank Guarantee duringthe year prior to such anniversary) be entitled by written notice to theSupplier to require the Supplier to deposit with the Minister a furtherBank Guarantee the amount of which shall equal the sum of:

(a) the amount of the Bank Guarantee drawn during the year prior

to the relevant anniversary; and

(b) four percent (4%).

33.2 In the event that the Supplier should have disputed in a court of competentjurisdiction the claim that the Minister giving rise to the drawing of the BankGuarantee pursuant to this clause 33 then the Minister shall not be entitled torequire the Supplier to deposit with the Minister a further Bank Guarantee inrespect of that claim until the dispute shall be finally determined.

34. INDEMNITY

34.1 The Supplier hereby indemnifies and undertakes to keep the Minister and itsemployees indemnified from and against any and all costs, losses, damages,expenses (including legal expenses), liabilities or other outgoings ofwhatsoever kind or howsoever arising suffered or incurred by the Minister orits employees arising out of this Deed in respect of:

34.1.1 any negligence, wrongful act or omission or breach of duty of or by theSupplier; or

34.1.2 any Event of Default or breach by the Supplier of any of the provisionsof this Deed.

34.2 This clause will survive the expiry or earlier termination of this Deed.

35. REMEDIES

35.1 The Supplier acknowledges that any claim the Minister may have against theSupplier may be set off against the Ministers liability to pay the Supplier underthis Deed.

35.2 The rights and remedies provided under this Deed are cumulative and notexclusive of any remedies provided by law or under this Deed.

36. TERMINATION

36.1 The Minister may terminate this Deed upon ten (10) Business Days written

notice in the event that the Supplier commits an Event of Default.36.2 Without prejudice to its rights of termination pursuant to this Deed, the Minister

may by written notice to the Supplier require the Supplier to rectify an Event of


27/54

Page 23 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

Default or any other breach of this Deed within ten (10) Business Days of suchnotice.

36.3 The Minister may terminate this Deed on seven (7) days written notice if theSupplier has been unable or has failed to comply with a notice requiring it torectify an Event of Default or other breach of this Deed or a CustomerContract.

36.4 The Minister may terminate this Deed immediately upon giving written noticeto the Supplier if the Supplier has failed to comply with a direction underclause 22.4 requiring any one or more of the Suppliers Personnel to bewithdrawn from performing the Services.

36.5 A Customer may terminate a Customer Contract immediately upon givingwritten notice to the Supplier if the Supplier has failed to comply with adirection under clause 22.4 requiring any one or more of the SuppliersPersonnel to be withdrawn from performing the Services.

36.6 The Minister may terminate this Deed for convenience upon thirty (30) days

written notice.

36.7 Termination of this Deed by the Minister will not have the effect of terminatingany Customer Contract.

36.8 Termination of this Deed does not affect any accrued right or liability of theparties nor will it affect the coming into force or the continuation in force of anyprovision of this Deed that is expressly or by implication intended to come intoor continue in force on or after termination. Without limitation, warranty andSupport Service obligations with respect to accepted Equipment continuedespite termination of this Deed.

37. COMPLIANCE WITH LAWS & POLICIES

37.1 The Supplier must comply with the requirements of all Laws.

37.2 The Supplier must comply with all South Australian Government policiesrelevant to the performance of its obligations under this Deed as notified bythe Minister in writing from time to time.

38. RESOLUTION OF DISPUTES

38.1 Subject to the following sub-clause, neither party may take legal proceedingsin respect of any dispute in relation to this Deed unless it has attempted

resolution of the dispute in accordance with this clause.38.2 Either party may, in a case of genuine urgency, seek immediate interlocutory

relief or an interim remedy.

38.3 Subject to the preceding sub-clause, all disputes must be addressed asfollows:

38.3.1 each party must submit the dispute in writing to one of its seniorofficers who has not previously been involved in the dispute(Negotiators) within seven (7) days of the dispute arising.

38.3.2 the Negotiators must meet as soon as practicable to resolve thedispute.

38.3.3 if the Negotiators cannot resolve the dispute within fourteen (14) daysof its reference to them, each Negotiator must prepare a written


28/54

Page 24 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

summary of his or her attempts to resolve the dispute and immediatelyrefer that summary:

(a) in the case of the Minister to the Ministers Executive Negotiatornamed in Schedule 1;

(b) in the case of the Supplier to the Suppliers ExecutiveNegotiator named in Schedule 1,

(Executive Negotiators).

38.3.4 The Executive Negotiators must meet as soon as practicable to resolvethe dispute, but in any case within seven (7) days of its reference tothem. Each party must authorise and inform its Executive Negotiatorsufficiently so that he or she can undertake that meeting withoutdetailed reference to another person.

38.4 Notwithstanding the existence of a dispute each party must continue toperform its obligations under this Deed.

38.5 This clause survives any expiry or termination of this Deed.

39. PUBLICITY

The Supplier must not make any public announcement or media release(announcement) or permit an announcement to be made in respect of any aspect ofthis Deed or the Equipment, without the prior written approval of the Minister.

40. CONFLICT OF INTEREST

40.1 The Supplier warrants that it does not hold any office or possess any property,

is not engaged in any business, trade or calling and does not have anyobligations by virtue of any contract whereby, directly or indirectly, duties orinterests are or might be created in conflict with, or might appear to be createdin conflict with, its duties and interest under this Deed.

40.2 The Supplier must disclose to the Minister in writing, all actual and potentialconflicts of interest that exist, arise or may arise (either for the Supplier or itsemployees, agents or sub-contractors) in the course of performing itsobligations under this Deed as soon as practicable after it becomes aware ofthat conflict.

41. COUNTERPARTSThis Deed may be executed in two separate counterparts, each of which so executedand delivered will comprise an original, but all counterparts will together constituteone and the same Deed.

42. ENTIRE DEED

This Deed incorporates any attached Schedules, contains the entire Deed betweenthe parties with respect to its subject matter and supersedes any prior Deed,understanding or representation of the parties on the subject matter.


29/54

Page 25 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

43. VARIATION OF DEED

No amendment or modification of, nor addition to, this Deed will be binding upon theparties unless it is in writing and signed by the parties.

44. WAIVER

A partys:

44.1 failure to exercise, or delay in exercising, a power or right does not operate asa waiver of that power or right;

44.2 waiver or exercise of a power or right does not preclude its future exercise orthe exercise of any other power or right; and

44.3 waiver of any power or right will not be effective unless it is in writing andsigned by the Representative of the party waiving its rights.

45. GOVERNING LAW

The law of this Deed is the law applicable in the State of South Australia and:

45.1 the parties submit themselves to the exclusive jurisdiction of the courts havingjurisdiction in that State;

45.2 any proceedings brought in a Federal Court must be instituted in the Adelaideregistry of that court; and

45.3 the parties undertake not to apply to transfer any proceedings to a registry ofthe Federal Court located in another State or Territory, or to the courts ofanother State or Territory.

46. SEVERANCE

46.1 Each word, phrase, sentence, paragraph and clause of this Deed is severable.

46.2 If a court determines that a part of this Deed is unenforceable, invalid, illegalor void that court may sever that part.

46.3 Severance of a part of this Deed does not affect any other part of this Deed.

47. READING DOWN

If a word, phrase, sentence, paragraph or other clause or provision of this Deedwould otherwise be unenforceable, illegal or void the effect of that provision must sofar as possible, be limited and read down so that it is not unenforceable, illegal orvoid.

48. COSTS

Except as otherwise provided by this Deed, each party is responsible for its own costsand risks in relation to the negotiation and preparation of this Deed and all things tobe done under this Deed.


30/54

Page 26 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

49. NOTICES

49.1 A notice, approval, direction, consent, offer, demand or other communicationin connection with this Deed must be:

49.1.1 in writing;

49.1.2 signed by an authorised representative of the relevant party; and

49.1.3 given to the recipient party:

(a) by hand delivery;

(b) by prepaid mail sent to that party; or

(c) by facsimile transmission to that party.

49.2 For the purposes of delivery of notices:

49.2.1 mail must be sent to the address of the recipient party set out inSchedule 1; and

49.2.2 facsimile messages must be marked for the attention of the personspecified in Schedule 1.

49.3 A party may from time to time change any of its details for notices by five (5)Business Days written notice to the other.

49.4 A notice given to a person in accordance with this clause is treated as havingbeen given and received:

49.4.1 on the day of delivery if delivered before 5.00 pm on a Business Day,otherwise on the next Business Day;

49.4.2 if sent by pre-paid mail, on the third Business Day after posting; or

49.4.3 if transmitted by facsimile and a correct and complete transmissionreport is received on the day of transmission: on that day if the reportstates that transmission was completed before 5.00 pm on a BusinessDay, otherwise on the next Business Day, provided that:

49.4.4 if the recipient receives by facsimile transmission a notice that isillegible, the recipient must notify the sender immediately and thesender must continue to retransmit the notice until the recipientconfirms that it has received a legible notice. The rules in relation totransmission reports as stated above apply.

50. NO ASSIGNMENT

The Supplier must not assign, encumber or otherwise transfer any of its rights orobligations under this Deed without the prior consent of the Minister, which consentmust not be unreasonably withheld.

51. RELATIONSHIP

51.1 Nothing in this Deed constitutes any relationship of employer and employee orpartnership between the parties.

51.2 No party has any authority to bind the other party in any manner without theprior consent of the other party.


31/54

Page 27 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

52. TIME OF THE ESSENCE

Time is of the essence in respect of any time, date or period specified either in thisDeed or in any notice or other communication served pursuant to this Deed.

53. FORCE MAJEURE

53.1 The affected partys rights and obligations directly affected by the ForceMajeure and any corresponding entitlement of the other party will besuspended to the extent and for so long as the performance of the affectedpartys rights and obligations are prevented or delayed by the Force Majeure.

53.2 The affected party must notify the other party if the Force Majeure ispreventing it from complying with any of its obligations as soon as it becomesaware of the Force Majeure.

53.3 The affected party must:

53.3.1 use its best endeavours to work around or overcome the effect of theForce Majeure;

53.3.2 keep the other party informed of the continuation and expectedduration of the Force Majeure and of measures taken to comply withthis clause; and

53.3.3 recommence performance of its obligations as soon as possiblewithout delay after the Force Majeure has ceased to exist.

54. CONTRACT DISCLOSURE

54.1 The Minister may disclose this Deed and/or information relating to this Deed in

either printed or electronic form and either generally to the public or to aparticular person as a result of a specific request.

54.2 Nothing in this clause derogates from:

54.2.1 the Suppliers obligations under any provision of this Deed; or

54.2.2 the provisions of the Freedom of Information Act, 1991.

55. AUDITOR-GENERAL

Nothing in this Deed derogates from the powers of the Auditor-General under thePublic Finance and Audit Act 1987(South Australia).

56. STAMP & CUSTOM DUTIES

56.1 The Supplier will pay any stamp duty payable in respect of this Deed.

56.2 If it becomes necessary for the Minister to apply for remission of customs dutypayable in respect of the Equipment, then the Supplier must provide suchinformation for such application as the Minister may request. Alternatively, ifthe Minister so requires, the Supplier must make application for remission, andaccount to the Minister for the amount of duty remitted.


32/54

Page 28 of 28

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

57. INSKILL

57.1 This clause applies if the Supplier is supplying the State with services, or acombination of goods and services (comprised of no less than fifty percentservices and assessed according to the respective price for goods andservices) with a total annual value of $250,000 (GST inclusive) per annum ormore.

57.2 For the purposes of this clause, the value of this Deed is the Price.

57.3 The annual value of this Deed is the Price divided by the Term in years.

57.4 If this clause applies, the Supplier shall not enter into this Deed unless it isregistered with InSkill SA and produces evidence of registration (in the form ofthe InSkill SA registration number and date of expiry) to the Minister prior toexecution.

57.5 Upon request by the Minister or the agency of the Crown responsible for theInSkill SA program, the Supplier shall supply details of the currency of InSkill

SA (registration number and expiry date).

Executed as a DEED

THE COMMON SEALof the MINISTER FOR )POLICEwas affixed to this Deed with )the authority of the Minister in the presence of: )

Witness

Print name

THE COMMON SEALof TYCO AUSTRALIA )PTY LTDwas affixed to this Deed in )Accordance with its Rules )

Director

Director/Secretary


33/54

Page 1 of 3

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

Schedule 1General Particulars

Item 1

Commencement Date The date on which this Deed is signed.

Item 2

Completion Date Two (2) years from the Commencement Date

Item 3

Term Extension 1 x 12 month option to extend the initial term

Item 4

Ministers Representative Mr Paul Smith

Manager, Capital Works Unit

Physical Asset Services Branch

30 Flinders Street

ADELAIDE SA 5000

Phone: 08 8204 2828

Email: [email protected]

or as otherwise advised from time to time

Suppliers Representative Mr Andrew McLeod

Business Development Manager

Tyco Australia Pty Ltd trading as ADT Security

38 South Street

RYDALMERE NSW 2116

Phone: 02 9947 7300

Email: [email protected] as otherwise advised from time to time

Item 5

Warranty Period Twenty four months minimum - see Items 5 and 6 ofSchedule 2 - Price and Payment


34/54

Page 2 of 3

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

Item 6

Warranty Response Time See Attachment 1.

Item 7

Training Requirements See to Schedule 3.

Item 8

Insurance Public and Product Liability Policy - Ten Million Dollars

($10,000,000)

Item 9

Reporting Requirements If requested, the Supplier will provide to the Minister any

other reports reasonably necessary to demonstrate theongoing financial viability of the Supplier.

Item 10

Suppliers ABN 80 008 399 004

Item 11

Executive Negotiators Minister - Director, Business Service, SAPOL


Supplier: General Manager, ADT Security


Item 12

Notices

Ministers Representative: Peter Jacka,

Manager, Procurement and Contracting Management

Services BranchSouth Australia Police30 Flinders Street Adelaide SA 5000Telephone: (08) 8204 2726Facsimile: (08) 8204 2323Email address: [email protected]

Attention: Mr Peter Jacka


35/54

Page 3 of 3

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

Suppliers Representative: Andrew McLeod

Business Development Manager

Tyco Australia Pty Ltd trading as ADT Security

38 South Street

RYDALMERE NSW 2116Phone: 02 9947 7300

Email: [email protected]



36/54


37/54

Page 1 of 7

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

Schedule 2Price and Payment

1. CCTV Product

Detail Descript ion Unit Price ex GST

$1AU =

$US.60 $US.65

$US.70

$US.75

$US.80 $US.85 $US.90 $US.95

DVTEL PRODUCTS

Classic Software

LAT50-C-DMC Classic software, Max. 70

camera/decoder connections 322 295 272 253 236 221 208 197

LAT-C-CAM camera license 440 403 372 345 322 302 285 269

LAT-C-CAM camera license (decoder). 440 403 372 345 322 302 285 269

LAT50-C-U Additional user license 349 320 295 274 256 240 226 213

LAT-C-FOI failover license, cost per camera 194 178 164 152 142 133 126 119

Elite Software

LAT50-EL-DMC Latitude Elite software, for over 70

cameras/decoder connections 11,259 10,320 9,527 8,846 8,256 7,740 7,285 6,880

LAT50-EL-CAM Camera or Decoder license 472 432 399 371 346 324 305 288

LAT50-EL-U Additional User License 411 377 348 323 302 282 266 251

LAT50-EL-FOI Fail over Media Archive Server

Software, cost per camera 228 209 193 179 168 157 148 139

Encoders/Decoders

DVT-7608E - 8 Channel Inputs no Audio 4,732 4,338 4,004 3,718 3,470 3,253 3,062 2,892

DVT-7608EA - 8 Channel Inputs + 1 Audio Input 5,221 4,786 4,418 4,102 3,829 3,589 3,378 3,191

DVT-7401DA - Decoder + 1 Audio Out 1,229 1,126 1,040 966 901 845 795 751

DVT-7401EA Video encoder--1 channel, video &

audio, quad o/p 1,558 1,428 1,318 1,224 1,140 1,071 1,008 952

M1900 Rack mount kit for 7401 encoders/decoders 316 290 268 249 232 217 205 193

DVTEL Hardware

DIRECTORY/ MASTER SERVER

Pacom VSC 4HDD DVTel WINSVR2003, 2RU, 4

Bay, redundant power supply, mirrored hot

swappable OS. No storage. 11,480 10,657 9,926 9,293 8,738 8,250 7,815 7,426

Hard Drives - 1TB 578 535 497 464 435 409 387 366

Hard Drives - 2TB 750 750 750 750 750 750 750 750


38/54

Page 2 of 7

CSO 94566 / 3007817 / FINAL PXCOZ / 04/11/2009

Detail Descript ion Unit Price ex GST

$1AU =

$US.60 $US.65

$US.70

$US.75

$US.80 $US.85 $US.90 $US.95

ARCHIVE SERVER

DVTel WINSVR2003, 22 bay, 5RU, redundant power

supply, mirrored hot swap OS, No storage. 18,202 16,878 15,703 14,685 13,793 13,007 12,308 11,683

NVR WinSrv2003 4Bay 2RU 11,407 10,578 9,842 9,204 8,646 8,153 7,716 7,324

NVR WinSrv2003 6 Bay 3RU 11,306 10,484 9,753 9,120 8,566 8,077 7,643 7,254

NVR WinSrv2003 10 Bay 3RU 12,378 11,475 10,674 9,979 9,371 8,835 8,358 7,931

DVTel NVR WINSVR2003, 14 bay, 4RU, redundant

power supply 14,268 13,237 12,322 11,529 10,835 10,223 9,678 9,191

WORKSTATIONS

Operator workstation, mid range, dual head, tower

case 3,420 3,166 2,939 2,743 2,572 2,421 2,286 2,166

Operator workstation, high end, quad head, tower

case 5,839 5,404 5,018 4,684 4,390 4,133 3,903 3,698

Operator work station, High end, Quad head, rack

mount 6,632 6,138 5,700 5,320 4,987 4,694 4,433 4,200

Workstation/raid combo, tower, 8 bay, no storage 9,354 8,657 8,039 7,503 7,034 6,620 6,252 5,923

CAMERAS

Secure for existing TH600 triangular housing (Cell

& Exercise Yard & Padded Cell 689 631 583 541 505 474 446 421

C10DN-6/C10DN-6X Day - Night camera excluding

lens 177 162 152 139 135 127 120 115

TF2.3DC auto iris lens 2.3 mm 278 278 278 278 278 278 278 278

Padded Cell IR, 850 nm, Wide Beam 60o, 12/24

VRB, Photocell 722 669 621 580 544 511 483 458

CMH02WMWP 571 528 491 458 429 404 382 362

TH600 triangular enclosure

CCTV Contract Final

Documents

Transcript of CCTV Contract Final